Owen & Owen (No. 4)

[2021] FamCA 63

FAMILY COURT OF AUSTRALIA

Owen & Owen (No. 4) [2021] FamCA 63

File number(s):	CAC 1752 of 2016
Judgment of:	GILL J
Date of judgment:	16 February 2021
Catchwords:	FAMILY LAW – balance of convenience to protect current rights of parties pending s 79A consideration
Legislation:	Family Law Act 1975 (Cth) s 79A
Cases cited:
Number of paragraphs:	10
Place:	Sydney
Counsel for the Applicant:	Mr Batey
Solicitor for the Applicant:	Frank Law
Solicitor for the First Respondent:	Self-representing
Solicitor for the Second Respondent:	No appearance

ORDERS

CAC 1752 of 2016

BETWEEN:

MS OWEN

Applicant

AND:

MR OWEN

First Respondent

MS A OWEN

Second Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	16 FEBRUARY 2021

THE COURT ORDERS THAT:

1.Pending the release of the first respondent from any guarantee either in his personal capacity or as director of J Pty Ltd, the Orders made 22 December 2020 continue.

2.For the purpose of obtaining the release provided in Order 1, the first respondent within 7 days submit to L Bank the completed “Request to Remove a Borrower’s Name from a Fixed Rate Loan”, being Annexure “A” to these Orders.

3.Upon L Bank removing the first respondent’s name from the fixed rate loan, then the applicant is to provide to the first respondent within 28 days or such further period as requested by the bank, a document from the bank certifying the applicant in her personal capacity or in her capacity as a director of J Pty Ltd is solely responsible in the capacity as both borrower and guarantor for any mortgage or borrowings secured on the property N Street, H Town, NSW (“the H Town Property”).

4.In the event the first respondent receives any demand or notice of request for payment from L Bank for borrowings secured on the H Town Property then he have liberty to re-list the proceedings on an urgent basis on 7 days’ notice to the Court and the other parties.

5.In the event the applicant receives any demand or notice of request for payment from Commonwealth Bank of Australia for borrowings under the Veridian Line of Credit, account numbers ending in #…73 or #…81, then she have liberty to re-list the proceedings on an urgent basis on 7 days’ notice to the Court and the other parties.

6.In the event that the applicant receive any demand or notice of request for payment from M Bank for borrowings secured on the G Town Property then she have liberty to re-list the proceedings on an urgent basis on 7 days’ notice to the Court and the other parties.

7.The first and second respondents be restrained, in their personal capacity and in their capacity as officeholders and or shareholders in K Pty Ltd, from:

(a)Appointing a new director;

(b)Distributing further shares;

(c)Selling the property situate at Q Street, G Town NSW (“the G Town Property”);

(d)Causing the G Town Property to become in arrears;

(e)Making any distributions as trustee of the P Property Trust without first giving 28 days’ notice to the parties to these proceedings.

8.The applicant and first respondent be restrained from dealing with, disposing of or further encumbering of the property at R Street, D Town Property, NSW folio identifier … without 28 days of notice to the other parties to these proceedings.

9.The applicant be restrained from dealing with disposing of or further encumbering the H Town Property without 28 days of notice to the other parties to these proceedings.

10.The second respondent be granted leave within 14 days’ notice to the other parties to list the matter before the Family Court of Australia concerning her rights under Order 7.

11.The first respondent supply answers verified by affidavit to the Request for Answers to Specific Questions contained in a letter from Frank Law to the first respondent dated 25 January 2021, and being Annexure “B” to these Orders, within 28 days of the date of these Orders.

Directions for Preparation of s 79A Proceedings

12.The first and second respondent file and serve a Response to the wife’s Application filed 28 January 2021 within 14 days.

13.The parties file all affidavit evidence and a Financial Statement on which they seek to rely on or before 1 April 2021.

14.The parties have liberty to issue more than five subpoenas.

15.The applicant pay as and when they fall due all mortgage payments for all loans secured on the H Town Property.

16.The costs of the parties of today be reserved.

17.The parties will attend by telephone on the Registrar of the Canberra Registry of the Family Court of Australia on a date to be advised for the purpose of a compliance check.

18.The Registrar will allocate a date for the matter to come back before me in order to list the matter for trial dates.

19.The parties have liberty to serve these documents on relevant persons to ensure that they are effective in protecting the rights of the parties and in particular, any real estate agent in respect of the H Town property.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Owen & Owen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

GILL J

1. In this matter reasons are given in short form. 

2. This matter comes before the Court as a result of a s 79A application to amend or set aside the parties’ final settlement of their property proceedings. That settlement of their property proceedings involved litigation between the husband, the wife and the husband's mother. Although the proceedings were served upon the husband's mother she has made no appearance today.

3. The s 79A matter is likely to come on for trial in July or August 2021. It involves issues, at least in part, flowing from non-compliance with, or inability to comply with, the original orders. In some part that inability to comply appears to be factually conceded. At issue before me today are the arrangements to prepare the matter for trial and to regulate the subject matter of the currently challenged orders.

4. Although a simplification, the impugned orders concerned three items of real property and indemnities in relation to each.  If the orders are not regulated, one property is at risk of sale against the wishes of the wife who is to receive it, being the property held at H Town. 

5. The husband concedes that this should not occur and consents to a number of orders to ensure that it does not occur, including the continuation of injunctive relief that the parties previously agreed to before Deputy Chief Justice McClelland in December 2020. 

6. What does remain challenged are a suite of protections touching upon the other two properties in particular at G Town and D Town.  The protections sought by the wife are to maintain the status quo in respect of the G Town property.  The protections in relation to the D Town property are to impose a notice requirement on the husband should he sell that property. 

7. Each of the suites of protections ought to be given in this case where firstly part of the orders sought will give the second respondent (that is the husband's mother) the right to relist the matter in order to protect her interests given her failure to appear today.

8. It is also appropriate that protections should be given in respect of the D Town property.  The D Town property is meant to come under the husband's control as part of the previously made orders.  The corollary of the property coming under his control is that he is to indemnify the wife in respect of that property.  The husband asserts that he has done so, at least insofar as he has executed an indemnity.  However, he concedes that although he has executed the indemnity he does not have the means to in truth indemnify the wife.  That is, there is a debt on the D Town property that he anticipates the sale of the D Town property will not expunge, and asserts that he has no other means by which the shortfall could at present be made up.  What the wife seeks is notice from the husband to ensure that her position in respect of the sale of the D Town property is not compromised.

9. It should be noted that a number of the orders sought by the wife, in particular orders 1-4 of Exhibit O2 are conceded. The balance, however, strike a reasonable balance being the balance of convenience to protect the current rights of the parties pending the s 79A consideration. They minimise restrictions on those rights only in so far as it is necessary to avoid a compromise of the rights of each party as they proceed towards the resolution of the s 79A proceedings.

10. Orders will accordingly be made in accordance with the wife's minute of orders as amended comprised as Exhibit O2.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       23 February 2021