Perpetual Ltd and Bourke and Ors

Perpetual Ltd sought to intervene in proceedings between a husband and wife, and subsequently applied to set aside earlier orders made on 17 March 2010. The dispute concerned the sale of a property, with Perpetual Ltd appearing to have an interest in its settlement. The matter came before Dessau J in the Family Court of Australia.

The primary legal issue before the court was whether to grant Perpetual Ltd leave to intervene in the proceedings and, if so, to set aside existing orders and substitute new ones to facilitate the sale of the property. This involved considering the application of sections 79A(1)(a) and (1)(b) of the *Family Law Act 1975* (Cth), which allow for the setting aside of financial orders in certain circumstances, including fraud, duress, or a miscarriage of justice.

Dessau J, by consent of the parties, ordered that Perpetual Ltd be granted leave to intervene. The court then set aside paragraphs 1 to 6 of the previous orders and made new orders in their place. These new orders mandated that the husband, wife, and a third party cooperate in the sale of the property by Perpetual Ltd. The wife was also ordered to withdraw any caveats she had placed on the property title at her own expense. Crucially, the proceeds of the sale were to be used to cover all costs associated with the sale, outgoings, and Perpetual Ltd's entitlements, including its principal debt, interest, discharge fees, and enforcement costs. The intervener's application filed on 29 September 2010 was otherwise dismissed, and there were no orders as to costs.