Perry & Wharton

In this matter before the Family Court of Australia, the wife sought orders for the sale of a real property. The husband did not participate in the proceedings. The property was registered in the name of a company controlled by the husband, which had subsequently been placed into liquidation. The liquidator of the company had also been joined as a respondent, having incurred fees and legal expenses in prior County Court proceedings where it was declared that the company held the property on trust for the husband.

The court was required to determine several legal issues. Primarily, it needed to decide whether to order the sale of the property and, if so, who should have conduct of that sale. The court also had to consider the wife's application for sole occupation of the property pending its sale and how the proceeds of sale should be distributed, particularly in light of the liquidator's claim for fees and expenses.

Macmillan J reasoned that the wife had a greater interest in the outcome of the sale than the liquidator, as the proceeds would ultimately satisfy her claim and any amounts owed to the liquidator. Consequently, the court ordered that the wife have conduct of the sale, selecting the selling agent and determining the mode of sale. Pursuant to section 114(1) of the Family Law Act 1975 (Cth), the wife was granted sole use and occupation of the property, with the husband restrained from accessing or interfering with it. The proceeds of sale were to be distributed first to discharge any registered mortgagee, then to meet the costs of sale, with the balance to be held on trust by the wife's solicitor pending further order.