Petridis & Petridis
[2021] FamCA 154
•19 March 2021
FAMILY COURT OF AUSTRALIA
Petridis & Petridis [2021] FamCA 154
File number(s): HBC 133 of 2018 Judgment of: MCCLELLAND DCJ Date of judgment: 19 March 2021 Catchwords: FAMILY LAW – PROPERTY – Injunctions – Leave for bankrupt to appear for limited purpose – Where the husband seeks ambiguous orders injuncting the Trustee in Bankruptcy from acting as a vendor in the sale of the properties – Where the husband has an application on foot to set aside or annul his bankruptcy – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 79(12) Cases cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618.Number of paragraphs: 17 Date of hearing: 19 March 2021 Place: Sydney by web conference Counsel for the Applicant: Mr Petridis appearing in person by telephone Counsel for the First Respondent: Mr McKenna by video Solicitor for the First Respondent: Ogilvie Jennings Counsel for the Fourth Respondent: Mr Trezise by video Solicitor for the Fourth Respondent: Dobson Mitchell Allport Solicitor for the Fifth Respondent: Ms Scolyer of Murdoch Clarke by video Counsel for the Sixth Respondent: Mr F Petridis appearing in person by video ORDERS
HBC 133 of 2018 BETWEEN: MR PETRIDIS
Applicant
AND: MS PETRIDIS
First RespondentL PTY LTD (A.C.N. …)
Second Respondent
M PTY LTD (A.C.N. …)
Third Respondent
(and others named in the Schedule)
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
19 MARCH 2021
THE COURT ORDERS THAT:
1.The Applicant husband is granted leave to intervene in these proceedings today for the purpose, and sole purpose, of making his Application in accordance with the Application in a Case filed 5 March 2021.
THE COURT NOTES THAT:
A.The Fourth Respondent Trustee in Bankruptcy opposed leave being given to the First Respondent husband to intervene for the purpose of making his Application.
B.Leave to intervene given in respect to today’s proceedings is leave to intervene for the purpose of this particular Application filed on 5 March 2021 and leave has not been given to the husband to intervene generally at this stage.
THE COURT FURTHER ORDERS THAT:
2.The Application in a Case filed 5 March 2021 is dismissed.
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 Petridis & Petridis 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
McClelland DCJ:
These proceedings concern an Application in a Case filed 5 March 2021 by Mr Petridis (“the husband”). The substantive proceedings concern an Application for final property orders between Ms Petridis (“the wife”), L Pty Ltd (“the Second Respondent company”), M Pty Ltd (“the Third Respondent company”), Mr Tamson, Trustee in Bankruptcy for the husband, (“the Fourth Respondent trustee”), K Council (“the Fifth Respondent Council”) and Mr F Petridis, the adult child of the husband and wife, (“the Sixth Respondent”).
In respect to the substantive proceedings, on 3 December 2020, I made orders, by consent, for the wife, the Fourth Respondent trustee, and the Second and Third Respondents, as vendors, to do all acts and things to place the properties at C Street, Suburb E and H Street, Suburb E in the State of Tasmania (“the properties”) on the market for sale.
Pursuant to s 79 (12) of the Family Law Act 1975 (Cth), as the Fourth Respondent trustee is a party to the proceedings, except with the leave of the court, the bankrupt party to the marriage, being the husband, is not entitled to make a submission to the court. However, for the sole purpose of making submissions in respect to this limited Application, I grant the husband leave to intervene. For reasons which I will detail below, I dismiss the Application in a Case filed by the husband.
The husband is seeking that the following order be made:
Injunction to restrain order for sale of properties at of H Street and C Street Suburb E.
The evidence relied upon by the husband to support the order sought is set out in his Affidavit filed 5 March 2021 which states:
1.As stated in Part D of the application I have made an application in the federal court in Sydney to annul my bankruptcy.
The order for sale of the properties made in this court has so far been delayed by failure for two months to erect for sale notices.
2.I also feel quite strongly that there is a possibility either of the properties will be sold for less than their market value, possibly o a nominee of a creditor in my estate or other nominee.
The date set foreclosure of the sale is set to be three months from 5th December 2020.
(As per original)
The reasons why I dismiss the husband’s Application are as follows.
The order sought by the husband is unsatisfactorily ambiguous. It is important to note that an injunction has serious consequences for a person or persons who are in breach of such an injunction including potentially being exposed to a penalty for being in contempt. Therefore, in those circumstances, the Court expects that the wording of any proposed injunction should be clear and unambiguous and comprehensible by that person or those persons impacted or potentially impacted by the restraint sought.
In these proceedings, the husband sought to clarify the purpose and intent of the order he seeks. He explained that, in effect, he is not seeking to prevent the sale of the properties but rather he is seeking to prevent the Fourth Respondent trustee having a role to play in respect to that sale.
In explaining his reasons for seeking such an order, the husband made a number of allegations of not only incompetence but actual impropriety on the part of the Fourth Respondent trustee. This is in circumstance where there is no evidence before the Court that justifies those allegations.
Further, it is not for the Court to craft an injunction, on what is stated to be the purpose and intent of the Applicant, in circumstances where the parties have not been give notice of any such revised wording.
Even if the Application or the order sought had been in a form which was comprehensible and had the effect of that sought by the husband, I would have declined the Application for the following reasons.
It is well known that the principles in respect to an Application for an injunction, particularly in the circumstances of this case where it is sought by a third party to the proceedings, requires the Court to be satisfied that the applicant has established a serious question to be tried and that the balance of convenience favours the granting of the injunction: see Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618.
No evidence has been presented that satisfies the Court that the husband has reasonable prospects of succeeding in his application to annul the bankruptcy which is the foundation of the husband’s discontent with the actions of the Fourth Respondent trustee. Therefore, the evidence presented in these proceedings has not satisfied the Court that there is a serious question to be tried in the Federal Circuit Court which is the Court to which the husband has made an application to set aside the bankruptcy that has been declared against him.
Further, even if the Court had been satisfied that the husband had established the existence of a serious question to be tried, the Court is not satisfied that the balance of convenience favours the husband.
This is because of the fact that delay in the properties being sold would leave the property of the parties, in respect to which the Fourth Respondent trustee has an interest, being exposed to ongoing legal proceedings bought by creditors of the husband. Costs associated with those proceedings has the potential to significantly reduce the property available for distribution not only to the wife but also to creditors.
Additionally, in terms of my exercise of discretion I have had regard to the following:
·The Fifth Respondent council has refrained from commencing litigation to enforce its claim for outstanding council rates as a result of the consent order entered into on 3 December 2020. The Fifth Respondent Council has therefore acted to its detriment and it would not be proper in those circumstances to grant the injunction sought by the husband.
·The orders for the sale of the property were made on 3 December 2020 and it has been left until 5 March 2021 for the husband to make his application for the orders that he is seeking. This is in circumstances where the husband was present in the Court at the time those orders were made and therefore had reasonable knowledge of the orders. In the circumstances where the orders were made for a sale to occur in accordance with a clear and agreed timetable, that delay is significant.
·Counsel for the Fourth Respondent trustee has indicated that his client will not sign any contract for the sale of the relevant properties until after 27 March 2021, being a date that is after the date that the husband will be before the Federal Circuit Court of Australia on 25 March 2021.
·Pursuant to the orders made on 3 December 2020, as agreed by the parties on that day, the balance of the proceeds of the sale of the properties will be held in the trust account of the Fourth Respondent trustee’s legal practitioners. In those circumstances, after paying costs associated with the sale and acknowledged debts, the net proceeds after payment of those amounts would be held in a trust account and not dissipated. In other words, the proceeds of sale would still be available to be distributed in accordance with any subsequent orders of the Court.
Accordingly, for all these reasons, I am not satisfied that there is justification for the orders sought by the husband in his Application in a Case and I, therefore, dismiss that Application.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 23 March 2021
SCHEDULE OF PARTIES
HBC 133 of 2018 Respondents
Fourth Respondent:
MR TAMSON
Fifth Respondent:
K COUNCIL
Sixth Respondent:
MR F PETRIDIS
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