Philips & Samuels - [2017] FamCA 125

FAMILY COURT OF AUSTRALIA

PHILIPS & SAMUELS

[2017] FamCA 125

FAMILY LAW – PROPERTY – Interim injunctions – Where previous interim orders to give effect to rural property sales – Where ongoing conflict between the parties – Where delay in sale causing significant increase in secured debt – Where appropriate to amend previous orders to provide clarity as to rights and obligations and for an orderly sale – Where appropriate to appoint trustee for sale to implement sale orders – Where wife’s conduct frustrating sale of remaining stock on the property for purposes of property sale – Where appropriate to make injunctive orders to facilitate sale

Family Law Act 1975 (Cth) s 114

Martin & Martin and Ors [2013] FamCA 222

APPLICANT:

Ms Philips

RESPONDENT:

Mr Samuels

FILE NUMBER:

DUC

319

2014

DATE DELIVERED:

8 March 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

14 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms De Vere

SOLICITOR FOR THE APPLICANT:

Jones Rolfe Rudd

COUNSEL FOR THE RESPONDENT:

Ms Breeze

SOLICITOR FOR THE RESPONDENT:

Campbell Paton & Taylor

Orders 14 February 2017:

That the husband is hereby authorised and directed forthwith do all things necessary and sign all necessary documents so as to cause a sale of the livestock owned by the “V Trust” to be sold at the best price reasonably obtainable to W Pty Ltd via X Agents or in the event that such sale is not capable of proceeding then to sell such stock promptly at the best price reasonably available.
That the wife is hereby restrained from doing any act or thing or signing any document that may hinder or obstruct the sale provided for in the previous order and shall provide to any selling agent appointed by the husband free and unfettered access to the said stock and the parties’ property for the purposes of sale.
That the husband shall promptly inform the wife of any selling agent instructed by him on behalf of the “V Trust” other than X Agents and shall authorise the wife to be provided by any such selling agent any information or documents as to the sale of the stock that she may reasonably request from time to time.
That the husband is hereby restrained from receiving or disbursing any of the sale proceeds from the stock sale or sales and shall authorise and direct the selling agent to disburse the gross proceeds of sale in the following order and priority:
(a)In payment of selling agent’s commission and reasonable costs of and incidental to the sale if any.
(b)In discharge of any stock mortgage secured over the stock.
(c)In payment of the balance then remaining jointly to the solicitors for each of the parties Ms Y and Mr Z with such funds to be held by the said solicitors in trust in an interest bearing controlled money account for the “V Trust” pending further order of the court or the parties agreement in writing and to pay from such funds the following payments:
(i)AA Accounting for any outstanding accountancy fees relating to the “V Trust” only;
(ii)$3,450 to Company BB;
(iii)Outstanding water rates;
(iv)Trucking cancellation fees of $6,103;
(v)Outstanding council rates;
(vi)H Town Vet Hospital $494.78;
(vii)Outstanding superannuation contributions $456.00;
(viii)BOC Ltd $445.37;
(ix)Elgas $120.06; and
(x)otherwise other expenses and payments including reasonable business expenses relating to the trading operations of the “V Trust” (noting that the Trust will have little or no remaining stock after the sales provided for above) including but not limited to expenses and payments set out in Order 8 made on the 27 June 2016.
That the parties’ solicitors be at liberty to be paid their agreed reasonable expenses for the conduct of the controlled money account held on behalf of the “V Trust” from time to time.
That the wife be at liberty to provide to any selling agent appointed by the husband a sealed copy of these orders and the husband shall promptly provide a copy of these orders to any selling agent appointed by him.
Otherwise judgment reserved as to the remaining interim issues.

Orders:

That orders made on 27 June 2016 be varied as follows:
(a)That Order 11 be discharged and the following order be substituted:
11. That on or before 31 March 2017 the husband pay to E Pty Ltd as Trustee of the Samuels Superannuation Fund the sum of $1,210,000.00 and in consideration of that payment the husband and wife do all necessary things and sign all necessary documents so as to transfer to the husband the whole of the land comprised in Folio Identifier … and that those funds be paid into an interest-bearing account in the name of E Pty Ltd as Trustee of the Samuels Superannuation Fund requiring the joint signatures of the husband and wife and in default of the husband acquiring the said property by 31 March 2017 then the property shall be offered for sale by public auction with the parties’ jointly owned rural property “C Town” as a combine parcel.
That as and from 1 April 2017 Mr CC, Solicitor of H Town is hereby appointed Trustee for Sale of the parties’ jointly owned rural property known as “C Town” being the whole of the land comprised in Certificate of Title Folio Identifier Auto Consol …, Auto Consol …, Auto Consol …, Folio Identifier …, Folio Identifier … and in the event that the husband fails to acquire the superannuation land by 31 March 2017 Mr CC, Solicitor of H Town is appointed Trustee for Sale of the said superannuation land being the whole of the land comprised in Folio Identifier … and for the purposes of this order the said property or properties shall vest in the Trustee for Sale.
That the Trustee for Sale shall do all things necessary to give effect to the sale orders for the property or properties as a combined entity as provided for in orders made 12 February 2016 (as amended) and 27 June 2017 and orders made this day for the best price reasonably obtainable.
That the Trustee for Sale shall ensure that in the event that the husband acquires the superannuation land that the Contract for Sale of the remaining property “C Town” shall include appropriate terms and conditions addressing issues as to access, water rights and fencing as the superannuation land acquired by the husband such as would not unduly adversely affect the value of “C Town” property on sale.
That the Trustee for Sale shall have liberty to apply for directions or further or other orders as to the facilitation or enforcement of these orders.
That otherwise all pending interim applications before the Court be dismissed.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: DUC 319 of 2014

Ms Philips

Applicant

And

Mr Samuels

Respondent

REASONS FOR JUDGMENT

The present matters for determination relate to yet further interim applications made by the husband and wife in these protracted property proceedings.
A judgment in previous interim proceedings was delivered on 14 October 2016 in relation to previous interim applications. Those reasons for judgment provide an insight into the course of this matter that is outlined below.

Orders 12 February 2016

On 12 February 2016 certain interim orders were made by consent as to the prospective refinance of and, in default of refinance, the sale of the parties’ rural properties and the ongoing conduct of the business conducted thereon until sale in the following terms:
(1)All previous orders are discharged except order of 3 September 2015.
(2)The Husband to use his best endeavours to refinance all outstanding facilities owed to the National Australia Bank (“the NAB Loans”) secured by the property situate at and known as “[B Street]”, [C Town] in New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier Auto Consol …, Auto Consol …, Auto Consol …, Folio Identifiers …, Folio Identifier … (“[C Town]”) and to that end:-
2.1The Husband to provide to the Wife conditional or “in principle” approval in writing from a financial institution by no later than 15 April 2016;
2.2The Husband to provide to the Wife in writing by 15 April 2016:
2.2.1Draft financial statements to end February 2016 for all those entities listed at Order 1.3 of the Orders made 3 September 2015 and any other entity of which he is a director or shareholder;
2.2.2Confirmation in writing of the offer for the Husband’s interest in [D] Pty Ltd in the amount of $750 000.
(3)If the Husband complies with Order 2 herein by 15 April 2016 then the Husband shall continue to use his best endeavours to obtain a refinance of the NAB Loans up to and including 31 May 2016, and if the Husband fails to comply with Order 2 above by 15 April 2016 [C Town] and the Super Land shall be forthwith offered for sale in accordance with Order 5 herein.
(4)If the Husband has not obtained unconditional approval in writing confirmed to the Wife in writing of a refinance of the NAB Loans by 4.00 pm on 31 May 2016 then [C Town] together with the land described as Folio Identifier … (“the Super Land”) shall be forthwith offered for sale as set out in these Orders.
(5)In the event that the Husband fails to comply with Order 2 by 15 April 2016 OR a refinance by 31 May 2016 in accordance with Order 3 and subject to Order 14 then on 1 June 2016 and forthwith thereafter the parties on their own account and as Directors of [E Pty Ltd] as Trustee of the Samuels Superannuation Fund shall do all things necessary to market “[C Town]” together with the “Super Land” for sale by public auction and to that end:
5.1The price shall be as agreed by the parties and failing agreement as assessed by [F Valuers H Town];
5.2[F Valuers H Town] to conduct a valuation of the Super Land;
5.3The solicitor having carriage of the sale shall be [I Lawyers] of [H Town];
5.4The agent appointed shall be [Mr G] of H Town jointly with [J Real Estate] of [H Town].
(6)Upon sale of “[C Town]” and “the Super Land” the proceeds shall be disbursed as follows:
6.1In payment of conveyancing costs, commission and auctioneer’s costs;
6.2In payment of the amount equivalent to the Super Land as assessed by [F Valuers] to be held by I Lawyers in a controlled monies account to the [Samuels] Superannuation Fund;
6.3In discharge of the NAB Loans;
6.4The balance to be held by [I Lawyers] in a controlled monies account for the parties.
(7)From the date of these Orders until sale or refinance the Husband shall:
7.1Ensure that all sums arising from or in relation to “[C Town]” due to [Mr Samuels], [K Pty Ltd] and [The V Trust] are deposited directly into the Westpac Banking Corporation bank account number …01 (“the Westpac Account”) and shall direct [L Pty Ltd] and [M Pty Ltd] to that end;
7.2Continue to conduct a livestock trading business on “C Town” and to that end be at liberty to pay from the Westpac Account the following:
7.2.1Wages, superannuation contributions and disbursements incurred by [Mr N];
7.2.2Farming expenses being repairs and maintenance to “[C Town]”, utilities expenses, cropping expenses, weed control, livestock expenses, drenching, farm insurance, [O Town] Council rates and telephone costs;
7.2.3Company accountancy fees
7.2.4Interest to the ANZ
7.2.5Leasing costs and payments associated with:
7.2.5.1[Tractor]
7.2.5.2[4WD]
7.2.5.3[German Car]
7.2.6Horse expenses
(8)In addition to Order 7 above the Husband shall be entitled to withdraw from the Westpac Account $1,000.00 per week for personal expenses.
(9)…
(10)The Husband and Wife shall forthwith use their best endeavours to negotiate a moratorium on interest payments accumulating on the NAB Loans.
(11)The Husband will within 7 days transfer to the Westpac Account any funds received from [X Agents] currently held in his personal Commonwealth Bank of Australia account and shall within 7 days provide to the Wife copies of the bank statements from 1 July 2015 to the present for that account.
(12)The Husband to provide to the Wife a detailed account of the operations of [K Pty Ltd] and [The V Trust] not less than every 28 days to be accompanied by all bank statements for the period the first such accounting to be for the period 1 November 2015 to the date of these Orders and to be provided to the Wife within 14 days.
(13)In the event that the Husband effects a refinance offer in accordance with these Orders the Wife will simultaneously do all things necessary to transfer her legal title in “[C Town]” to the Husband not by way of interim property distribution and the Wife shall remain in residence on [C Town] until any final settlement.
(14)The parties do all things necessary to engage [F Valuers H Town] to value the Super Land both as a separate entity as is and as a saleable combined parcel together with “[C Town]” and in the event that the separate entity value is less than the saleable value as a combined parcel with [C Town] then the Super Land shall be offered for sale together with “[C Town]” in accordance with the sale provisions of these Orders and if the value of the Super Land as a stand-alone entity is in excess of the combined value with sale with “[C Town]” then the Super Land shall not be offered for sale.
(15)In the event that “[C Town]” is to be sold in accordance with these Orders the Husband shall have the first option to purchase the Super Land as valued at whichever value is higher as between the sell with value and the stand alone value.
It was common ground that the husband was unable to refinance existing debt as contemplated by the above orders and that the property was to be sold as a consequence. The auction sale was listed for 21 October 2016. It did not proceed.
It was also common ground that the husband’s option to purchase the Super Land is at a price of $1.12 million as determined by an agreed single expert.

The 27 June 2016 Orders

On 27 June 2016 in the context of an Application in a Case filed by the wife orders were ultimately made by consent as to the ongoing conduct of the business conducted on the parties’ rural property and the application of income and the husband’s proposed purchase of that part of the parties’ rural properties owned by the parties’ self-managed superannuation fund in the following terms, as subsequently amended under the slip rule:
(1)The parties agree that [K Pty Ltd]ATF the [V Trust] will continue to operate a [livestock] trading business on “[C Town]” including the land owned by [E Pty Ltd] ATF the Samuels Superannuation Fund as follows:
(a)The Husband to provide to the Wife written notice of his intention to trade livestock with either of [L Pty Ltd ] and/or [M Pty Ltd] including details of the amount of [livestock] to be traded, the price and the costs of purchase and sale and the Wife shall within 3 business days of receiving such notice provide her authorisation for the trade in the circumstances where she agrees and the Wife may not unreasonably withhold her consent and both parties have liberty to apply on 3 days’ notice on this issue.
(b)The Husband and the Wife direct either or both of [L Pty Ltd] and [M Pty Ltd] to deposit the proceeds of sale after payment of the stock mortgage and costs of trade and agents commission into the [K Pty Ltd] Westpac Banking Corporation account.
(2)Both of the Husband and the Wife be and are hereby restrained from opening any further account with any bank on behalf of [K Pty Ltd] ATF [The V Trust].
(3)All trading activity as from the date of these orders in the [K Pty Ltd] bank account shall be by way of direct debit signed by both the Husband and the Wife or by cheque with both the Husband and the Wife to sign and both the Husband and the Wife are restrained from conducting any internet or electronic funds transfer banking on the [K] account unless agreed in writing.
(4)That the Wife be hereinafter referred to as [Ms PHILIPS] formerly known as [Ms Samuels].
(5)That the Husband and the Wife be and are hereby restrained by injunction until further order from doing any act or thing which would or which could result in further encumbering any asset held by the husband and the wife jointly, the partnership of [Mr and Ms Samuels], [K Pty Ltd] ATF [The V Trust] and [E Pty Ltd] ATF the [Samuels] Superannuation Fund without first obtaining the consent in writing of the other party.
(6)That Order 7.2 and Order 8 of the orders made 12 February 2016 be discharged.
(7)That the Husband and the Wife within 48 hours of the date of these Orders do all things necessary including signing all documents necessary to enable the Husband and the Wife to have joint authority only to operate the existing bank accounts of:
(a)[K Pty Ltd] ATF for [The V Trust]
(b)[E Pty Ltd] ATF the [Samuels] Superannuation Fund
(c)The Partnership of [Mr and Ms Samuels],
and all accounts will hereinafter operate by way of direct debit and/or cheque authorised by both the Husband and the Wife unless agreed in writing.
(8)That the Husband and the Wife will have the authority to authorise and effect the payment of the operating expenses of [The V Trust] as follows:
(a)Weekly wages to the Husband in the amount of $1,185.00 calculated on a weekly arrears basis as from 27 June 2016;
(b)Wages and superannuation owing to Mr [N] in relation to his employment as Manager of “[C Town]”;
(c)Necessary disbursements incurred by Mr [N] in the course of his employment with “[C Town]”;
(d)Necessary farming expenses notified in writing by the Husband to the Wife prior to the expenditure being paid and approved by the Wife relating to repairs and maintenance to “[C Town]” , utilities expenses for “[C Town]”, cropping expenses, weed control, livestock expenses, drenching, farm insurance, [O Town] Council rates and telephone costs;
(e)P School school fees at 100[per cent] including all arrears for 2015 and 2016;
(f)Leasing costs and payments associated with:
(i)[ Tractor]
(ii)[4WD]
(iii)[German car] ( x 2)
(g)Horse expenses including horse float expenses
(h)All marketing and agency expenses associated with the sale of “[C Town]” and the Super Land.
(i)Any rental payments due and owing as from 27 June 2016 from [K Pty Ltd] and/or the partnership of [Mr and Ms Samuels] to [E Pty Ltd] ATF [The Samuels] Superannuation Fund and any back rent owing to be paid as soon as is practicable.
(j)Electricity and gas expenses for the residences of the Husband and the Wife.
(9)That the Wife be at liberty to produce a copy of these Orders to one [Mr Q] and that forthwith the Husband and the Wife do all things necessary to ensure that as from the date of these orders [Mr Q] deposit the rental fees relating to the cottage on “[C Town]” into the Westpac Bank account in the name of [K Pty Ltd] ATF [The V Trust].
(10)That in addition to Order 12 of the 12 February 2016 Orders that the Husband provide to the Wife commencing Friday 1 July 2016 by no later than 4 pm and thereafter at monthly intervals a written account of the farming activities on “[C Town]” including the Super Land which will include but not be limited to the provision of copies of all primary documentation, invoices, account sale notices, bank statements and all and any correspondence of:
(a)All [livestock] purchases and sales occurring in conjunction with or in relation to “[C Town]”, including the Super Land and K Pty Ltd, its agents and nominees, for the preceding monthly period;
(b)All monies received in relation to the activities described in Order 8(a) above including:
(i)Amount received per head of [livestock];
(ii)Dates received
(iii)Details of bank accounts to which funds for such sales were directed including name of financial institution, name of account holders
(c)All operational activities occurring on [C Town] including but not limited to cropping activities and expenses, weed control, drenching, farm maintenance.
(11)The Husband shall exercise his option to purchase the Super Land pursuant to Order 14 of the 12 February 2016 Orders on or before the date of auction of the Super Land and [C Town] as a combined parcel the exercise of his option shall include evidence of unconditional finance approval and execution of an unconditional contract for sale of land.
(12)[E Pty Ltd] to reimburse the parties’ costs of the Super Land valuation within 14 days.
(13)That the Husband cause the … tractor to be delivered to [C Town] by 4 pm on Friday 1 July 2016.

It was in the context of the proposed sale of property pursuant to those orders that the wife made further application to the Court.
The wife filed a further Application in a Case on 13 September 2016 seeking to vary the arrangements agreed to in the previous consent orders as to the sale of the subject property and seeking certain injunctions.
In summary the wife sought the following orders:
a)that the properties comprising “C Town” including the land owned by E Pty Ltd ATF the Samuels Superannuation Fund be sold by public auction on 21 October 2016 and that both parties be restrained from doing any act or thing that may or may reasonably be likely to impede the auction,
b)that upon a successful sale at auction the husband do all things necessary to execute and facilitate an exchange of contracts and to complete the sale,
c)that the husband be restrained from doing any act or thing likely to frustrate the sale of the property including refusing permission for any person introduced by the selling agent access to the property and refusing permission to any agent with carriage of the sale of the property to commence or continue any marketing campaign as recommended by that agent,
d)that certain named persons being Mr R and Mr U be permitted access to the property for the purposes of assessing the property for sale either as agent or interested purchaser,
e)that the husband upon receiving any request for information or documents from any agent with the carriage of the sale provide such information or documents promptly,
f)that the wife be at liberty to provide a copy of orders to any listing agent with the carriage of the sale,
g)that in the event that the husband wishes to exercise his option to purchase the land owned by E Pty Ltd he shall prior to 27 September 2016 provide to the wife’s solicitors’ written evidence of an unconditional offer of finance to fund the purchase of that property in the sum of $1.12 million and that in default the husband forfeit his option to purchase such land as provided in orders made on 12 February 2016,
h)that in the event that the husband contravenes any of the above orders the wife shall forthwith have sole authority for management of the sale of the properties without further recourse to the Court and be authorised to sign any documents on behalf of the husband so as to give effect to the sale,
i)costs.
The wife has asserted that the husband has sought to frustrate the sale of the subject properties as provided for in orders of February 2016 in that:
a)the husband has failed to sign the requisite selling agreement with the listing agent,
b)the husband has refused to allow Mr R, a rural specialist engaged by one of the selling agents, to attend the property,
c)the husband has refused to show agents around the property, refused to supply a paddock map and refused to provide relevant information about the property including information as to water pumps and other relevant features necessary for a proper sale,
d)the husband has sought to delay the initial auction date of 30 September 2016 until early November, which resulted in an agreement that the auction be deferred until 21 October 2016,
e)the husband has refused access to the property to selling agents and prospective buyers.
The husband filed a Response to the wife’s Application in a Case and in that Response in summary sought relevantly the following orders:
a)that the Application in a Case be dismissed,
b)that order 14 dated 12 February 2016 and order 11 dated 27 June 2016 be discharged,
c)that order 5.4 dated 12 February 2016 be amended to delete Mr G as agent for the sale of the properties,
d)that the wife provide disclosure of certain specified documents,
e)costs.
The husband asserted:
a)that he signed the agency agreement for the sale of the property on 21 July 2016, having first signed the agency agreement on 31 May 2016,
b)that he was informed by one of the selling agents that it was proposed that a third party market the property,
c) that the selling agents recommended to him that the proposed sale should occur in late October or early November,
d)that recent rainfalls had rendered it difficult to grant access to the property for the purposes of proper marketing,
e)that, if the sale proceeds as proposed, certain stock on the property would need to be agisted by the husband on settlement of the sale and that he had nowhere to agist that stock and would be forced to sell that stock prematurely,
f)that a compromise auction date was agreed as 21 October 2016 and that he and the wife signed the revised agency agreement accordingly,
g)that he denied any failure to cooperate with one of the listing agents and that he formed the view that as a consequence of certain correspondence the listing agent had acted inappropriately,
h)that on 26 August 2016 the husband purported to terminate the agency agreement with that listing agent,
i)that subsequently he had met with both listing agents and a revised agency agreement was signed on 2 September 2016 with the wife signing the revised agreement a few days later,
j)that during his meeting with both listing agents it was agreed that no inspection would occur until the commencement of the advertising campaign on 19 September 2016 and that a Mr T and a Mr S be the only agents attending at the property for the purposes of marketing and the sale. It is not clear whether the wife was present at this meeting or part of the asserted agreement. There is no assertion by the husband that she was.
k)that Mr T sought to show a potential buyer the property prior to the commencement of the advertising campaign and sought to bring forward the commencement of the advertising campaign to 15 September 2016,
l)that the husband has not been informed of the venue and details of the proposed auction nor been provided with any advertising material for approval,
m)that Mr T has expressed his concern that the husband and wife “literally can’t agree on anything regarding the sale”,
n)that he seeks an order that Mr T’s firm Mr G and Co no longer be one of the agents for the sale,
o)that he seeks to take issue with the single expert valuation of the Super Land as provided for in orders of February 2016,
p)that the combined sale of the properties together will cause difficulty in determining the sale proceeds of the non-super land “C Town” that is subject to mortgage to the NAB. He provides no basis for this contention.
The substance of those applications before the Court was to amend or vary orders previously made by consent to facilitate an orderly sale of the subject properties.
It was and still is clear that the parties continued to be at odds and were unable to sensibly agree on many issues. The wife’s application was in substance an application seeking to address as it were anticipatory breaches by the husband in relation to the listing agent’s marketing campaign. The husband sought the replacement of one of the listing agents as a consequence of what is to be inferred as some unilateral agreement reached by him with the two listing agents in the absence of the wife.
In the then existing circumstances it was not appropriate to make orders as sought by either party. It was expected that property would proceed to auction as agreed by the parties on 21 October 2016 with the husband having the option to acquire the super land at an agreed value.
It was noted in the reasons for judgment:
21. Should the proposed auction not proceed for good reason as a consequence of the adverse behaviour or conduct of one or other of the parties then appropriate application may then be made for the appointment of a trustee for sale who would facilitate an orderly sale of the subject properties.
Somewhat unsurprisingly the matter has returned yet again.

The present applications

On 26 October 2016 the wife filed a further Application in a Case.
Initially, the new interim applications were heard on 14 November 2016 with directions that short written submissions as to the issues for determination be filed and served by 18 November 2016 and that upon receipt of written submissions judgment be reserved to a date to be fixed.
Subsequently, the husband made an application for leave to reopen the interim hearing. The application for leave to reopen was resolved by agreement and the hearing resumed on 14 February 2017 with circumstances requiring some urgency in relation to the proposed sale of a significant number of stock remaining on the properties. In that circumstance orders were made on 14 February 2017 following submissions with reasons for those orders incorporated in these reasons for judgment below.
Orders were made on 14 February 2017 as follows:
(1)The husband is hereby authorised and directed forthwith do all things necessary and sign all necessary documents so as to cause a sale of the livestock owned by the “V Trust” to be sold at the best price reasonably obtainable to W Pty Ltd via X Agents or in the event that such sale is not capable of proceeding then to sell such stock promptly at the best price reasonably available.
(2)The wife is hereby restrained from doing any act or thing or signing any document that may hinder or obstruct the sale provided for in the previous order and shall provide to any selling agent appointed by the husband free and unfettered access to the said stock and the parties property for the purposes of sale.
(3)The husband shall promptly inform the wife of any selling agent instructed by him on behalf of the “V Trust” other than X Agents and shall authorise the wife to be provided by any such selling agent any information or documents as to the sale of the stock that she may reasonably request from time to time.
(4)The husband is hereby restrained from receiving or disbursing any of the sale proceeds from the stock sale or sales and shall authorise and direct the selling agent to disburse the gross proceeds of sale in the following order and priority:
(a) In payment of selling agent’s commission and reasonable costs of and incidental to the sale if any,
(b) In discharge of any stock mortgage secured over the stock,
(c) In payment of the balance then remaining jointly to the solicitors for each of the parties Ms Y and Mr Z with such funds to be held by the said solicitors in trust in an interest bearing controlled money account for the “V Trust” pending further order of the court or the parties agreement in writing and to pay from such funds the following payments:
(i) AA Accounting for any outstanding accountancy fees relating to the “V Trust” only;
(ii) $3,450 to Company BB;
(iii) Outstanding water rates;
(iv) Trucking cancellation fees of $6,103;
(v) Outstanding council rates;
(vi) H Town Vet Hospital $494.78;
(vii) Outstanding superannuation contributions $456.00;
(viii) BOC Ltd $445.37;
(ix) Elgas $120.06; and
(x) otherwise other expenses and payments including reasonable business expenses relating to the trading operations of the “V Trust” (noting that the Trust will have little or no remaining stock after the sales provided for above) including but not limited to expenses and payments set out in Order 8 made on the 27 June 2016.
(5) The parties’ solicitors be at liberty to be paid their agreed reasonable expenses for the conduct of the controlled money account held on behalf of the “V Trust” from time to time.
(6) The wife be at liberty to provide to any selling agent appointed by the husband a sealed copy of these orders and the husband shall promptly provide a copy of these orders to any selling agent appointed by him.

The wife’s case

In that present application the wife in summary sought the following orders:
a)that the wife have sole authority to the exclusion of the husband to effect a sale of the land owned jointly by the husband and wife and known as “C Town” as a combined parcel with the land owned by the Samuels Superannuation Fund, and
b)that the wife be authorised to have the conduct of the sale including directing that the reserve price for the land known as lot 300 (the superannuation fund land) shall be $1.12 million and that the reserve price for the land known as “C Town” shall be $4.48 million and that in the event that the property sell for a combined price in excess of $5.6 million then the purchase price attributed to each parcel be on a pro rata basis to the reserve prices,
c)a declaration that the time period in which it was open for the husband to purchase the superannuation land pursuant to Order 14 of 12 February 2016 has expired.
The wife relied upon her affidavit filed 26 October 2016 and her subsequent affidavit filed 24 January 2017.
Orders were made on 3 February 2017 for the wife to file and serve any further affidavit evidence sought to be relied on by 10 February 2017. She did not do so. She sought to file in Court further affidavit evidence at the commencement of the resumed hearing over the objection of the husband. Leave to do so was refused.
The wife asserts there have been ongoing difficulties in relation to the sale of the two rural properties. There have been issues in relation to agents authorised to carry out inspections, the issue as to whether there should be special conditions in the proposed contracts for sale of the two separate parcels, whether there should be one contract for the sale of the combined parcels or two separate contracts, issues as to the proposed reserve price particularly for the superannuation land at the proposed auction, the existence of an old development approval in relation to the subject properties and whether there has been “substantial commencement” in circumstances where otherwise the development approval may have expired by effluxion of time and the issue in relation to access, water rights and fencing as between the two properties in the event that they were sold to unrelated parties.
As at October 2016 it appeared that the parties’ overall indebtedness to the National Australia Bank was just under $5.5 million in respect of which there has been in the past an unsuccessful debt mediation.
It is the understanding of the mortgagee bank National Australia Bank that the two properties would be sold as a whole and that by reason of previous valuations that portion of the overall sale price attributed to the superannuation block would be 20 per cent with the remaining proceeds of sale to be paid by bank cheque to the National Australia Bank.
No auction has as yet taken place.
As a consequence of the agreed valuations obtained by the parties and the orders made on 12 February 2016, the husband was provided with the opportunity of purchasing the superannuation land for $1.12 million being a significant premium over its stand-alone value. Orders provided that he exercise his option to so do on or before the date of the proposed auction sale provided that he produce evidence of unconditional finance approval and execute an unconditional contract for sale of land.
The wife complains that the husband has insisted, inconsistently with the provisions of the consent orders on 12 February 2016 that there be special conditions inserted into the contract for sale of the primary rural property requiring the purchaser to provide a right of way and easement services favouring the superannuation land and requiring the construction of extensive fencing.
There is no inconsistency. Orders for sale of “C Town” do not provide for an unconditional contract. It is appropriate in the context of this broad acre rural setting that such contract be subject to such terms and conditions as are reasonable in all the circumstances as discussed below.
The wife further asserts that the husband has not provided satisfactory evidence of an unconditional finance approval that would facilitate him exercising his option to purchase the superannuation land at the proposed auction sale.
The wife expresses concern as to the ever increasing debt to the National Australia Bank whilst the sale of the primary rural property is delayed. Between 30 August 2016 and 20 January 2017 the indebtedness to the National Australia Bank increased by just over $137,000.00.
The wife further complains that notwithstanding the constraints imposed by previous orders the husband has, in breach of those orders, made various payments from the trading account from V Trust funds including a payment of a capital sum of $30,000.00 to his sister (allegedly in repayment of a loan) and what appears to be capital distributions to himself of about $17,000.00. Otherwise, the husband has failed to authorise that the parties jointly operate the Westpac Banking Corporation through which the V Trust enterprise is conducted.
As a consequence, the wife has informed the husband that she would only agree to future sale of stock on the basis that sale funds are deposited to a controlled monies account or a solicitor’s trust account.

The husbands’ case

The husband filed a Response to the wife’s Application in a Case on 14 November 2016. In that Response he in summary sought orders that provided:
a)that the wife do all necessary things to give instructions to the solicitors instructed on behalf of the parties to have the carriage of the sale of the rural properties to prepare two separate contracts for sale of “C Town” owned jointly by the parties and the superannuation land owned by E Pty Ltd as trustee for the Samuels Superannuation Fund being the land in Folio Identifier … and give instructions to those solicitors as requested in the solicitor’s letter dated 10 November 2016,
b)that the wife cooperate and do all things necessary to cause the registration of easements for the creation of legal access to the superannuation land,
c)that the reserve price for the superannuation land shall be $1.12 million,
d)that the reserve price for “C Town” shall be $4.48 million,
e)the properties “C Town” and the superannuation land shall be sold at the same auction and be sold separately,
f)that the husband shall give notice of his intention to exercise his option to purchase a superannuation land by no later than 29 November 2016 including evidence of unconditional finance approval for such purchase, and
g)that in the event of the wife failing to comply, the husband be appointed trustee for sale of the rural properties.
On 16 December 2016 following judgment being reserved the husband filed an Application in a Case seeking leave to reopen the interim hearing. That application was resolved and the parties agreed that further evidence would be received.
On 1 February 2017 the husband filed an Amended Application in a Case seeking additional orders as to the sale of livestock owned by the V Trust and the distribution of the proceeds of sale. That application was resolved by urgent orders made on 14 February 2017 as referred to above.
The husband relied upon his affidavits filed 14 November 2016 and his subsequent affidavits filed 16 December 2016 and 1 February 2017.
The husband gives evidence of the various machinations between the parties in an endeavour to make arrangements for the rural properties to be sold in accordance with the previous consent orders.
Notwithstanding the previous consent orders in September 2016 the husband sought to set the reserve price for the superannuation land at $1.5 million. The wife responded to the effect that she required the properties to be sold as one parcel notwithstanding the husband’s “option to purchase” the superannuation land before the auction.

The agreed solicitors acting on the proposed sales, I Lawyers, wrote to the husband’s solicitors on 10 November 2016 seeking instructions as to fencing, access to the superannuation land, water rights, improvements on the land and confirmation that the purchase price for the husband’s option was $1.12 million.
Previously the husband had instructed his solicitors to write to I Lawyers seeking advice as to the preparation of separate contracts and special conditions.
Relevantly the husband asserts that he anticipated having unconditional approval for finance to purchase the superannuation land by 29 November 2016.
He has adduced no evidence that he has such unconditional approval.

The sale of stock

Interim orders made on 27 June 2016 provide for the ongoing operation of the business conducted on the parties’ rural properties through the V Trust.
The husband asserts that in anticipation of the sale of the properties he has arranged for the sale of all stock on those properties comprising about 880 head of livestock presently occupying both properties.
The livestock are the only liquid asset of the V Trust. The husband has formed the view that now is an opportune time to sell the stock.
The husband entered into a contract to sell the livestock to a Queensland company and a copy of the contract of sale dated November 2016 was provided to the wife. The wife refused to provide her consent to the removal or sale of the livestock absent an explanation from the husband as to various transactions undertaken by him on the Westpac trading account for the V Trust. The wife confirmed her refusal in relation to the sale by email dated 4 January 2017.
To facilitate her objection to the sale the wife has had locked the access gate to the property and denied access to the stock transport company engaged to remove the stock. Cancellation charges in relation to the stock transport company are in the sum of $6,103.80.
Somewhat belatedly having regard to the previous consent orders the husband agreed by letter from his solicitor dated 17 January 2017 to authorise Westpac to facilitate operation of the account by joint signatures.
The husband expresses concern that the value of the stock for sale may be reduced by current climatic conditions and that a sale should be facilitated as soon as practicable.
The husband gives some evidence of various transactions on the Westpac account although there is precious little evidence save for some exhibited receipts to demonstrate whether asserted outstanding liabilities are those covered by the previous interim orders or not. No doubt when funds are to hand and appropriate evidence is available a rational determination can be made as to whether various amounts alleged to be due and payable are indeed amounts payable pursuant to the interim orders.
It is appropriate that orders be made facilitating an orderly disposition of the stock with appropriate constraints on the disposition of those sale funds. Those orders were made on 14 February 2017.

Discussion

It is clear that the parties remain at loggerheads in relation to the implementation of orders made on 12 February 2016 and 27 June 2016.
On reflection the linking of the husband’s “option” to acquire the superannuation land concurrently with the sale of the larger jointly owned rural property of the parties has created significant difficulties in facilitating an orderly sale.
The acquisition of the superannuation land by the husband does not require a contract for sale. It is a transfer from one entity of the parties that is their superannuation fund to the husband. Such a transfer can be effected by a memorandum of transfer being signed by the corporate trustee of the fund transferring the property upon receipt of funds from the husband to him.
Perhaps there should be some misgivings as to the member of a self-managed super fund acquiring an asset of the fund but the inference must be that the parties have obtained appropriate advice in that regard.
It is clear from orders made 12 February 2016 that it was at that time the contemplation of the parties that their combined rural holdings would be sold as one subject to the husband’s option as provided for in orders 14 and 15 made that day.
If the husband wishes to exercise his option it is clear that it must be done so independently of and distinct from the proposed auction sale of the jointly owned rural land holdings. Not to do so would create significant difficulties in marketing a property that comprised two holdings but that an auction might see a significant portion of the property being the superannuation land removed from sale.
Should the husband exercise his option to purchase the superannuation land in a timely fashion then it is appropriate that any contract for sale of the parties’ jointly owned primary rural landholding “C Town” be the subject of appropriate conditions as to “matters of access, water rights and fencing” as advised by the jointly appointed solicitors having carriage as to the sale (See Exh “A” 14 November 2016).
Those conditions as appropriate in the circumstances of these rural holdings and in the interest of rural comity between adjoining landowners will be a matter for the Trustee for Sale to give appropriate instructions to the solicitors appointed to act on the sale. Those conditions will ensure that the husband, should he acquire the superannuation land, does not do so in circumstances where he has no access to the property or water and the question of fencing adjacent boundaries with a third party purchaser of “C Town” is a matter of conjecture.
It is clear from the Valuation comprising Annexure “B” to the wife’s Affidavit filed 24 January 2017 that the superannuation land if sold separately and by reason of the factors identified in that valuation would have a value of only $750,000.00. The husband has agreed to pay $1.12 million.
It is not appropriate that the above issues remain unaddressed where the husband is clearly paying a premium to acquire the superannuation land at the agreed price. Such a circumstance would leave him at the mercy of a third party purchaser of “C Town” and the prospect of having no access to the property and no appropriate water rights thus rendering the property useless in his hands.
Although not expressly stated, the present applications for relief enliven consideration of the Court’s power under s 114 of the Family Law Act 1975 (Cth) to make such order or grant such injunction as it considers proper in relation to the property of the parties.
A useful overview of injunctive principles was provided by Cronin J in Martin & Martin and Ors [2013] FamCA 222 (9 April 2013).
In substance the parties are in agreement as to their basic rights and entitlements provided for in the previous interim orders made by consent as to the sale of their rural properties.
Regrettably, the terms of the interim orders have led to conflict, confusion and delay in circumstances where they have significant debt accumulating on a daily basis to their primary creditor the National Australia Bank.
It is clearly appropriate in the circumstances to amend the purposive orders previously made so as to facilitate some clarity without detracting from the underlying agreed arrangement between the parties.
Notwithstanding that the wife seeks a declaration that the husband’s option has ceased to have effect it is readily apparent that there has in fact been no auction such as would bring his right to exercise that option to an end. Yet the conflation that has led to the present impasse must be resolved.
It is thus appropriate that the previous purposive injunctive orders be rectified.
Doing the best in the current circumstances and being conscious of the underlying interest of the secured creditor it is important that the present impasse be resolved promptly.
To that effect it appears to be the husband’s position that he has finance available to exercise his option to acquire the superannuation land. In that event he should be required to exercise his option at an early date not approximate to the date for sale by auction of the parties’ joint rural holding and at a time when if he fails to exercise his option the combined rural land holdings can be offered for sale by auction as one.
At the conclusion of submissions the Court was informed by the husband’s counsel that following a joint approach by the solicitors for each party a suitably qualified solicitor was prepared to accept an appointment as Trustee for Sale of the subject rural properties (or the jointly owned rural property in the event that the husband exercises his option in relation to the superannuation land): Exh “A”.
By reason of the ongoing conflict between the parties it is appropriate that neither have the carriage of the necessary sale or sales and that an independent trustee be appointed. Accordingly, that solicitor who has provided his consent and details of his qualifications will be appointed as Trustee for the purposes of implementing the orders made 12 February 2016 and 12 June 2016 as they are to be amended by orders in the context of the present applications.
Orders will accordingly be made to give effect to the above reasons.

I certify that the preceding seventy six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 8 March 2017.

Associate:

Date: 7 March 2017