Philips & Samuels

This matter concerned an application to vary previous orders made by Foster J in the Family Court of Australia. The dispute involved the division of property between a husband and wife, specifically concerning a superannuation fund and jointly owned rural property. The core of the dispute revolved around the husband's obligation to acquire certain land for his superannuation fund and the subsequent sale of other jointly owned property.

The court was required to determine the terms and conditions under which the husband would acquire land for his superannuation fund, and the mechanism for the sale of the parties' jointly owned rural property, "C Town". Crucially, the court had to consider how the sale of "C Town" should proceed, particularly in the event that the husband failed to acquire the superannuation land by a specified date, and the terms of sale for "C Town" if the husband did acquire the superannuation land.

Foster J varied the existing orders to provide that the husband was to pay a sum of $1,210,000.00 to E Pty Ltd as Trustee of the Samuels Superannuation Fund by 31 March 2017. In consideration of this payment, the husband and wife were to transfer the land comprised in a specific folio identifier to the husband. The funds were to be held in an interest-bearing account requiring joint signatures. If the husband failed to acquire this property by the deadline, it was to be offered for sale by public auction, combined with the jointly owned rural property "C Town". Mr CC, Solicitor, was appointed Trustee for Sale of "C Town" and, in the event of the husband's default in acquiring the superannuation land, also of that land. The Trustee for Sale was directed to sell the properties as a combined entity for the best price reasonably obtainable and to ensure that the contract for the sale of "C Town" included appropriate terms regarding access, water rights, and fencing, so as not to adversely affect the value of "C Town" if the husband acquired the superannuation land.