Pourdis and Pourdis and Ors (No 2)

[2013] FamCA 972

FAMILY COURT OF AUSTRALIA

POURDIS & POURDIS AND ORS (NO 2) [2013] FamCA 972

FAMILY LAW – INJUNCTIONS – Preservation of Property – Where the wife seeks to restrain the sale of the former matrimonial home – Orders made dismissing the wife’s application.

Family Law Act 1975 (Cth) s90AF, 114, 117

Stanford v Stanford (2012) FLC 93-518

APPLICANT: Ms Pourdis

RESPONDENT: Mr Pourdis

INTERVENERS NO 1 & 2: Bank Of Queensland
And
Receivers And Managers

INTERVENERS NO 3 & 4:

INTERVENER NO 5

P Pty Ltd (Receivers And Managers Appointed) (In Liquidation)

And
P Pty Ltd (Receivers And Managers Appointed) (In Liquidation)

Pourdis Pty Ltd

FILE NUMBER: DNC 552 of 2010

DATE DELIVERED: 5 December 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Justice Dawe

HEARING DATE: 5 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farmer

SOLICITOR FOR THE APPLICANT: Withnalls Lawers

COUNSEL FOR THE RESPONDENT: Ms Bowen

SOLICITOR FOR THE RESPONDENT: Bowen Lawyers

COUNSEL FOR THE INTERVENERS NO 1 AND 2: Mr O’Grady

SOLICITOR FOR THE INTERVENERS NO 1

AND 2  Minter Ellison Lawyers

COUNSEL FOR THE INTERVENERS NO 3 AND 4: N/A

SOLICITOR FOR THE INTERVENERS NO 3

AND 4  Norman Waterhouse Lawyers

COUNSEL FOR THE INTERVENER NO 5 Ms Bowen

SOLICITOR FOR THE INTERVENER NO 5           Bowen Lawyers

Orders

Upon Noting if the only issue that remains due to be litigated would be the costs of the 1^st and 2^nd Interveners then on the 4 March 2014, the Court expects the 1^st and 2^nd Interveners would be able to provide the Court with an estimate of their costs and be released from further attendance SAVE AND EXCEPT for final submissions as to how those costs might be paid, and if they should be paid.

IT IS ORDERED THAT

1. The wife’s Application in a Case filed on 3 December 2013 is dismissed.

1. The question of costs is reserved to be determined upon the resolution of the final property proceedings.

Liberty to apply in respect of costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pourdis & Pourdis and Ors (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 552 of 2010

Mr Pourdis

Applicant

And

Ms Pourdis

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The application before the Court this afternoon is one which was listed urgently at the request of the wife in these proceedings, being the application in a case filed on 3 December 2013 in which the wife sought orders that the matter be heard urgently, and that:

   (i)Until further order, and upon the wife providing the usual undertaking as to damages, intervenor 2, being [Mr E] and [Ms F] of [X Consulting], as the receivers and managers appointed, be restrained by injunction from selling by auction at midday on 7 December 2013, or by any other method except by transfer to the wife, the real property situated at [F Street, Suburb B]; and

   (ii)That costs other than incidental to the application be reserved.

2. That application was listed urgently before me.  I have received the response to the application in a case filed by the receivers and the Bank of Queensland (who are correctly described as the first and second interveners in these proceedings) in which the orders sought by the wife are opposed.  The first and second interveners seek that the application be dismissed, and that the wife pay the first and second interveners’ costs of the application in a case.

3. The material the Court has received in support of the application is the affidavits of the wife and her father.  The material in response to the application is the affidavit of Mr O’Grady, filed on 5 December 2013. 

4. I have heard detailed submissions on behalf of the wife and the first and second interveners. 

5. The application in a case and the opposition to it need to be seen in the very detailed and complex background to the property settlement proceedings between the husband and wife, which have been outstanding in this Court for years.  The trial which has been ongoing for a considerable period of time remains part heard due to factors involving the receiver and managers being appointed, and the action taken which has altered the financial circumstances which were previously put to the Court.  These factors remain unresolved due to issues relating to the intervention of the interveners, and the capacity of the Court to determine, as required by the decision of Stanford v Stanford (2012) FLC 93-518, what are the assets and liabilities of the parties that are available for consideration, including the liabilities and financial resources of the parties. In the complex background of the matter, I do not recite all of the background difficulties, but they would be clear from the large amount of material which is on file and the evidence which I have already received in an attempt to determine the final property settlement proceedings.

6. In this interim matter it is not possible for the Court to make findings in relation to the disputed facts. 

7. It is necessary to determine whether the Court has the jurisdiction to make the order sought by the wife, which would restrain the first and second interveners from taking action which would otherwise be permissible, pursuant to their roles as liquidators, taking into account the security already existing over the property. 

8. The property was the former matrimonial home of the parties.  It has been clear from the affidavit material and the evidence already given to the Court that the wife seeks, and has always been seeking, that that property be transferred to her.  The F Street, Suburb B property is the property referred to as the former matrimonial home, and is the property to which the wife refers, seeking the orders in the application in a case. 

9. It is submitted to me that I do not have jurisdiction to make the injunction sought, however, counsel have quite properly then moved on to consider that if I do have jurisdiction, I should consider whether the provisions of section 90AF and the provisions of Part VIIIAA of the Family Law Act1975 (Cth) (“the Act”) apply to this injunction sought.

10. I consider that the Court clearly has jurisdiction to make these orders, as they fall within the type of orders contemplated by the provisions of Part VIIIAA of the Act. Those provisions clearly indicate that orders can be made which affect the rights, and can reduce the rights and assets of parties who are not parties to the marriage (described as third parties).

11. I must consider in exercising that jurisdiction the grounds upon which I am directed to exercise that jurisdiction, as set out in Division 2, and in this case, Division 3, of Part VIIIAA of the Act. In particular, section 90AF provides that the Court may make an order or injunction under section 114, which is binding upon a third party. That power must be exercised taking into account section 90AF, subsection (3), which states that the Court may only make an order or grant an injunction under subsection (1) or (2) if the conditions set out in subsections (a) to (f) are made out. It is therefore necessary to consider whether those factors are met.

12. They are all to be considered.  In particular subsection (d) requires that the Court is satisfied that in all the circumstances, is it proper to make the order or grant the injunction, and that (in subsection (e)) it is just or convenient to grant the injunction.  The Court has to be satisfied that it is just or convenient.  There is a huge difference between what might be just and what might otherwise be convenient.  The Court is also required to be satisfied that the order or injunction takes into account subparagraph (3), which is, if the order or injunction concerns a debt of a party to the marriage, the capacity of a party to the marriage to repay the debt after the order is made or the injunction is granted. 

13. It is significant that it is necessary for the Court to take into account those factors.  One of the most significant factors to consider is the question of procedural fairness.  It appears from the affidavit of the wife that there is no clear indication as to when she became aware that the property was to be auctioned this coming Saturday, but it implies in her affidavit that this injunction was brought as quickly as possible, in all of the circumstances.  Another significant factor for me to determine is that it is proper in all of the circumstances to make the order or grant the injunction.  The wife as is suggested in her application that she provide suitable indemnity for any loss or damage that may be suffered if the order is made.  The difficulty in that regard is the question of what funds would be available to the wife to meet the unknown amount of debt that may be payable or claimed in relation to the receiver’s claims, as referred to in the affidavit of Mr McGrath.  When considering whether to make an order that interferes with what is clearly the third party’s rights to sell the property to recover funds which have been outstanding for a considerable period of time, I have to take into account the complexity of the matters to which I have referred.

14. Setting aside for the moment the issue of procedural fairness in relation to the urgent hearing of this matter, I am still concerned that an injunction will interfere with the normal rights of the third parties to take action to recover their debt in the normal way (being the debt that is secured by the mortgage).

15. Overall, I consider that, notwithstanding the wife’s case has always been that she wishes to make a claim to have the former matrimonial home transferred to her, that desire by the wife, and the clear notice upon which the interveners were that that was a claim, does not however set aside what is the clear right and obligation of the first and second interveners to recover their moneys appropriately due, pursuant to the security which has been provided. 

16. The question of the wife providing necessary security for any damages is a matter which remains not clearly resolved by the affidavit material provided. 

17. In relation to the consent order which was made, I accept the submissions on behalf of the first and second interveners, that the consent order did not restrict the first and second interveners’ rights to exercise their normal right to carry out the recovery of the sum due to them, but gave a possibility for the property to be transferred from the name of the husband to the name of the wife if agreement could be reached with all of the other relevant parties.  The determination, therefore must be whether, under all of the circumstances, the injunction should be made in the terms sought by the wife.

18. The provisions of section 90AF relate to the Court’s power to make an injunction under section 114, which is the power to make an injunction which the Court considers proper. In this matter, therefore, taking into account the complex factors, and taking into account the normal rights of the first and second interveners, and their obligations to carry out their rights in accordance with the law, I am not satisfied that it is proper for the injunction sought by the wife to be made, which would prevent the sale by auction of the property. I therefore dismiss the wife’s application.

19. So far as the question of costs is concerned one of the significant factors in relation to section 117 is clearly that the wife has been wholly unsuccessful in the application.  However, there are other significant factors under section 117, which I am not capable of determining at this stage.  These include the financial circumstances of the relevant parties, namely, the wife and the first and second interveners.  I therefore decline to make the order for costs, but reserve the question of costs to be determined upon the resolution of the final property settlement proceedings, which I understand remain listed before me to be the subject of directions on 4 March 2014. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 5 December 2013.

Associate: 

Date:  11 December 2013