Prosser and Prosser & Anor

[2015] FamCA 448

FAMILY COURT OF AUSTRALIA

PROSSER & PROSSER AND ANOR [2015] FamCA 448

FAMILY LAW – PROPERTY – Interim – Where the dispute involves two real properties – where the bank is preparing to take immediate enforcement action to recover outstanding debt – where the applicant wife lodged a caveat on the title of both properties – where one of the caveats lapsed – where the respondents seek an injunction for the wife to remove the other caveat to enable the sale of the property to be completed and the bank liability to be discharged – where the wife opposes an order for the removal of the caveat and seeks orders restraining the husband from taking steps to sell, deal with, transfer or further encumber the property – injunction requiring the wife to remove the caveat granted.  

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the wife makes an application for spousal maintenance – where the wife is now employed – where the Court is not satisfied that the husband has the capacity to contribute spousal maintenance at this point in time – where it is found that the wife the wife has sufficient money to support herself at this point in time – application dismissed.

Family Law Act 1975(Cth)
Judiciary Act 1903 (Cth)
Land Title Act 1994 (Qld)

Aurrichio & Aurrichio (2014) FamCA 240
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Baumgartner v Baumgartner (1987) 164 CLR 137

APPLICANT: Ms Prosser

FIRST RESPONDENT: Mr A Prosser

SECOND RESPONDENT: Mr B Prosser

FILE NUMBER: BRC 1320 of 2015

DATE DELIVERED: 29 May 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 29 May 2015

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE FIRST RESPONDENT: Mr Selfridge of Counsel

SOLICITOR FOR THE FIRST RESPONDENT: Parker & Kissane

THE SECOND RESPONDENT: In Person

Orders

1. The wife shall, and an injunction is hereby granted requiring her to, forthwith take all steps that are necessary, including signing and filing all necessary documents, to cause a caveat registered over the real property situated at C Street, D Town in the State of New South Wales, to be removed from the title of that property as soon as possible.

2. The husband shall ensure that all of the available net proceeds of the sale of his interest in the property at C Street, D Town in the State of New South Wales, to his brother, after the immediate costs of sale are deducted, shall be directed to discharging the following liabilities:

   (a)Overdraft account of Mr A Prosser Pty Ltd with the Commonwealth Bank of Australia – Account no. …;

   (b)Better Business Loan provided by the Commonwealth Bank of Australia to Mr A Prosser Pty Ltd – Account no. …; and

   (c)Home Loan provided by the Commonwealth Bank of Australia to Mr A Prosser – Account no. …;

   and he shall provide written evidence to the wife of the discharge of all such liabilities as soon as that has been achieved.

3. All other interim applications remaining outstanding, including the wife’s interim application for spousal maintenance included in her Initiating Application filed 16 February 2015, are dismissed.

4. All parties’ costs of and incidental to the interim application are reserved to the Trial Judge.

5. The matter is adjourned to the Registrar for mention on a date and at a time to be fixed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prosser & Prosser and Anor 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 BRISBANE

FILE NUMBER: BRC 1320 of 2015

Ms Prosser

Applicant

And

Mr A Prosser

First Respondent

And

Mr B Prosser

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Requiring determination today are competing applications for interim orders in contested property adjustment proceedings recently transferred to this Court from the Federal Circuit Court and also, pursuant to cross-vesting legislation, from the Supreme Court of New South Wales. Additionally, there is an application brought by the wife for interim spousal maintenance to be paid to her by the husband that is for determination.

2. The immediate property adjustment disputes involve two real properties situated in the E Town area where the husband still lives in my understanding. At the outset of the proceedings, I understood that in the husband’s Response to the wife’s Application, which I will deal with shortly, the husband was seeking orders from the Court that facilitated the removal of caveats lodged by the wife on the title of both properties in New South Wales so that sales of the two properties could be completed and registered and liabilities to a bank discharged in circumstances where the husband asserts, and has put evidence before the Court that seems to confirm his assertion, that the bank is ready to take immediate enforcement action against him in order to recover the outstanding liabilities. The wife in her original Application sought orders to maintain the existence of the registration of the caveats over the two properties. A miscellany of other orders, including as to disclosure and matters pertaining to preparation for trial were also sought in the original Application and Response.

3. The adult son of the husband also joined the proceedings when it was, as I understand it, before the Federal Circuit Court before it was transferred to this Court. He has an interest in the proceedings as the purchaser of the husband’s interest in one of the properties, an industrial shed that the wife caveated.

4. The matter was first listed before me in the judicial duty list on Monday, 11 May 2015 but was adjourned at the request of the parties to today to permit an exchange of information as between the parties.

5. On the last occasion that the matter was before the Court, 11 May 2015, the husband was represented by solicitor and counsel. The second respondent was here and appeared in Court as he is today, unrepresented. The wife actually appeared on that occasion represented by a solicitor who I understand is formally on the record as acting for the wife in these proceedings.

6. The matter was adjourned, as I have said, at the request of the parties, to today for hearing. When the matter came before me at 10.00 am this morning there was no appearance by the wife. Mr Selfridge of Counsel appears again for the husband, Mr B Prosser the second respondent appeared as I have just said, again unrepresented.

7. Mr Selfridge courteously informed the Court that he had received a telephone call from a young man purporting to be the son of the wife, informing him that they were still on their way to court, that is, he and his mother. I stood the matter down rather concerned about the lack of appearance by the wife and ultimately after having been informed that the wife and her son were in the building but doing other things, I determined that I must call the matter on and get these proceedings started.

8. The wife appeared unrepresented by her solicitor. She told the Court that the afternoon before she had, in proper terms described by me and not the words used by her, withdrawn her instructions from her solicitor telling him that she would appear from this point unrepresented by him. There is, as yet, no Notice of Ceasing to Act or notice of change of address filed in the Court.

9. It is long established practice, at least in my understanding, that when a solicitor who is on the record as acting for a client or a litigant, a party in proceedings before this Court has his/her instructions withdrawn but has not yet been able to cause a notice of Ceasing to Act to be filed or a document of change of address to be filed, that such solicitor usually appears out of courtesy to the Court seeking leave from the Court to withdraw at that stage. No such courtesy was offered to the Court by the solicitor who is currently on the record for the wife. I have no knowledge as to the reason for that.

10. The wife though appeared in the company of a young man who she told me was one of her sons. I permitted him to sit with her and act as her McKenzie friend. Further, the wife then informed the Court that she requires an interpreter and she was expecting one to be here today. I asked her if any arrangements had been made with the Court for the provision of a Russian interpreter to be provided for her today and she effectively answered me by saying “not to her knowledge”. That is the only explanation that I can give her and put on the record for there not being a Russian interpreter here for the wife given that no such arrangement was made for her with the Court by her solicitor or by her prior to her attending at Court this morning. Satisfied that her young son, who is Australian educated and has been here for many years as I understand the evidence, could interpret for her as well as be her support and McKenzie friend, I proceeded.

Some Background

1. The husband and wife met, as I understand the evidence, via the internet in or around 1992. The wife who is, as I have already indicated, a Russian, was living in Russia at that time. The husband, an Australian man, was living in northern New South Wales. Each of them had two children of former relationships when they first met. They began living together in April 1996 and they married later that year. Sadly, they separated and their relationship ended after 18 years in or around late October last year, 2014.

2. The husband is 67 years of age right now. The wife is 54 years of age.

3. The husband has, as I understand the evidence, operated a rock crushing, gravel producing business for many years. He is the sole director and shareholder of a company, Mr A Prosser Pty Ltd, that was established in 1998 through which the business has traded at least since that time. The business owns many items of plant and equipment, some of which are very valuable, but, in respect of which there is, as often is the case, substantial financing debt in existence. Values of all that plant and equipment are not yet agreed or established, but orders were made earlier this month on 11 May, by consent, providing for the process by which those items of plant and equipment are to actually be valued for the purposes of the substantive property adjustment proceedings.

4. The business has been renting the industrial premises at F Street in E Town for many years. As I understand the evidence, that property was originally purchased and owned by the husband and his adult son, Mr B, who is the second respondent, in equal shares. As I understand the evidence it was purchased from the husband’s mother. There was liability attached to it, secured by mortgage, in respect of borrowings for its purchase. That liability as I understand the evidence has been extended, perhaps on more than one occasion but at least once, over time for business purposes.

5. The husband and the wife lived for all of the years of their cohabitation in a residence at the property at C Street, D Town which is near E Town in New South Wales. That property is registered in the husband’s sole name. There is no dispute between the husband and the wife that it was acquired by the husband before cohabitation with the wife even commenced. There is no dispute that he had constructed a house on it before they commenced cohabitation. It was in fact in the house after it was constructed that cohabitation commenced. There is also no dispute that it too has debts secured by mortgage registered on the title. There is no dispute that it had debt secured by the mortgage at the time the husband and the wife commenced cohabitation.

6. During the years of the husband and wife’s cohabitation in the D Town property, the wife’s two Russian sons came out to Australia and lived with the wife and the husband, as I understand the evidence, until they finished school and left home. The husband’s two sons also lived with them for some time in that household. One of the husband’s two sons was tragically killed in an accident just after he reached adulthood.

7. The husband’s surviving adult son, the second respondent in these proceedings, has worked in the rock crushing business with his father for many of the years since the parties were in cohabitation. The wife was also employed in the business for many of those years, undertaking administrative and bookkeeping work.

8. Also relevant as some background material is the fact that at some time during the cohabitation, the wife acquired a unit property in Suburb G in Brisbane. She borrowed money to buy that property in her own name. It had a liability associated with its purchase attached to it secured by a mortgage that was registered on the title as well. That property, as I understand the evidence, was some time in 2014, transferred to one of the wife’s adult sons, not the one who is in Court with the wife today, but his brother. The husband gives evidence in his affidavit that he is concerned and not fully aware of all the circumstances surrounding the transfer of the wife’s sole registered proprietorship in that property to her son. At separation, last year, the wife left the former matrimonial home in D Town that she shared with the husband and moved to Brisbane and took up residence with her sons in the Brisbane unit.

The facts about the two properties that are the subject of the current dispute

1. There does not appear to be any dispute between the parties that the financial circumstances of the business were indeed poor through 2014 and even earlier than that and continued to be poor up until or around the time of separation. The wife in fact deposes to the fact in her affidavit evidence that the bank to whom money was owed by the business and the parties had actually called in the loans. The bank has sought repayment of a home loan, a business overdraft and a business loan all secured by mortgages over the industrial property, the D Town property and also secured over the real property owned by the husband’s elderly mother which is her own home, a residential property also situated as I understand the evidence at D Town near E Town in New South Wales.

2. The wife’s evidence that she filed in affidavit form in support of her original application deposes to discussions with the husband around the time of their separation about their poor financial circumstances and apparent assertion by the husband and seeming acquiescence or concession by the wife of the reality of the situation that the industrial shed would have to be sold in order to secure funds to pay out some of the liability that was owed to the bank. There was some apparent discussion between the parties about how that might be able to be achieved.

3. The wife asserts that she was in discussion with the husband about one of her own sons or both of her sons buying the shed. She also asserts that there was talk about the husband’s brother buying the shed. As it transpires, the husband entered into, just at the time of separation or just after separation, a contract to sell his half interest in that shed to his son, the second respondent. The sale price of the husband’s half interest to the son was fixed at $200,000.

4. The wife apparently, once learning of this, lodged a caveat in the New South Wales Land Titles Office - I think it is called something similar thereto - to secure what she was asserting was a caveatable interest in the property. The nature of the caveatable interest asserted by her in that property is not something that she deposes to in any way in any of the evidence that is before the Court today. I do not have a copy of the caveat before me. I do not have any depositions in affidavit form in affidavit prepared by her solicitor who was acting for her at the time, in support of her application in which she makes any attempt to assert what her caveatable interest in that particular property actually was or is.

5. Around the same time the wife caveated the D Town property that was the former matrimonial home. It seems that notices requiring her to commence proceedings to assert in a court of competent jurisdiction the caveatable interests that she claimed she had in those properties were served upon her such as to give rise to a period of time within which her action was required to be commenced in default of which the caveats would lapse. At some point thereafter, this matter came to the wife’s attention and she immediately, as I understand the evidence, went to the New South Wales Supreme Court and commenced proceedings in order to try and save the registration of her caveats.

6. I am not exactly sure if what I am about to recite is correct factually, but this is how I currently understand things. When the proceedings were before a judge in the Supreme Court in New South Wales, the caveat that the wife had lodged over the industrial shed had actually lapsed and that had happened in January sometime this year and that the transfer of the husband’s half interest in the property to the second respondent had actually been effected and registered.

7. As I understand it, the debt that was at that time secured over that property by way of a mortgage presumably granted to the bank by the husband and the son who is the second respondent and is the other title holder, was discharged and remaining funds paid to the husband. I do not know what has happened to those save for, I have some memory of reading some evidence where the husband sets out how he has disposed of it in meeting business expenses. I might not be correct in that though. The son apparently borrowed some $200,000 to purchase the father’s half interest and that liability has been secured by mortgage over the title.

8. Raising these factual matters with Mr Selfridge of counsel who appears for the husband and with Mr B Prosser, the second respondent, it was quickly conceded by both of them that no further order directed against the wife ordering her to remove or take steps required to remove a caveat in respect of the F Street industrial property was necessary. The wife however, in her submissions, still urged the Court to make an order that somehow permits her to put a caveat back over that property. I will return to that shortly.

9. The caveat that was registered by the wife over the residential property in C Street, D Town, had not lapsed when it was before the Supreme Court. The New South Wales Supreme Court judge, although I have not seen his reasons, clearly considering that the application in respect of that caveat over that property was a matter intricately entwined with the property adjustment dispute existing between the parties that I understand had already been commenced at that stage in the Federal Circuit Court, determined quite appropriately to transfer the proceedings about the caveats from the New South Wales Supreme Court to this Court.  Shortly thereafter, as I have already said the matter was before a Federal Circuit Court judge based in this registry who also transferred the property adjustment proceedings from that Court to this Court.

10. The husband comes on his application seeking an order from this Court that causes the wife to take steps to cause the caveat lodged over the D Town property to be removed. The wife of course opposes that and seeks orders that basically facilitate the retention of the registration of the caveat over that property and restrain the husband from taking any steps to sell that property or to deal with it, transfer it or encumber it any further. The husband’s case is that the caveat should be removed because it is a matter of preservation of property for the purposes of the property adjustment proceedings. He makes that case on one principal basis. He says that the bank, who has already made a long time ago, demand for accelerated payment of all the monies owing to them in respect of a number of liabilities secured over the property, is about to take enforcement action against him in respect of this property in order to recover its liabilities.

1. He puts evidence before the Court about that, most relevantly, in an affidavit filed on 22 May 2015. He attaches a letter dated 15 May 2015 on Commonwealth Bank letterhead from a person named Ms H who is the manager of the group which is listed to be part of a group called Risk Management in the Commonwealth Bank located in Parramatta in New South Wales.

2. The letter refers to facilities for Mr A Prosser Pty Ltd and points out that there is an overdraft account that currently has a balance as at that date of $61,045 in debit, which is $1,045 over the limit. It says “arrears” but I translate that to mean “over the limit”. So there is an overdraft in place with a limit of $60,000 and that is secured by mortgage over the property. It was over the limit on 15 May 2015. It also refers to a better business loan provided to Mr A Prosser Pty Ltd that had a debit balance of $186,030.27 at that day, which was $11,781 over the limit.

3. It also refers to facilities provided to the husband himself in person, namely a home loan that was clearly provided in respect of the D Town property which had a debit balance at the time of the letter of $36,215, which was also in arrears $2,240. It also refers to a Mastercard in the name of the husband with a limit of $25,000 with a debit balance of $23,585. It was not over the limit but it was not very far from it.

4. The entirety of the debt owed by Mr A Prosser Pty Ltd and by Mr A Prosser himself, secured by mortgage over the D Town property and, as I have said earlier, also by third party mortgage given by his elderly mother, who is in her mid-eighties, over her property at D Town, is $283,290, which is in total about $14,000 in arrears at that time.

5. The bank said quite particularly, and I will read it out into my judgment:

   We refer to our letter of 29 April 2015 in which the Bank provided forbearance on recovery action until 11 May 2015 [that was the last day the matter was before the Court]. In the absence of a resolution on the sale of the property at [C Street, D Town] NSW and failure to provide evidence of work contract, the Bank will proceed with its recovery action.

   The management of your relationship has been passed to the Bank’s Asset Realisation team. Provided that the Bank’s Letters of Demand dated 2 April 2015 remain unsatisfied, a member of the Asset Realisation team will contact you in due course to advise you of the Bank’s process in recovering its Debt via the Bank’s securities.

   We confirm that nothing in this letter, nor any reply or response to it, is to be constituted as any waiver or variation of the Bank’s rights.

6. The husband says that his financial position and the financial position of the business are fairly desperate. The wife in her affidavit evidence, clearly, as I have already observed, seems to confirm that or agree with it. As least she makes no serious dispute about it.

7. The husband says that he has in place a contract to sell the D Town property to his brother for what he says to the Court is a fair market price, namely $285,000. He has put evidence before the Court that the property was on the market for quite a while, being marketed through a real estate agency in the local area. The wife apparently agrees with that. She said something from the bar table this morning that seemed to suggest she thought it was listed for too high a price. The husband says that basically it was listed at too high a price and that is the reason why it did not sell.

8. He has put evidence before the Court of an appraisal of the property which has it valued at $285,000 that he says he has agreed to sell it to his brother for. His brother has sworn an affidavit that has been filed and put before the Court and relied upon by the husband, in which he says that he agreed to buy the property at $285,000 to enable the liabilities that I have referred to, to be discharged and to allow the third party mortgage security that the husband and his brother’s elderly mother has provided to the bank to be released so that she is not at risk of losing her property.

9. The husband says the wife needs to be ordered to take steps to remove the caveat so that this sale to his brother at a fair market price can proceed so that he has enough money to pay out the $283,000 worth of debt. It seems that he would just have enough if there is no agent’s commission involved.

10. The wife in reply advances a case that the husband has told her over the years that if she left him she would get nothing in the property division. She said that these two properties, the F Street property and the C Street property, are the only pieces of real property that the husband owns and their retention is necessary in order to secure the preservation of some form of property for her just and equitable property adjustment entitlements to be determined by the Court. She asserts that the husband has told her he will hide all of the valuable plant and equipment so that it cannot be properly valued and that therefore the real property is what is necessary to maintain.

11. The question of whether this Court has the power to order the removal of a caveat as is sought by the husband has been dealt with by me in previous proceedings, namely Aurrichio & Auricchio (2014) FamCA 240 (“Aurrichio”). In that judgment I determined, it having been agreed between Mr North of Senior Counsel and Mr Looney of Queen’s Counsel, who were opposing counsel, the Court actually has the power to order the removal of a caveat exercising federal jurisdiction and picking up and applying state law where appropriate by s 79 of the Judiciary Act 1903 (Cth). In that case, the caveat was a Queensland caveat and the federal jurisdiction picked up s 127 of the Land Title Act 1994 (Qld) which entitled the Court to make an order that the caveat be removed.

12. The decision in that case was based on reliance on a High Court decision, namely Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 (“Edensor Nominees”) per Chief Justice Gleeson, Gaudron & Gummow JJ at [58] and [65]. However, in that particular case their Honours specifically said they were not dealing with a situation where the Federal Court was exercising power from a state law where the Federal Court was actually sitting outside that state.

13. In that case of Edensor Nominees the Federal Court in Victoria was exercising power picked up by its federal jurisdiction in respect of a Victorian state law. This is exactly what I did in the case of Aurrichio. The High Court said it was a matter for another day to determine whether a federal court could pick up state jurisdiction from a state outside the one it was sitting in. I am not at this stage in a position, it not having been argued before me, to give a greater consideration to the matter, particularly also given that I am delivering this judgment ex temporaneously.

14. Suffice to say that Mr Selfridge acknowledged the problem and submitted that it was the injunctive power available to the Family Court under s 114 of the Family Law Act 1975 (Cth) that he was relying upon as giving the Court the power to make the injunction that his client was seeking, namely an injunction ordering the wife to take all steps necessary to cause the caveat to be removed. I am quite satisfied that s 114 provides the power that is necessary for the Court to grant an injunction in such circumstances even dealing with caveats that are lodged in other states outside the state in which this Court is currently exercising federal jurisdiction.

15. The granting of an injunction on an interim basis has to be determined according to principle.  It is a discretionary power that the Court has to grant the injunction. The Court has to consider a number of matters. It has to consider questions whether there is a triable issue. It has to consider questions relating to the balance of convenience.

16. In this particular case, as I have already pointed out, the wife puts absolutely no evidence before the Court and makes no submission in respect of what indeed her caveatable interest in the D Town property might be. Of course in fairness to her, today she is unrepresented by a solicitor, however, up until yesterday, she was represented by a solicitor and indeed her solicitor was responsible for drawing her material. It seems that he did not, in the drawing of that material, turn his mind really to the necessity for her to establish with some evidentiary basis the nature of the caveatable interest that she was claiming.

17. One can only assume from where I sit that she might have made some argument about an equitable interest in the property having regard to what I would describe as Baumgartner[1] like principles. However, the wife made out no case of a triable issue in respect of an equitable interest in the property.  Even if it that was not sufficient to dispose of the wife’s application on its own, consideration of the balance of convenience does not, in my judgment, favour the making of orders that leave the caveat in place.

    [1]          Baumgartner v Baumgartner (1987) 164 CLR 137

18. It seems, as I see it at the moment on the evidence, that the determination of the property interests of the parties or either of them in this case revolves around three real properties, that is: the D Town property at C Street; the Suburb G property of the wife that has been transferred to her son; and the F Street property of the husband that has been transferred to his son. Those latter two properties of course are not currently in the pool of property, both of them being registered in other parties’ names. However, it seems though from the case presented by both sides that each might be seeking orders eventually, depending on how they are advised and what they do, pursuant to s 106B to set aside those transactions. Whether that is the case or not, at the moment the only property of the parties or either of them that actually can be considered as being in the pool is the D Town property and the plant and equipment of the business and any goodwill, if such exists, that pertains to that business.

19. The position is, therefore, reasonably straight forward.  There is a property in the name of the husband that is seemingly worth something around $285,000. There are three substantial debts secured by mortgage over that property that total almost the value of the property, $283,000. The debts are $14,000 in arrears. The bank, even on the wife’s case, has been seeking full discharge of those liabilities for nearly a year now. The bank on the husband’s case wants to now act to seize and sell the properties. The caveat of course, being placed there by the wife, prevents that. If the loans are already $14,000 in arrears one could expect that they will go further and further into arrears, at least in the husband’s case, whilst that property is unable to be sold.

20. It seems, prima facie, that this is a very serious case of asset preservation. If the property is not sold and those liabilities paid out before this matter comes to trial, the way things currently appear, I am satisfied that the liabilities are likely to increase dramatically, ultimately to exceed the value of the property itself. If the caveat remained in place it is likely then that all of the husband’s equity in the property will be consumed by the bank recovering its liability.

21. Leaving the caveat in place would also seriously put at jeopardy the husband’s mother’s house. If the caveat stays in place and the bank cannot take steps to transfer the husband’s interest in the property to a purchaser as mortgagee in possession, then there is little doubt that the bank would look to other security, namely the house of the husband’s mother. That fact is something that the husband and his brother say they want to try and avoid and that is why they are taking the steps that they are.

22. The wife, when asked about that, quite remarkably said that she does not care. She thinks that the appropriate outcome is for the husband’s mother to lose her house to the bank. Whilst the wife might not care about that, this Court does. This Court would not consider that to be a very appropriate outcome in the circumstances of a property adjustment dispute between the husband and the wife. Ultimately at the end of the day, if the house stayed in place as the mother seeks, and the debts stay in place, they all get taken into account in determining the pool. As I have said, I would expect the debt to be even higher and the value of the husband’s equity in the property to be even less.

23. The wife does not argue that the price at which the husband and his brother have agreed to transfer the interest of the husband to the brother, does not represent a fair or just consideration for the property. Similarly, she made no case in respect of the F Street property of that form either.

24. In all the circumstances, having regard to the fact that she has not, in my judgment, demonstrated on the evidence the nature of her caveatable interest and also considering that the balance of convenience in this particular case weighs heavily in favour of preservation of property I am persuaded that the husband ought to be allowed to sell the house to his brother as planned and that an injunction ordering the removal of the caveat should be put in place. I intend to do that.

25. I also consider, although it is probably not necessary given the bank’s capacity to protect its own position and its likely action, that an order ordering the husband to ensure that all the proceeds of sale of the property to his brother are used to discharge existing liability is made. I intend to therefore dismiss the wife’s application for orders restraining the husband from dealing with the property and permitting her to leave the existing caveat in place.

Spousal Maintenance

1. Finally, the wife’s spousal maintenance application has to be determined. In her application filed on 16 February 2015 in the Federal Circuit Court that was transferred to me, the wife also seeks an order that the respondent husband pay or cause to be paid to her interim spousal maintenance in the sum of $951 per week. She pressed that today and pointed to her financial statement in support of it.

2. In her affidavit evidence she had said that she is not working and she is unemployed and in her financial statement filed 16 February 2015 she said that she has expenses of a total of $1,213 per week. Such expenses including car insurance of $13 per week; registration of her motorcar of $8 per week; and other expenses listed in part N of that of $1,185 per week. Notably in that financial statement she does not include any amount for rent. She told the Court today, under affirmation in the witness box, she does not pay any rent to her son for living in the unit that she does at Suburb G.

3. In other evidence that she gave, she told the Court that she is now working. Indeed, she said that since 22 April, over a month ago, she has been working full time. She works for a company called I Pty Ltd. She works eight hours a day, sometimes longer if she works through her lunch hour, five days a week, under a 12 month contract for which she is paid $36,000 per year.  She says that entitles her to receive in the hand after tax $614 per week.

4. That immediately covers that much of her need. That leaves a shortfall of $599 in her financial statement. As Mr Selfridge submitted, those expenses cannot include house repairs without any further evidence given that she does not own the house.

5. She has entertainment and hobbies at $120 per week. There is no evidence about what that is spent on and I consider that to be in the circumstances quite excessive. She has holidays at $70 per week. In the circumstances I regard that as excessive. She says she has got expenses that are education expenses including fees and levies of $65 per week. Whilst she might have been doing some training at the time she swore the document and was not working, there is no evidence to suggest that she still has such expenses and I will not allow those in this determination.

6. She has an expense for cleaning which we know nothing about. Repairs, furnishings and appliances, she claims $30 for that and we know nothing more about that. I would not in the circumstances consider that reasonable having regard to the fact that she does not own the house any more on her case. Other necessary commitments she has listed, but she has not specified, at $130.

7. It seems to me that I would reduce that $599 to somewhere between $400 and $500 per week as representing her reasonable weekly expenditure requirement without rent.

8. She says simply the husband has the capacity to pay that. The only evidence I have really about his capacity is in his financial statement. He sets out that he earns $493 per week, the salary he pays himself from the rock crushing business. He then says that his expenses are $160 for the mortgage on the house and $300 on his Mastercard. As it was made clear during the exchange with Mr Selfridge of counsel, having regard to the fact that my orders are going to allow him to sell the property to his brother and the discharge the mortgage, the husband will, presumably, not have to pay $160 per week in mortgage payments as he sets out in his financial statement.

9. I have then no evidence as to where he will be living. Whether his brother will let him continue living in the D Town property, whether he will be paying his brother rent, whether his brother will want to rent the place to someone else, whether he will want to sell it – these are all unknowns.  It may be that the husband will have to find alternative accommodation and pay for it in any event. One would have to think that that is indeed a possibility. Otherwise, he says he pays $300 in Mastercard payments, when his Mastercard is at $23,000 in debit.

10. Rather curiously the husband set out no expenses in part N of his financial statement. As I pointed out to Mr Selfridge, the wife’s case, even without paying rent, has her with reasonable weekly expenses of somewhere between $400 and $500 a week. Even if the husband lives frugally, as seems to be the case, it would be hard for the wife to argue that the husband has or does not have similar needs to hers in respect of financial expenses on a weekly basis.

11. Indeed, on the evidence, he is earning less in his hand on a weekly basis than is the wife. I am at this stage, on the evidence I have got before me, satisfied that the husband’s reasonable weekly expenses would certainly consume all of the net amount that he would have left after tax paid by him in respect of the money that he says he is receiving on a weekly basis from the business.

12. Although there is a lot of questions unanswered about the financial performance of the business, as I have said a number of times, there is no dispute between the parties that the business was performing poorly and it appears that it continues to do so. Indeed there is some risk according to the wife that the company, Mr A Prosser Pty Ltd, may go into liquidation at some point in time.

13. All of that convinces me that the husband does not have the capacity to contribute spousal maintenance to the wife at this point in time. I am satisfied that the wife is fortunately earning sufficient money herself at the moment to be supporting herself without needing to live in parlous circumstances.

14. In the circumstances, so satisfied, I will dismiss the wife’s application for interim spousal maintenance.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 29 May 2015.

Associate: 

Date:  15 June 2015