SALTZER & PACEK - [2020] FCCA 854

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALTZER & PACEK

[2020] FCCA 854

Catchwords:
FAMILY LAW – Property – injunction – applicant seeks to prevent completion of contract of sale of former matrimonial home – where parties transferred joint interest in property to the respondent as sole proprietor – where evidence demonstrates that parties were agreed in sale, appointment of agent, commission and advertising budget – where applicant lodges and then removes caveat – where parties’ agreement not disclosed in applicant’s primary affidavit – where applicant fails to establish sufficiently arguable case – where applicant’s capacity to fund any purchase not established – where rights of purchaser under uncompleted contract of sale intervene – where purchaser not joined to application – where balance of convenience does not favour grant of injunction – application refused.

Cases cited:

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Sargent v ASL Developments Pty Ltd (1974) 131 CLR 634
Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315

Applicant:

MR SALTZER

Respondent:

MS PACEK

File Number:

MLC 2954 of 2020

Judgment of:

Judge A. Kelly

Hearing date:

14 April 2020

Date of Last Submission:

14 April 2020

Delivered at:

Melbourne

Delivered on:

16 April 2020

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms Fisken

Solicitors for the Respondent:

Mr Cornelius

ORDERS

The respondent wife do all things and sign all documents as may be necessary to effect completion of the contract of sale dated 19 February 2020 (contract of sale) of the property situate at M Street, Suburb N, in the State of Victoria (property), the settlement of which is scheduled to occur on 20 April 2020.
The respondent provide the applicant as soon as is reasonably practicable with a copy of the statement of adjustments relating to settlement upon the sale of the property.
Upon completion of the sale of the property, the proceeds of sale be distributed as follows:
(a)to pay the costs, commissions and expenses of sale;
(b)the balance remaining be held on trust for the parties by Domantay Legal in a controlled monies interest-bearing account until further order or as may be agreed by the parties in writing.
The applicant be restrained whether by himself, his servants, his agents or howsoever otherwise from interfering or taking any step to interfere with completion of the sale of the property including, without limitation, by making any attempt, directly or indirectly, to communicate with the purchaser under the contract of sale.
Direct that a copy of this Order be served by the respondent upon the purchaser of the property.
The respondent’s costs of and incidental to this application be reserved.
Liberty is reserved to apply on short notice.
By consent, pursuant to ss.67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), the Court directs that the parties be allowed to appear and to make submissions before the Court via audio link.

IT IS NOTED that publication of this judgment under the pseudonym Saltzer & Pacek

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Saltzer and Pacek [2020] FCCA 854
Case: [2020] FCCA 854
Decision Date: 16 April 2020

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge A. Kelly considered an application by the applicant seeking an injunction to prevent the completion of the sale of the former matrimonial home. The parties had previously transferred their joint interest in the property to the respondent as sole proprietor. The dispute arose from the applicant's attempt to halt the sale after agreeing to its terms, including the appointment of an agent, commission, and advertising budget.

The court was required to determine whether the applicant had established a sufficiently arguable case to warrant an injunction, particularly in light of the intervening rights of the purchaser under an uncompleted contract of sale. Key issues included the applicant's failure to disclose the parties' agreement regarding the sale in their primary affidavit, the applicant's unproven capacity to fund any potential purchase of the property, and the fact that the purchaser had not been joined to the proceedings. The court also had to consider the balance of convenience.

Judge Kelly reasoned that the applicant had failed to demonstrate a sufficiently arguable case for the injunction. The court noted the applicant's prior agreement to the sale and the subsequent removal of a caveat, which weakened their position. Furthermore, the applicant's financial capacity to acquire the property was not established, and the rights of the innocent purchaser, who was not a party to the proceedings, were a significant consideration. The court found that the balance of convenience did not favour the grant of an injunction.

Consequently, the application for an injunction was refused. The court ordered that the respondent proceed with the completion of the contract of sale, with the proceeds to be distributed after sale costs. The remaining balance was to be held on trust pending further order or agreement. The applicant was restrained from interfering with the sale, and the respondent was directed to serve a copy of the order on the purchaser. The respondent's costs of the application were reserved.

Orders

Orders of the court

The respondent wife do all things and sign all documents as may be necessary to effect completion of the contract of sale dated 19 February 2020 (contract of sale) of the property situate at M Street, Suburb N, in the State of Victoria (property), the settlement of which is scheduled to occur on 20 April 2020.

The respondent provide the applicant as soon as is reasonably practicable with a copy of the statement of adjustments relating to settlement upon the sale of the property.

Upon completion of the sale of the property, the proceeds of sale be distributed as follows:

(a) to pay the costs, commissions and expenses of sale;

(b) the balance remaining be held on trust for the parties by Domantay Legal in a controlled monies interest-bearing account until further order or as may be agreed by the parties in writing.

The applicant be restrained whether by himself, his servants, his agents or howsoever otherwise from interfering or taking any step to interfere with completion of the sale of the property including, without limitation, by making any attempt, directly or indirectly, to communicate with the purchaser under the contract of sale.

Direct that a copy of this Order be served by the respondent upon the purchaser of the property.

The respondent’s costs of and incidental to this application be reserved.

Liberty is reserved to apply on short notice.

By consent, pursuant to ss.67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), the Court directs that the parties be allowed to appear and to make submissions before the Court via audio link.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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