FEDERAL CIRCUIT COURT OF AUSTRALIA
| SALTZER & PACEK (No.2) | [2020] FCCA 1303 |
| Catchwords: FAMILY LAW – Property – injunction – where applicant sought earlier injunctive relief to secure sale of matrimonial home – where injunction of earlier sale refused – where applicant then seeks ex parte injunction hearing – where no notice was given to respondent – applicant seeks to restrict respondent from executing contract of sale – application for such relief not sought in original application – applicants affidavit does not identify that intended purpose of interim relief is to afford him opportunity to purchase property – where affidavits adduce no evidence of ability to purchase property – where applicant sells shares in company without notice to respondent – application principles – respondent’s legal right to exercise power as director to enter contract properly conceded – no allegation of oppression by respondent as shareholder in procuring company to enter contract and sell property – no legal right established – no serious question to be tried – balance of convenience favours refusal – discretionary considerations favour refusal of relief – where respondent seeks orders – appropriate relief – role of the court is not to give imprimatur to terms of contract – costs – application refused with costs. |
| Legislation: Family Law Act 1975 (Cth), ss.106A, 114, 117 Federal Circuit Court Act 1999 (Cth), ss.67, 68 |
| Cases cited: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 Resources: |
| Applicant: | MR SALTZER |
| Respondent: | MS PACEK |
| File Number: | MLC 2954 of 2020 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 21 May 2020 |
| Date of Last Submission: | 21 May 2020 |
| Delivered at: | Melbourne |
| Orders pronounced: | 21 May 2020 |
| Delivered on: | 25 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Jenkins |
| Counsel for the Respondent: | Ms Fisken |
| Solicitors for the Respondent: | Mr Cornelius |
ORDERS
Pursuant to ss.67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The applicant husband’s application in a case filed 8 May 2020 be dismissed.
The respondent wife be permitted to enter into and execute a contract of sale for the sale of A Street, Suburb B in the State of Victoria (property).
The nett sale proceeds from any sale of the property be applied as follows:
(a)first, to pay all costs and…
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- AGLC
- Saltzer and Pacek (No.2) [2020] FCCA 1303
- Case
- [2020] FCCA 1303
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the applicant had established a legal right to the relief sought, specifically whether there was a serious question to be tried and if the balance of convenience favoured granting the injunction. The court also considered the respondent's legal right as a director to enter into a contract for the sale of the property, noting the absence of any allegation of oppression by the respondent as a shareholder in procuring the company to sell the property.
Judge Kelly reasoned that the applicant had failed to establish a legal right to the injunctive relief. The court found no serious question to be tried, as the applicant had not demonstrated any legal basis for restraining the sale. Furthermore, the balance of convenience favoured the refusal of the application, and discretionary considerations also weighed against granting the relief. The court acknowledged the respondent's conceded legal right to exercise her power as director to enter into the contract.
Consequently, the applicant husband's application was dismissed. The respondent wife was permitted to enter into and execute a contract of sale for the property, with specific directions regarding the application of the net sale proceeds. The applicant was ordered to remove a caveat lodged on the property, with provision for the respondent's solicitor to execute the withdrawal in default. The applicant was also restrained from interfering with the sale and ordered to provide discovery regarding certain transactions. The applicant was ordered to pay the respondent's costs of and incidental to his application. The matter was subsequently fixed for a final hearing.
Orders
Orders of the court
1.
Pursuant to ss.67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
2.
The applicant husband’s application in a case filed 8 May 2020 be dismissed.
3.
The respondent wife be permitted to enter into and execute a contract of sale for the sale of A Street, Suburb B in the State of Victoria (property).
4.
The nett sale proceeds from any sale of the property be applied as follows:
(a) first, to pay all costs and expenses of the said sale, including any costs incurred pursuant to paragraph 7 of this Order;
(b) secondly, to discharge any and all liabilities associated with the property, including but not limited to the mortgage to Westpac Banking Corporation and any goods and services tax or capital gains tax as assessed; and
(c) thirdly, the balance, to be placed in a controlled monies account held on behalf of the parties by Domantay Legal.
5.
The balance of any proceeds held in the controlled monies account from the sale of the property pursuant to paragraph 4(c) of this Order be further distributed in accordance with any agreement of the parties in writing.
6.
By 4:00pm on Thursday, 28 May 2020, the applicant husband do all such acts and things, and sign all such documents as may be required to execute, at his expense, and lodge, a withdrawal of the caveat ... lodged by him upon title to the said property.
7.
In default of compliance with paragraph 6 of this Order, pursuant to
s 106A(1) of the Family Law Act 1975 (Cth), the respondent’s solicitor, Rod Cornelius, be authorised to execute the withdrawal of the caveat for and on behalf of the husband.
8.
Subject to paragraph 9 of this Order, the applicant husband be restrained whether by himself, his servants, his agents or howsoever otherwise from interfering or taking any step to interfere in any sale of the property.
9.
Paragraph 8 of this order shall not operate to prevent the applicant, whether by himself or his legal representatives from making enquiries, in writing, of the respondent’s legal representatives respecting the progress and completion of any sale of the property.
10.
By 4:00pm on Thursday, 28 May 2020, the applicant provide to the respondent’s solicitors discovery of documents related to any transactions, or purported transactions, undertaken by him or on his behalf:
(a) to resign as a director of C Pty Ltd (C Pty Ltd);
(b) to appoint or purporting to appoint Mr D or any other person as a director of C Pty Ltd;
(c) to dispose of any shares in C Pty Ltd.
(d) to make any changes or additions to the register of shares in C Pty Ltd.
11.
The parties be at liberty, on reasonable notice, to apply.
12.
The applicant husband pay the respondent wife’s costs of and incidental to his application in a case dated 8 May 2020 and her response dated
18 May 2020.
Final Hearing:
13.
The matter be fixed for Final Hearing at 10.00am on 4 February 2021 in the Federal Circuit Court of Australia at Melbourne before
Judge A Kelly with an estimated hearing time of 2 days.
14.
The following directions are made respecting discovery and use of documents at trial:
(a) no later than four months before the trial date, the parties are to confer and identify all documents upon which they propose to adduce in evidence at trial (Documents);
(b) no later than two months before the trial date, the applicant shall prepare, serve and file an indexed paginated folder of the Documents arranged in chronological order;
(c) no Documents (including any valuations, family report or other expert reports) are to be attached to any affidavit, but may only be referred to in an affidavit by page number and volume (if necessary), from the folder(s) of Documents;
(d) save with leave of the Court, no document identified pursuant to paragraph 14(a) of this Order may be relied upon or adduced in evidence at trial.
15.
Each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief) and further:
(a) the applicant electronically file and serve any affidavits to be relied upon at the final hearing not later than 28 days prior to the hearing;
(b) the respondent electronically file and serve any affidavits to be relied upon at the final hearing not later than 21 days prior to the hearing.
16.
Other than as provided in this Order, no party may file or rely upon any further evidence without leave of the court.
17.
The evidence in chief of each party and any witness be by way of affidavit as provided by paragraphs 15 to 16 of this order.
18.
Not later than one month prior to the final hearing all parties do electronically file and serve an Outline of Case Document
(not exceeding 12 pages) including a complete statement of:
(a) the precise orders to be sought;
(b) each of the items said to constitute the parties, assets, liabilities, financial resources and superannuation interests;
(c) the affording of procedural fairness to the trustees affecting any of the parties’ superannuation interests.
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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