SALTZER & PACEK (No.2)

In SALTZER & PACEK (No.2), heard before Judge A. Kelly of the Federal Circuit Court of Australia, the applicant husband sought ex parte injunctive relief to prevent the respondent wife from executing a contract for the sale of the matrimonial home. The applicant's application was not part of his original application, and his affidavits did not establish his ability to purchase the property, nor did they identify this as the intended purpose of the interim relief sought. The respondent, meanwhile, sought orders permitting the sale of the property and for the applicant to pay her costs.

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.