SALTZER & PACEK

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.