Samuels and Shaw and Ors

FAMILY COURT OF AUSTRALIA

SAMUELS & SHAW AND ORS

[2007] FamCA 833

FAMILY LAW - APPLICATION TO DISCHARGE INTERIM INJUNCTION - Whether appropriate to discharge interim injunction pending determination of final hearing - Whether appropriate to make interim or partial property settlement order - Whether appropriate to appoint wife to have responsibility for sale of properties - Properties registered in name of third party and subject to proceedings in Equity Division of Supreme Court of NSW - Consideration of release of parties from proceedings - Whether appropriate to make order releasing party other than on party's application - Whether proceedings should be transferred to the Supreme Court of NSW - Whether final hearing should be deferred pending investigations of allegations of fraud and domestic violence

Conveyancing Act 1919 (NSW)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)
Property Relationships Act 1984 (NSW)

Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341
A.S.I.C. v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Chambers v Jones [1902] 2 SR NSW 177
Johnstone v Johnstone [1902] SR NSW 90
Harris & Harris (1993) FLC 92-378
Miller v Cameron & Ors (1936) 54 CLR 572
Port of Melbourne Authority v Anshun (1981) 147 CLR 589
Re Wakim; Ex Parte McNally & Anor (1999) 198 CLR 155
Warby v Warby (2002) FLC 93-091

APPLICANT:

Ms Samuels

FIRST RESPONDENT:	Mr Shaw
SECOND RESPONDENT:	Mr P
THIRD RESPONDENT:	L Pty Ltd
FOURTH RESPONDENT:	D Pty Ltd
FIFTH RESPONDENT:	Ms E
SIXTH RESPONDENT:	Mr G
SEVENTH RESPONDENT:	Mr A
EIGHTH RESPONDENT:	Ms J
NINTH RESPONDENT:	Ms S
TENTH RESPONDENT:	Ms T

FILE NUMBER:

SYF

5191

1993

DATE DELIVERED:

17 August 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Boland J

HEARING DATES:

26 July 2007, 8 August 2007

REPRESENTATION

ADVOCATE FOR APPLICANT:	The Applicant in person
ADVOCATE FOR 1^ST RESPONDENT:	The First Respondent in person
ADVOCATE FOR 2^ND RESPONDENT:	The Second Respondent in person

Orders

The orders made by Judicial Registrar Knibbs on 21 April 1999 are discharged.
Order 1 of the orders made by the Rose J on 20 December 2006 is discharged.
The husband provide to the wife in writing before 3 September 2007 details of any superannuation fund of which he is currently a member.
That paragraphs 1 to 15, and 17 of the wife’s Application in a Case filed 10 July 2007 are dismissed.
The wife’s Application in a Case filed 17 July 2007 is dismissed.
The wife’s Application in a Case filed 26 July 2007 is dismissed.
Costs of the Application in a Case filed 10 July 2007, Further Application in a Case filed 17 July 2007, Response to an Application in a Case filed 26 July 2007 by the third respondent and Response to an Application in a Case filed 26 July 2007 by the husband be reserved to the final hearing.

AND THE COURT NOTES the undertaking of the Second Respondent, Mr P as follows:

A.I [Mr P], of [B1 property], Director of L Pty Ltd, undertake to the Court pending further order of the Court, not to increase the mortgage held over properties [B1 and B2], identified as f … and f …, or to refinance the mortgage.
B.I also undertake to give 21 days notice of any exchange of contracts in respect of either or both [B1 and B2].

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Samuels & Shaw and Ors

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 5191 of 1993

Ms Samuels

Applicant

And

Mr Shaw

First Respondent

Mr P

Second Respondent

L Pty Ltd

Third Respondent

D Pty Ltd

Fourth Respondent

Ms E

Fifth Respondent

Mr G

Sixth Respondent

Mr A

Seventh Respondent

Ms J

Eighth Respondent

Ms S

Ninth Respondent

Ms T

Tenth Respondent

REASONS FOR JUDGMENT

Introduction

Ms Samuels brought three separate applications before the Court on 26 July 2007. Ms Samuels was married to Mr Shaw. They were divorced in 1993. For convenience, and without wishing to cause any offence, I will refer to them in these reasons as “the wife” and “the husband”.
The substantive proceedings in this Court, which commenced in 1998, are yet to be determined. The orders now sought in the substantive proceedings are contained in amended application filed by the wife on 22 March 2005. The wife seeks, inter alia, orders by way of settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). In the amended application the husband is named as first respondent. Other parties named in the proceedings include Mr P (“[Mr P]”) as second respondent, and two companies, SL Pty Ltd (now known as L Pty Ltd) (“[L]”) and SD Pty Ltd. (“[D]”) as third and fourth respondents respectively. I will return to discuss in more detail the parties named, and the orders sought in the substantive proceedings, later in these reasons.
During the course of the protracted proceedings in this Court, including five appeals or applications for leave to appeal to the Full Court, the wife has pursued litigation in the Supreme Court of New South Wales (“the Supreme Court”) and in others courts. The impending finalisation of the Supreme Court proceedings has been the catalyst for the present applications. The parties to the Supreme Court proceedings consented to orders being made in that Court on 17 July 2007 (later amended on 30 July 2007) to approach this Court for the discharge of an injunction granted on 21 April 1999.
The wife was formerly a party to the proceedings in the Supreme Court, but as she is currently an undischarged bankrupt, she was removed as plaintiff from the proceedings and the Official Trustee in Bankruptcy (“the trustee”) substituted in lieu. The trustee determined not to intervene in the proceedings in this Court to save costs, with the effect the wife, notwithstanding her bankruptcy, continues as a party to these proceedings.

Brief background facts

The husband was born on … September 1948 in New Zealand. He is engaged in full-time employment as a teacher.
The wife was born on … April 1943 in Australia. The wife is currently in receipt of social security benefits.
The husband and wife were married on … January 1971 in Sydney, NSW.
There were three children of the marriage. The children B and M are over the age of 18 years. The child Z is deceased.
The proceedings first commenced in this Court in June 1993 when the wife filed an application for divorce (dissolution of marriage). At the time of filing of that application the husband and wife were living separately and apart under the one roof. A decree nisi of dissolution of the marriage was pronounced on 9 July 1993. No proceedings were filed by either party until 7 May 1998 when the wife filed, out of time, an application for final orders.
On 8 July 1998 the wife filed an application for leave to commence out of time proceedings for spousal maintenance. On the same day she filed an application for urgent maintenance.
On 10 July 1998, by consent, the wife was granted leave to commence proceedings for property settlement and spousal maintenance out of time.
Notwithstanding the orders of 10 July 1998, on 18 September 1998 the husband, who was legally represented, filed a response in which he opposed the wife’s applications for leave to commence proceedings out of time and sought that the proceedings for property settlement be stood over generally.
On 2 November 1998 the wife filed an amended application for final orders in which she named Mr P as second respondent.
On 12 March 1999 Brian Muir & Company, solicitors, filed a notice of address for service on behalf of Mr P. Mr Muir of that firm acted on behalf of Mr P, L Pty Ltd and D Pty Ltd until recently. Mr P and the companies are now self-represented.
On 21 April 1999 the wife filed an interim application in which she sought an injunction restraining the sale or disposal of the properties, B1 and B2. For convenience, when I refer to B2 property I will refer to “[B2]”, and “[B1]” in respect of B1 property. When referring to both properties I will refer to them as “the properties”.
On 21 April 1999 an order was made by Judicial Registrar Knibbs on an ex parte basis. The order is in the following terms:
1.That the respondents [Mr P] and [Mr Shaw] and each of them be restrained from doing any act or thing or signing any document that has effect either of a personal or in their capacities as directors of transferring, disposing, selling, mortgaging or encumbering or purchasing the properties known as [B1] and/or [B2].
2.That the Company known as [SD] Pty Ltd be restrained from doing any act or thing that has effect of transferring, selling, disposing of or purchasing or encumbering the interest of the Company in the properties known as [B1] and/or [B2].
3.That these orders are until further order.
4.That the respondents and the company [SD] [sic] Pty Ltd be granted leave to apply to vary, suspend or discharge all or any of the orders made today on written notice to the applicant.
5.That a copy of these orders issue forthwith.
6.That a copy of the Applications, supporting affidavit and the orders made today be served on each of the respondents and the said company as soon as possible.
7.That the Application Form 8 filed 21 April 1999 be stood over to the Judicial Duty List at 10:00 am on Wednesday, 28 April 1999.
8.I note that the matter is urgent and for that reason these orders are made ex parte.
9.I note that the applicant gives the usual Undertaking as to Damages.

The present applications

On 10 July 2007 the wife filed an application in which she seeks orders that she, the husband, Mr P and L Pty Ltd do all acts and things to cause the properties to be sold, and that she have authority to conduct the sale on behalf of the husband, Mr P and L Pty Ltd.
The wife’s second application is an application filed on 17 July 2007. In that application she seeks orders for the discharge of the injunction made by Judicial Registrar Knibbs on 21 April 1999, “[p]ursuant to the order for the sale of [B1 and B2] as per my application filed on 10 July 2007”.
The wife filed a further application in Court on 27 July 2007 in which she seeks orders that her application for an order for sale of the properties be stood over until the final hearing of the matter. She also seeks the injunction granted on 21 April 1999 be continued until an order for sale of the properties. In addition, she seeks orders that the date to be set for the final hearing of the case be deferred until the New South Wales Police Fraud have finalised their investigation of a “fraud” incident and a “domestic violence” incident. In addition, she seeks orders concerning a sum of $55,000.00 and an order that Mr P provide to her various documents of proof of payment of the mortgage in respect of the properties.
On 26 July 2007 the husband filed a response in which he seeks the discharge of the injunction. Similar orders are sought by Mr P and L Pty Ltd. In his response filed 26 July 2007 Mr P asserted he agreed with the orders sought by the wife as follows:
Application in a Case filed 17 July 2007, agree in full.
Application in a Case filed 10 July 2007, paragraph 1, 8, 12 and 19.
However, before me, Mr P amended that part of the response to say that he agreed with orders 8 and 9 of the application filed on 10 July 2007. Orders sought by him were in the following terms:
1.That the Family Court dismiss [Mr P], [L] Pty Ltd and [D] Pty Ltd from the Family Court immediately the injunctions are lifted.
2.That respondents 5, 6, 7, 8, 9, 10 be also dismissed from the Family Court, having no part in any application before the Court.
3.That the Family Court have no part in the sale or disposal of or refinancing of the properties known as [B1 and B2]
4.That costs of today, and all costs which have been reserved be given to the respondents.
No affidavit in support of either response was filed by the husband or Mr P.
The wife relied on her affidavits filed 18 July 2007 and 26 July 2007. Subsequently she filed in Court, unopposed, an affidavit sworn on 7 August 2007.
Before me on 26 July 2007, the wife initially sought that her applications filed on 10 July 2007 and 17 July 2007 be withdrawn and dismissed. However, the wife then sought the reinstatement of those applications, and made oral submissions in which she submitted the Court should make orders for the immediate sale of the properties, and that she should be responsible for the conduct of the sale.
Because of the apparent inconsistencies in the relief sought by the wife, which she confirmed was not sought in the alternate, I granted leave to the husband and Mr P to make an oral application before me for the discharge of the injunction granted on 21 April 1999. The husband and Mr P each opposed the wife having the conduct of the sale of the properties.
The husband however supported the sale of the properties by public auction and suggested this would occur by reason of orders to be made in the Supreme Court.
The husband and Mr P were cross examined by the wife and gave sworn evidence before me. The wife was also briefly cross examined.
Mr P’s sworn evidence was that he proposed the properties should be sold, but that the mode of sale should be determined by him on advice from local real estate agents.
During the proceedings Mr Miles, instructed on behalf of ITSA as trustee for the wife’s bankrupt estate, was, without objection, permitted to sit at the bar table and to provide assistance to the Court.
There were two exhibits in the proceedings, Exhibit “A” being Short Minutes of Order signed by the parties and made by Hammerschlag J in the Supreme Court on 17 July 2007 and amended on 30 July 2007 and Exhibit “B” being an undertaking of Mr P in the following terms:
26.7.07
I [Mr P], of [B1 property], Director of [L] Pty Ltd, undertake to the Court pending further order of the Court, not to increase the mortgage held over properties [B1 and B2], identified as f … and f …, or to refinance the mortgage.
I also undertake to give 21 days notice of any exchange of contracts in respect of either or both [B1 and B2 properties].
[signature]
[Mr P]
After the hearing of the current applications, the wife forwarded correspondence to my associate, and it appears to the husband and Mr P. Mr P also communicated with my associate by email. Accordingly I re-listed the matter before me on 8 August 2007 when I added to Exhibit “A” amendments made to the Short Minutes of Order on 30 July 2007. I permitted the wife to rely on correspondence sent to my associate as her written submissions in support of her applications. Likewise I permitted Mr P to rely on his email communication as his written submissions in support of his oral application and response. I directed that the wife could file by 4.00 pm on 10 August 2007 a copy of her affidavits relied on in the Supreme Court relevant to her claim of a debt of $55,000.00 allegedly owed by Mr P which she still seeks to pursue in this Court. The parties also agreed that I could read the reasons for judgment of Palmer J in the Supreme Court proceedings.
Subsequently on 10 August 2007 the wife caused to be forwarded to my associate detailed written submissions and other documents. No orders were made by me for the filing of written submissions.
It is apparent from the chronology which I set out below, that during the course of the litigation in this Court many applications seeking, in effect, the same relief have been sought in this Court, voluminous documentation has been filed by the wife, and significant amounts of Court time involved in interlocutory applications. It appears to me that, having regard to the main purpose of the Family Law Rules 2004, which is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case, and to afford natural justice to all parties, that I should determine the matters in issue without taking into account the unauthorised submissions and documents forwarded to my associate by the wife by letter dated 10 August, 2007. In so determining I take into account that I permitted the wife to file her further application and affidavit in Court on 26 July 2007, allowed cross examination of the parties, allowed time for extensive oral submissions, and re-opened the matter and accepted correspondence provided by the wife and Mr P could be treated as written submissions.

Issues

The present applications before me raise the following issues:
1.Is it appropriate the injunction granted by Judicial Registrar Knibbs on 21 April 1999 remain in place pending further order or should it be discharged forthwith.
2.Should orders be made in this Court for the sale of the properties pending determination of final proceedings under s 79 of the Act.
3.Whether the wife should have the care and conduct of the sale of the properties.
4.Is it appropriate to make an order discharging respondents to the proceedings, other than on the application by the particular respondent and/or discharge Mr P, L Pty Ltd, D Pty Ltd as respondents to the proceedings.
5.Should the whole of the proceedings be transferred to the Supreme Court pursuant to the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth).
6.What steps can be taken to conclude this litigation.
7.Should the final hearing be deferred pending the “Fraud” and “Domestic Violence” matters referred to by the wife.
In order to properly deal with these issues, it is appropriate that I set out a chronology of litigation in this Court in addition to those matters referred to under the heading “Brief Background Facts”. Whilst such chronology is lengthy, it provides context to the present applications.

Chronology

On 9 May 1999 the wife obtained from the then Australian Securities & Investment Commission a company extract for SD Pty Ltd. (“[SD]”) That search discloses the wife was appointed as a director of SD on 5 March 1998 and ceased being a director on 5 May 1998. The husband was appointed a director on 6 November 1997 and ceased his directorship on 14 March 1998. Mr P was appointed a director on 6 November 1997.
On 10 June 1999 the wife filed an amended application for property settlement in which she named seven additional parties as respondents to the proceedings:
·Respondent 3 – SD Pty Ltd;
·Respondent 4 – Ms T;
·Respondent 5 – Ms E;
·Respondent 6 – Ms J;
·Respondent 7 – Mr G;
·Respondent 8 – Mr A;
·Respondent 9 – Ms S.
On 5 August 1999 Judicial Registrar Johnston dismissed the wife’s application against Ms T and released her as a party from the proceedings. He also released Ms E, Mr G and Mr A. On the same day Judicial Registrar Johnston made orders restraining the trustee of the State Authority Superannuation Scheme, the Hesta Super Fund and the Australian Retirement Fund from paying out to the husband or any person on his behalf any amounts pursuant to any benefits he has in any such scheme or fund.
On 31 August 1999 the wife filed an application to review the orders of Judicial Registrar Johnston.
On 21 September 1999 Cohen J, who was hearing the wife’s review application, delivered ex tempore reasons for judgment, and made orders that a next friend (as then described in then Family Law Rules) be appointed to represent the wife in the proceedings and “the question of dismissal of the application against all respondents other than the husband be stood over until 9.30 am on 12 October 1999”. The wife appealed against these orders to the Full Court by notice of appeal filed on 7 December 1999.

On 9 November 1999 Cohen J delivered further ex tempore reasons. His Honour noted the matter had not been before the Supreme Court. Cohen J refused to further adjourn the proceedings.
On 14 January 2000 the wife sought an extension of time in which to file an appeal against the orders made by Cohen J on 21 September 1999 and 9 November 1999.
On 6 November 2000 the wife’s appeal was heard by the Full Court. The Full Court allowed the wife’s appeal and ordered that the matter be remitted for rehearing by a judge other than Cohen J.
On 7 November 2000 the wife filed an application seeking to restrain Mr P entering onto the B2 property.
On 22 November 2000 Judicial Registrar Loughnan made an order in the following terms:
1.That until further order of the court Mr [P] be restrained from entering the property at [B2] [sic] harassing the wife and from dealing with the wife directly except through his solicitor Mr Brian Muir.
2.That liberty be granted to Mr [P] or any party to restore the matter to the list on 48 hours notice to the court and to the other parties.
On 6 December 2000 Judicial Registrar Loughnan discharged the order restraining Mr P entering onto the B2 property.
In the meantime, on 1 December 2000, Moore J had made directions in relation to the rehearing of the wife’s review application in accordance with orders of the Full Court. On 1 December 2000 Moore J consolidated all outstanding applications for final orders for property settlement, spousal maintenance and adult child maintenance and ordered they be listed for hearing as a special fixture on 30 April 2001.
The final hearing was listed before Rose J for hearing on 30 April 2001.
On 11 December 2000 the wife filed an application seeking to restrain Mr P from entering B2 and from coming into personal contact with her. The wife also sought an order that Mr P forward documents to her post office box number or via facsimile in the event of an urgent application.
On 11 December 2000 Mr P filed an application seeking the wife be declared vexatious, the eviction of the wife from B2, the dismissal of the injunction made by Judicial Registrar Knibbs, and that he not have any further part in the proceedings.
On 15 December 2000 Rose J dismissed both applications save and except he made an order that Mr P direct all correspondence and other documents to the wife at her post office box.
On 8 January 2001 the wife filed an application in which she sought exclusive occupancy of B2 until the completion of the substantive proceedings. An application in similar terms was made by the wife on 22 January 2001.
On 12 January 2001 Chisholm J struck out the wife’s application filed on 8 January 2001. On 25 January 2001 his Honour made orders in chambers striking out a number of subpoenae issued at the request of the wife.
On 5 February 2001 Judicial Registrar Johnston dismissed the wife’s application filed on 22 January 2001.
In February 2001 the wife sought to issue various subpoenae. The matter was listed before Rose J on 7 March 2001 when the wife sought that his Honour should disqualify himself. Rose J refused the wife’s application for disqualification.
On 14 February 2001 Senior Registrar Gersbach made orders that an application to inspect documents be stood over to the first day of the hearing (2 April 2001) and reserved costs.
On 22 February 2001 the wife filed an application seeking a stay of all orders made from 1 December 2000 until the rehearing ordered by the Full Court, save and except the order made by Rose J for service of documents on her.
On 15 March 2001 the wife filed an application to review Senior Registrar Gersbach’s orders. On the same day the wife filed an application seeking leave to view and photocopy subpoenaed documents, and to reinstate her daughter, M, as an applicant to the substantive application.
On 21 March 2001 the wife’s application for leave to appeal Chisholm J’s orders of 25 January 2001 came before Ellis J. His Honour vacated the hearing date of the applications filed by the wife on 15 March 2001 and listed them for hearing before a Judge on 27 April 2001. Orders were made that the wife pay the husband’s and Mr P’s costs.
The wife’s application for leave to appeal the orders made by Chisholm J on 25 January 2001 was heard by the Full Court on 30 March 2001 (Finn, Coleman & Mushin JJ) and reasons for judgment were delivered on that day. The Full Court upheld the wife’s appeal on the basis that the trial Judge’s orders had been made in chambers without the opportunity for any party to be heard in respect of the dismissal of the subpoena.
On 2 April 2001 the matter was listed before Rose J for case management purposes. A further application was made by the wife that Rose J disqualify himself.
It appears that by this time the wife had commenced proceedings as a plaintiff in the Equity Division of the Supreme Court. On 2 April 2001 Rose J noted “that the parties will be in a position to inform Rose J of precisely the orders and directions made by the Supreme Court of New South Wales in its Equity Division on 9 April 2001”. Rose J adjourned the review application before him until 17 April 2001. On that date the review application was stood over before Rose J to ascertain readiness for hearing on 24 April 2001.
On 24 April 2001 the wife filed an application in which she sought orders adjourning the final hearing of the property and spousal maintenance proceedings pending completion of the proceedings in the Supreme Court. On that day Rose J made orders by consent as follows:
1.That the hearing of the property settlement proceedings fixed to commence on 30 April 2001 is vacated.
2.That the property settlement proceedings are stood over for mention before Rose J at 9.30am on 4 June 2001 for the purpose of hearing any application for transfer of those proceedings to the Supreme Court of New South Wales and for further directions.
3.That the hearing of the wife’s pending Application for Leave to Appeal fixed for 23 April 2001 is vacated.
4.That the wife’s Application for Review filed 31 August 1999 be listed for mention before Rose J at 9.30am on 4 June 2001 for further directions.
5.That the wife’s Application Form 8 filed 24 April 2001 be listed for mention before Rose J at 9.30am on 4 June 2001 for further mention.
On 17 May 2001 the wife filed an application in which she again sought reinstatement of her daughter as an applicant and orders for production of various documents. She also sought an order that all named respondents be included on the front sheet of Court Orders. An application in similar terms was filed by the wife on 5 June 2001.
On 18 June 2001 the wife’s applications were listed before me for a procedural hearing. On that occasion I made the following notation:
It is noted that the applicant wife wishes to have the Supreme Court proceedings finalised before re-hearing of the application in relation to orders by Cohen J remitted from the Full Court of this Court for rehearing as well as the substantive proceedings, being her application for property settlement.
I stood the matter over until 27 August 2001 for further procedural directions.
On 25 June 2001 the wife filed an application seeking orders to photocopy subpoenaed material. That application was listed before Senior Registrar Gersbach on 25 June 2001. A number of orders were made in respect of subpoena by the Senior Registrar who struck out a subpoena to the Colonial Bank as being deficient in form.
On 19 July 2001 the wife filed an application to review orders made by Senior Registrar Gersbach on 25 July 2001.
On 26 July 2001 the wife filed an application in which she sought to reinstate as respondents to the proceedings the third to tenth respondents inclusive.
On 28 August 2001 Senior Registrar Gersbach refused to make orders reinstating those respondents on the basis they had not been removed from the proceedings.
The matter again came before me on a procedural hearing on 27 August 2001. The matter was stood over for mention only before me on 4 February 2002. Leave was granted to the parties to restore the matter to the list earlier in the event the Supreme Court proceedings had been determined before 4 February 2002.
On 31 August 2001 the wife’s application for review filed 19 July 2001 of Senior Registrar Gersbach’s orders of 25 June 2001 was listed for mention, and on 7 September 2001, the wife’s application for review was listed by me for hearing before a Judge on 5 October 2001.
On 5 October 2001 Steele J dismissed the wife’s application for review.
On 19 November 2001 the wife filed an application in which she sought an extension of time to review orders made by Registrar Gersbach on 23 August 2001. It appears the wife was seeking to review the orders of 28 August 2001.
On 19 December 2001 Senior Registrar Henderson granted the wife leave to review Senior Registrar Gersbach’s orders out of time and ordered that such review be filed no later than 21 December 2001. The wife filed her application for review on 17 December 2001, which application was listed for hearing on 4 March 2002.
On 22 February 2002 the wife filed an application for leave to extend time to appeal orders made by Steele J on 5 October 2001. On 7 March 2002 Coleman J granted leave to the wife to extend time to appeal Steele J’s orders.
On 27 March 2002 the matter was listed before Chisholm J who made the following orders:
1.That the Form 44 Application filed on 31 August 1999 and the Form 44 Application filed on 17 December 2001 be struck out and removed from the Acting Pending Cases List.
2.That the Applicant, [the wife] have leave to have the proceedings listed before Justice Boland after the completion of the Supreme Court proceedings for the purpose of issuing a trial notice and setting a date for the Pre Trial Conference in relation to the Form 7 Application filed on 6 March 2002.
3.That the Applicant [the wife] serve on the respondents named in the Form 7 Application field [sic] 6 March 2002 a copy of that application and a copy of these orders.
4.I direct the Registry Manager to forward a copy of these orders to the Associate to Justice Palmer in the Supreme Court of New South Wales.
Notation:
5.That the Form 7 Application filed 6 March 2002 is intended to name the 10 respondents identified in it and that the apparent crossing out of the names of the respondents 5, 6, 9 and 10 should be disregarded.
6.That Justice Boland is the Judge who has overall responsibility for this case and where practicable all matter [sic] should be referred to her in the first instance.
The transcript of the hearing before Chisholm J reveals that his Honour took the view that the wife’s application, in which she sought to review the orders made by Judicial Registrar Johnston on 9 August 1999 discharging the respondents referred to in paragraph 37 from the proceedings, was rendered moot by the wife having filed an amended application for property settlement on 2 March 2002 in which she sought different orders against some of the respondents named in the earlier proceedings, but named all previous respondents. Thus the parties to the proceedings remain the wife, husband, Mr P, and the parties named as respondents five to nine.
On 31 March 2003 Mr P, L Pty Ltd and D Pty Ltd filed an application seeking interim orders amending the injunction made on 21 April 1999, the removal of the caveat over the properties, and that the wife be restrained from filing any caveat in respect of those properties.
On 6 April 2003 the wife filed a response seeking dismissal of the application. The application was listed before Judicial Registrar Johnston on 16 April 2003 and adjourned to 13 May 2003. The Court noted orders were sought in terms of a document entitled “Short Minutes of Order” and the matter was adjourned to the Judicial Registrar’s duty list on 27 May 2003.
On 27 May 2003 Mr P and the companies’ application was dismissed.
The matter was listed before me on 30 October 2003 when I made the following orders:
1.That Mr Muir file and serve any Form 8 Application and affidavit in support on which he seeks to rely by 4 pm on 13 November 2003.
2.It is noted that as presently constituted and set out in the formal orders of Chisholm J on 27 March 2002 there are 10 Respondents and the Form 8 Application and affidavit are to be served on all 10 Respondents.
3.That [the wife] file and serve a Form 8A Response and affidavit in support on which she seeks to rely by 12 December 2003 and such Response and affidavit are to be served on all 10 Respondents.
4.I grant leave to all parties to approach the Listing Coordinator to have the Form 8 Application to be filed by Mr Muir set down for hearing in the first short causes list after 12 December 2003.
5.That all parties costs of today are reserved.
6.It is noted that all parties would consent to a judicial settlement conference taking place if available.
On 15 December 2003 the wife filed an application seeking ex-parte orders restraining the trustees of the estate of the late Mrs Shaw (the husband’s mother) in dealing with specified assets of her estate.
On 16 February 2004 Mr P filed an application seeking orders that the injunction be set aside and that he be permitted to sell the properties. On 2 March 2004 the wife filed a response opposing the orders sought by Mr P.
The applications to discharge the injunction made on 21 April 1999 were eventually listed before Rose J on 24 March 2004. His Honour delivered ex tempore reasons that day. At that time, Mr P submitted that he was suffering financial hardship and that the mortgage debt in respect of the mortgage secured over the properties was increasing. Rose J referred to the judgment of Palmer J in the Supreme Court and said, “I was attracted to making the order as sought by the applicant”. His Honour further noted however that the wife gave an undertaking to the Court that she would pay one half of the monthly mortgage payment in respect of the properties in the amount of $930.00 per month. Noting that an appeal to the New South Wales Court of Appeal was listed to be heard in approximately two month’s time, His Honour made the following orders:
1.That upon the Undertaking provided to the Court today by [the wife], the Application of [Mr P] and [L] Pty Ltd filed 16 February 2004 is stood over generally with liberty to restore to the List for hearing upon 7 days written notice being given by that party.
2.That [the wife] pay the applicant’s costs of the Application filed 16 February 2004 as assessed and agreed upon or otherwise as taxed.
On 2 February 2004 Rowlands J made the following orders:
1.The solicitor for the second, third and further respondents be granted leave to file such application as he is minded to within fourteen days of today’s date.
2.The solicitor for the second, third and fourth respondents give the wife 14 days notice of such application or such further notice as the rules for such applications require.
3.The proceedings before the Court today be adjourned to the return date granted for the application made pursuant to Order 1.
4.The solicitor for the second, third and fourth respondents advise the husband in writing as to the outcome of today’s proceedings.
On 22 October 2004 Mr P and L Pty Ltd again filed an application seeking orders that they and D Pty Ltd be discharged as parties to the proceedings, and that the injunction dated 21 April 1999 be discharged.
The wife filed an application on 25 October 2004 seeking, inter alia, production of a number of documents to the Court by the other respondents, and on 11 November 2004, she filed a response to the application of Mr P and the companies opposing the dissolving of the injunction made on 21 April 1999.
On 18 November 2004 all pending applications were listed before me. I made procedural directions consolidating the applications for hearing before a trial Judge.
The wife sought leave to appeal Rose J’s orders of 24 March 2004. Her application was unsuccessful and dismissed by the Full Court on 4 February 2005.
The matter came on for hearing before Rowlands J on 11 March 2005 when his Honour made the following orders:
1.That written submissions with supporting evidentiary material by Mr Muir be filed and served on or before 4^th April 2005.
2.That written submissions in response with supporting evidentiary material by [the wife] be filed and served on or before 28^th April 2005.
3.That written submissions in reply by Mr Muir with supporting evidentiary material be filed and served on or before 9^th May 2005.
4.That the mater be adjourned for a two hour (or less) hearing at 10.00 am on Tuesday 24^th May 2005 to determine what, if any, further oral or written evidentiary material or submissions were required.
As no written submissions with supporting evidence were filed in accordance with his Honour’s directions, the matter was not relisted before his Honour. It appears his Honour considered the application of 22 October 2004 was deemed abandoned.
On 16 August 2005 the wife filed an application in which she sought to join as parties to the proceedings Ms GW and Mr AH. The wife also sought to restrain Ms GW and Mr AH from commencing bankruptcy proceedings against her in the Federal Magistrates Court.
On 29 August 2005 the wife filed a further application seeking orders that the husband pay one half of the monthly mortgage payments in respect of the properties, and sought orders that monthly bank statements be supplied to her.
On 5 September 2005 I made orders dismissing the application filed 16 August 2005 in which the wife sought to join Ms GW and Mr AH and obtain injunctive relief against them. I ordered the wife pay the costs of Ms GW and Mr AH as agreed, and failing agreement within 28 days, as assessed. I also noted that the wife’s application filed 29 August 2005 was withdrawn and dismissed with each party to pay their own costs.
At the time of hearing the wife’s application, Ms GW and Mr AH had caused a Bankruptcy Notice to be issued against the wife and the wife had filed an application to set aside the Bankruptcy Notice in the Federal Magistrates Court.
The wife sought leave to appeal my orders of 5 September 2005. On 3 May 2006 the Full Court dismissed the wife’s application.
On 27 October 2005 to limit costs pending determination of the proceedings in the Supreme Court, the parties, by consent, agreed to the following orders:
1.That the matter [sic] stood over for case management purposes for mention only to 9.30 am on 23 November 2006.
2.Liberty to any party to restore before Justice Boland (or if she is not reasonably available the List Judge) on seven (7) days written notice to the Associate to Justice Boland and to the other parties.
3.That pending further order, the wife; husband; second, third, fourth and tenth respondents shall not file any application in a case until:
a.the matter is first listed before Justice Boland (or if she is not reasonably available the List Judge), and
b.the proposed relief sought is outlined to Justice Boland or the List Judge.
Notwithstanding those orders, and prior to the determination of the proceedings in the Supreme Court, further applications were filed in the matter.
On 22 March 2005 the wife filed an amended application for final orders in the proceedings under s 79. The orders the wife now seeks, by way of final relief, are in the following terms:
1.Lump sum allocation of funds for the monies that I have paid out for [M’s] education. [M] is the 1^st Respondent’s and my daughter. I paid for [M’s] tertiary education at the University …for a period of 5.1/2 years. [M] has obtained a double degree …. The cost to me has been estimated at $50,000.00.
2.Orders are sought for the 1^st Respondent’s superannuation benefits. I be allocated a sum which is half of his superannuation at the current pay out figures.
3.Future spousal maintenance be allocated for review.
4.Once the accounting procedure is finalised in the Equity Division, Supreme Court, Matter No. 1973/01, that the matter be remitted to the Family Court of Australia Pty Ltd [sic], as per Justice Chisholm’s orders of 27.3.02.
5.If the appeal is unsuccessful in the High Court of Australia, concerning the outcome of the Equity Division, Supreme Court, Matter No. 1973/01; then an Application for Order for sale will be submitted by me, the applicant wife, for the two properties, [B1 and B2, NSW].
6.The 2^nd Respondent, Mr [P], pay back the debt of $47,598.00 into the pool of assets of the [Shaw/Samuels] marriage.
7.Monies that the 2^nd, 3^rd and 4^th Respondents, i.e. Mr [P], [L] Pty Ltd and [D] Pty Ltd, received in any form whatsoever, be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
8.That the 1^st Respondent is only paid $20,000.00 from the pool of the [Shaw/Samuels] marital assets as per his written and signed contract agreement in a form of a letter to his solicitor in August 1998.
9.Orders are sought for all the furniture and household goods that I have in my possession.
10.Monies that [Ms E], the 5^th Respondent, received from Mr [Shaw] as a result of the sale of [Z Shaw] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
11.Orders are sought that an amount of $8,000.00 be deducted from the respondent husband’s pool of assets for my benefit. In 1998, Mr [Shaw] said he signed this cheque over to [Ms E] for her baby stuff. I had got this money from selling a market stall that I had owned.
12.Monies that Mr [G], the 6^th Respondent, received from Mr [Shaw] as a result of the sale of [Z Shaw] as an illegal organ donor, for the purchase of the business, [NSC], be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
13.Monies that M/s [S], the 8^th Respondent, received as a result of the sale of [Z Shaw] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
14.Monies that Mr [A], the 7^th Respondent, received as a result of the sale of [Z Shaw] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
15.Monies that Mrs [J], the 9^th Respondent, received as a result of the sale of [Z Shaw] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
16.Monies that Mrs [T], the 10^th Respondent, received from Mr [Shaw] as a result of the sale of [Z Shaw] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
17.Monies that any person, still unknown at the present time, who has received monies as a result of the sale of [Z] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
18.All parties pay for their own costs.

On 4 January 2006 the wife filed an application for interim orders wherein she sought injunctive orders against W Council. W Council had commenced winding-up proceedings against L Pty Ltd for failing to pay council rates in respect of the properties.
On 25 January 2006 I made orders which provided that the husband, Mr P, L Pty Ltd and D Pty Ltd could file any application relevant to outstanding rates, the mortgage secured over the properties, and in respect of the discharge of the injunction made on 21 April 1999.
On 20 February 2006 the wife filed an application in which she sought “[t]hat the Second Respondent be debited the amount of $47,598.00 as monies owing to the Shaw/Samuel family property under Section 79 of the Family Law Act 1975. This amount includes interest calculated from the dates as follows – a) 14.11.97 - $17,598.00; and b) 1.12.97 - $35,000.00.” She also sought orders that the husband pay half of the mortgage payments in respect of the properties and that the husband, Mr P, L Pty Ltd and D Pty Ltd make application to the St George Bank to borrow further funds to pay monies owing to W Council.
On 20 March 2006 the wife filed a further application in which she sought orders that Mr P, L Pty Ltd and D Pty Ltd pay the costs of the solicitor for Warringah Council. The wife had sought orders that I disqualify myself from further hearing matters, but withdrew that application.
On 24 April 2006 the wife filed an application in which she sought to strike out the application filed by Mr P, L Pty Ltd and D Pty Ltd on 22 November 2004.
On 28 April 2006 the application of the wife filed on 20 March 2006 was withdrawn and dismissed.
On 20 December 2006 an urgent application, brought by the wife after Mr P listed the properties for sale, was heard by Rose J who made the following orders:
1.That until further order the second, third and fourth respondents their servants and agents forthwith do all things necessary to cause the cessation of listing for sale of the properties [ B1 and B2].
2.That the second and third respondents by their servants and agents remove the “For Sale” sign outside the properties [B1 and B2] within 24 hours from today.
3.That the application for orders otherwise set forth in the Application in a Case filed 18 September 2006 is dismissed.
4.That the application of the respondents [Mr P,] [L] Pty [Ltd] and [D] Pty Ltd filed 22 October 2004 is dismissed.
On 22 March 2007 I heard the wife’s application filed on 21 February 2007 in which she sought the annulment of her bankruptcy and made the following orders and directions:
1.That the further amended application in a case filed on 21 February 2007, Form 21 Bankruptcy Application dated 21 February 2007 and Form 27 Notice to Creditors of Annulment Application dated 21 February 2007 is withdrawn by the applicant wife.
2.The applicant wife file and serve a Notice of Discontinuance on all parties named as respondents to the applications referred to in order 1 on or before 28 March 2007.
3.That orders 1 to 4 inclusive of the orders made 1 March 2007 are discharged.
4.That the respondents formerly represented by Mr Brian Muir shall file and serve a Notice of Address for Service by 28 March 2007.
5.The matter be listed before Boland J at 10.00 am on 30 November 2007. This date may be vacated on written application to the Associate to Boland J by any party in the event the matter requires an earlier listing.

Is it appropriate the injunction granted by Judicial Registrar Knibbs on 21 April 1999 remain in place pending further order or should it be discharged forthwith

It is useful at the commencement of my discussion of this issue to set out some of the terms of the amended Short Minutes of Order made in the Supreme Court:
1.ORDERS, pursuant to Part 6 Rule 30, the Official Trustee in Bankruptcy be substituted as the Plaintiff in these proceedings.
2.ORDERS that [Ms Samuels] be removed as the Plaintiff in these proceedings.
3.NOTES that [Ms Samuels] remains as Cross Defendant to the Cross-Claim.
4.ORDERS, further to the orders made on 28 June 2004, that there be an enquiry into and taking of accounts between the Plaintiff and the First and Third Defendants as to what amounts have been paid in respect of council rates, water rates and other imposts in respect of properties which are properly to be taken into account in ascertaining the liabilities and entitlements of the parties referred to in paragraph 5(g) of those orders.
5.DECLARES that the Third Defendant holds the properties known as [B1 and B2] (the Properties) being No […] in Folio Identifier […] and No […] in Folio Identifier […] upon trust for the Plaintiff, the First Defendant and itself in the following proportions:
(i)Plaintiff as to 15.2%
(ii)First Defendant as to 15.2%
(iii)Third Defendant 69.6%
…
8.DECLARES the amounts to be allowed by each of the Plaintiff, the First Defendant and the Third Defendant to the co-owners in accordance with these orders is charged upon their respective interests in the Properties.
9.DECLARES each of the Plaintiff, the First Defendant and the Third Defendant liable to contribute for water rates, Council rates in the same proportions as are described in Order 5 hereof, any amount unpaid on account of this ongoing obligation shall be a debt due to the other co-owners, to be charged upon their interest in the properties.
9ANOTES the agreement between the Plaintiff, the First and Third Defendant that any amount payable in respect of land tax be borne in the following proportions:
(i)each is to contribute to any such debt, excluding any amounts charged for late interest and penalties, in the same proportion as are described in order 5 hereof, and
(ii)any amount charged for late interest and penalties to the [sic] borne on as to 15.2% by the First Defendant and 84.8% by the Third Defendant.
9BThe amounts payable by the parties in accordance with the agreement noted in 9A is to be charged to their respective interests in the Properties.
10.DECLARES each of the Plaintiff, the First Defendant and the Third Defendant liable to contribute as and from 16 July 2007 to future repayments of the mortgage debt to St George Bank Ltd on account number […] as well as any future capital improvements on either of the Properties in the same proportions as are described in Order 5 hereof, any amount unpaid on account of this ongoing obligation shall be a debt due to the other co-owners, to be charged upon their interest in the properties.
…
12.ORDERS the Plaintiff to file a Withdrawal of Caveat for Caveat no […] within 7 days, failing which the Registrar of the Equity Division shall be able to sign such Withdrawal of Caveat and deliver it to the Third Defendant for registration.
ON THE CROSS CLAIM
13.DECLARES the Second Cross-Claimant is entitled to possession of the property known as [B2 property] being No […] in Folio Identifier […].
14.GRANTS leave to the Second Cross Claimant [sic] issue a writ for possession of the said property.
15.Upon the giving of the undertaking by the Cross Defendant which is noted in Paragraph 15A hereof and for so long as the Cross Defendant complies with the terms of that undertaking, the writ is to lie in the Registry of the Court until further order of this Court or the discharge of the injunction granted on 21 April 1999 by the Family Court of Australia (‘the injunction”) whichever is the earlier.
15AThe Cross Defendant undertakes to the Court, which undertaking the Court accepts, that for so long as the writ of possession lies in the Registry in accordance with Paragraph 15 hereof, she will make and continue to make the following payments
(i)the sum of $930 per month into the St George Bank mortgage account number […]
(ii)all Council rates levied from 17 July 2007 in respect of the property at [B2] forthwith upon presentation to her by the Cross Claimants of statements of account from the Council, and
(iii)all water rates, electricity rates and gas rates levied on the said property as and when those amounts fall due for payment.
16.DIRECT the parties to the Cross-Claim within 7 days to apply to the Family Court of Australia to relist proceedings SY5191 of 1993, subject to the exigencies of that Court, for the hearing of the injunction discharge application at the earliest possible date, and accepts the undertakings of all those parties to co-operate in order to have that hearing accelerated.
… (original emphasis)
That order was signed by the husband, Mr P in his own capacity and on behalf of SL (“[L Pty Ltd]”) and the solicitor for the trustee, the latter having intervened in the Supreme Court. Exhibit “A” unfortunately only names the plaintiff and first defendant and does not name the parties to the cross claim. It is clear however that the wife is the cross defendant. No transcript of the recent proceedings in the Supreme Court has been made available to me.
The wife’s affidavit material contains a mixture of evidence, much of which is inadmissible, and submissions. At the hearing I indicated rather than deal with formal objections to the affidavits filed, that I would disregard any inadmissible material. I have done so.
The nub of the wife’s submissions as to why the injunction should remain in place is that without such protection Mr P may cause L Pty Ltd to refinance the mortgage or to otherwise deal with the properties contrary to her interests, or in a manner which may prejudice her obtaining her (or her trustee’s) entitlements as defined by the Supreme Court at the conclusion of the accounting proceedings.
The wife seeks orders which are difficult to reconcile. First, she seeks to be authorised to conduct the sale of the properties on behalf of the husband, Mr P and L Pty Ltd. Secondly, she seeks to remain in the B2 property until the completion of the substantive proceedings in this Court. Thirdly, she seeks the deferral of the substantive proceedings until investigations are carried out by the NSW Fraud squad. She further submits if the injunction is discharged she will lose the benefit of occupation of the B2 property.
There is no doubt that the injunction was validly granted pursuant to the terms of s 114 of the Act. I note that it was necessary for the wife to bring the matter back before the Court on 20 December 2006 on an urgent basis when steps had been taken by Mr P on behalf of L Pty Ltd to sell the properties contrary to the terms of the injunction and Rose J made orders that Mr P (and the companies) cease listing the property for sale and remove “For Sale” signs.
There is no admissible expert evidence before me of the current value of the properties, nor is there any evidence before me of the amount secured by the mortgage over the properties. The wife’s written submissions assert a value of approximately $1,400,000.00 for the properties if sold together. Mr P did not dispute the value asserted by the wife.
Mr P’s sworn evidence was that he was not making any payments in respect of the mortgage. The husband also gave evidence that he had not made any payments in respect of the mortgage. I note that pursuant to paragraph 10 of the Short Minutes of Order signed by the husband and counsel for Mr P and SL (L Pty Ltd) in the Supreme Court proceedings that each of the Official Trustee in Bankruptcy, the husband, and L Pty Ltd are liable:
…to contribute as and from 16 July 2007 to future repayments of the mortgage debt to St George Bank Ltd on account number […] as well as any future capital improvements on either of the Properties in the same proportions as are described in Order 5 hereof, any amount unpaid on account of this ongoing obligation shall be a debt due to the other co-owners, to be charged upon their interest in the properties.
Whilst the sworn evidence of the husband and Mr P is that they are not paying mortgage payments (and it appears have no intention of so doing) thus potentially reducing the equity in the properties, the wife’s interest, or that of the trustee, is protected firstly, by paragraph 5 of the Short Minutes of Order and secondly, by reason of the undertaking which became Exhibit “B” before me. That undertaking is one given to the Court by Mr P as the sole director and shareholder of L Pty Ltd and precludes him in that capacity from increasing the mortgage held over the properties or refinancing the mortgage. Further, if he takes steps to have L Pty Ltd sell the properties (of which the company has the majority interest, 69.6 per cent) he is required to give notice to the wife within 21 days of exchange of any contract. Accordingly, the wife and/or the trustee could, if necessary, apply to this Court for orders restraining dispersal of her/the trustee’s entitlements under the Supreme Court orders pending any final s 79 proceedings.
The other, albeit conflicting positions, adopted by the wife also require consideration. Whilst she seeks the immediate sale conducted by her (my emphasis) of the properties, she resists the injunction being lifted on the basis that the sale of the B2 property will leave her without a home. Order 15 of the Short Minutes of Order contemplates that on the lifting of the injunction the writ of possession will no longer lie in the Registry, and if she does not voluntarily leave the B2 property the writ will be executed. It is therefore appropriate in the exercise of my discretion, to consider whether the wife has a proper entitlement to retain exclusive occupation of the B2 property, subject to the terms of her undertaking to the Supreme Court, pending final determination of the proceedings in this Court.
The Supreme Court proceedings have determined the interest of the husband and the wife’s trustee in the properties. The trustee’s interest is a minority interest. That interest will be applied first to satisfy the claims of the wife’s creditors. It is not a direct interest of the wife in the B2 property.
The wife or her trustee may, or may not, when the s 79 proceedings are determined, be entitled to some portion of the husband’s entitlement determined by the Supreme Court in the properties, and perhaps a splitting order in respect of the husband’s superannuation entitlements. However, there is no evidence which satisfies me the wife has a realistic expectation that she will be able to retain property to the value of $700,000.00 being the approximate value of the B2 property, or to purchase the interest of the husband, Mr P, L Pty Ltd or D Pty Ltd in that property. Her income is derived from Social Security benefits. Whilst she asserts she is able to derive an income from boarders without affecting her Social Security entitlements there is no admissible evidence before me that supports such an assertion. It appears to me an income would potentially affect Social Security benefits but there is insufficient evidence for me to make findings on this matter. She does not seek the transfer of the B2 property to her by way of final orders.
In short, she has no claim to solely retain the B2 property and/or the properties by way of final order. It is not Mr P’s and/or L Pty Ltd’s responsibility to maintain the wife. None of the usual criteria relevant to support an application for exclusive occupation pending determination of s 79 proceedings are present in this case. It is inevitable, as recognised by the wife herself, that she will need to vacate the property and move to reside with her sister or elsewhere in rented accommodation. It follows I am satisfied the injunction should be dissolved.

Should orders be made in this Court for the sale of the B1 and B2 properties pending determination of final proceedings under s 79 of the Act

There is no doubt that this Court has the power, in an appropriate case, in proceedings under s 79 to make an order by way of interim or partial property settlement between the parties to a marriage (see Harris & Harris (1993) FLC 92-378). But here the wife seeks orders for the sale of properties which involve the rights and interests of third parties.
When the wife commenced proceedings in this Court in 1998 and joined as parties Mr P, L Pty Ltd, and D Pty Ltd the jurisdictional basis on which the claims could be maintained was the accrued jurisdiction of the Court. That this Court has such jurisdiction is not in doubt (see A.S.I.C. v Edensor Nominees Pty Ltd (2001) 204 CLR 559). The wife’s application was filed prior to the decision of the High Court in ReWakim; Ex Parte McNally & Anor (1999) 198 CLR 155.
However after filing her applications, perhaps because of the decision in Wakim, the wife commenced proceedings in the Equity Division of the Supreme Court, and sought that that Court deal with equitable claims between herself, many of the respondents in these proceedings, as well the solicitor who acted on the conveyance of the properties. Thus she no longer sought to invoke the accrued jurisdiction to hear claims against Mr P, L Pty Ltd and D Pty Ltd as part of a single justiciable controversy of the claims between herself and the husband.
In her amended application for final orders filed 22 March 2005 (in fact, further amended application for final orders), the wife seeks amongst other orders:
…
4.Once the accounting procedure is finalised in the Equity Division, Supreme Court, Matter No. 1973/01, that the matter be remitted to the Family Court of Australia Pty Ltd [sic], as per Justice Chisholm’s orders of 27.3.02.
5.If the appeal is unsuccessful in the High Court of Australia, concerning the outcome of the Equity Division, Supreme Court, Matter No. 1973/01; then an Application for Order for sale will be submitted by me, the applicant wife, for the two properties, [B1 and B2].
6.The 2^nd Respondent, Mr [P], pay back the debt of $47,598.00 into the pool of assets of the [Shaw/Samuels] marriage.
7.Monies that the 2^nd, 3^rd and 4^th Respondents, i.e. Mr [P], [L] Pty Ltd and [D] Pty Ltd, received in any form whatsoever, be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
…
Subject to my consideration of the wife’s claim for $47,598.00 (also asserted by the wife to be a claim for $55,000.00), which I discuss below, it appears to me that all of the wife’s claims against Mr P and the companies controlled by him are the subject of the proceedings in the Supreme Court, and the only basis upon which Mr P, L Pty Ltd and D Pty Ltd remain in the proceedings in this Court is so that the husband and wife can enforce their equitable entitlements against Mr P, L Pty Ltd and D Pty Ltd, and not so that their respective interests can be determined under s 79 of the Act.
The finalisation of the proceedings in this Court are likely to be facilitated if one of the parties in the Supreme Court litigation applies to that Court for orders:
·That Mr P in his capacity as sole director of L Pty Ltd pay to the husband and the trustee a sum equal to their entitlements as set out in the Short Minutes of Order (this would require agreement as to the value of the properties or appointment of a valuer to value them) OR
·That trustees for sale be appointed pursuant to relevant statutory power to sell the properties and on completion of sale pay out the proceeds in accordance with entitlements defined in the Short Minutes of Order.
I discern that the latter course is likely to be the most efficient way of concluding litigation in both the Supreme Court and this Court which Palmer J aptly described as a “tragic case for all who have been involved in it”.
If the latter course were adopted, then Mr P, L Pty Ltd and D Pty Ltd could be removed from the proceedings. I am hampered in my consideration of this issue by lack of evidence of what applications, if any, are currently before the Supreme Court, and what, if anything, remains to be determined other than the execution of the writ.

As a pre-requisite to determining whether an interim or partial property order should be made, I consider then whether there is any jurisdiction in this Court to deal with any claim by the wife against Mr P, L Pty Ltd and D Pty Ltd in determining an application under s 79 of the Act. I am satisfied the only potential jurisdiction for a claim by the wife against Mr. P, L Pty Ltd and D Pty Ltd in this Court is under Part VIIIAA of the Act (s 90AE(2)(a)) which Part was introduced to the Act in 2003. Section 90AE(2)(a) would only be available if a trial Judge found the conditions in s 90AE(3) satisfied. A trial Judge could, subject to my comments above, make orders for the sale of the B2 property and/or the properties as necessary to effect a cash adjustment of property between the husband and wife under s 79 and Mr P, L Pty Ltd and D Pty Ltd as third parties.
In Harris & Harris (1993) FLC 92-378 the Full Court (Nicholson CJ, Fogarty and Moore JJ) discussed the power to make an interim or partial property order under s 79 and the circumstances in which such a power should be exercised. The Full Court found that the Court had power to make such an order but in exercising the power noted the following matters needed to be considered:-
(1) The exercise of the power should be confined to cases where the circumstances presented at that time are compelling. As a generality, the interests of the parties and the Court are better served by there being one final hearing of s. 79 proceedings. However, circumstances may arise before there can be a final hearing which dictate that some part of the property of the parties should be the subject of orders. A common example is where both parties agree to the disposal of some assets pending the trial. However, we do not consider that it is confined to cases where the parties consent. Urgent situations may arise where it is necessary to exercise this power if injustice is to be avoided. Examples include cases where it is necessary to do so to avoid an asset being eroded or lost in the intervening period, and cases (beyond the maintenance power) where an order in favour of one party is necessary to preserve or obtain a home for or is otherwise necessary for the welfare of the children.
As to the position in England under the Matrimonial Causes Act 1973 in relation to an interim property order in opposed proceedings and as to the matters to be taken into consideration in the exercise of that discretion including the ''overriding grounds of individual or family welfare'' -- see the discussion in Barry v Barry [1992] 3 All E.R. 405.
(2) It is an exercise of the s. 79 power. Consequently it must be performed within those parameters. Since it is not the final hearing the Judge is unlikely to have the final findings, but the exercise must fall within that general framework and the material available at that time.
(3) Of necessity it is likely to be a somewhat imprecise exercise. Consequently, it must be exercised conservatively and the Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing, or that the order which is contemplated is capable of being reversed or adjusted if it is subsequently considered necessary to do so. It is for this reason that we doubt whether the distinction which Nygh J drew between interim and partial orders is necessary or desirable.
I am not satisfied in this case, criteria of the type referred to in Harris have been established. However, in case I am incorrect in my assessment, I will consider the wife’s application that she have the conduct of the sale.

Whether the wife should have the care and conduct of the sale of the properties

If such an order was made the wife would, in effect, be acting as a trustee for sale of the interests of the trustee, the husband, Mr P, and L Pty Ltd.
It may well be prudent in the event that the husband and Mr. P do not make mortgage payments that the properties should be marketed in a timely manner to prevent any possibility of a mortgagee sale or the eroding of the equity in the properties. However, at the present time there is insufficient evidence before me which would support an order for immediate sale of one or both properties.
Further, and of more relevance to this application, is the suitability of the wife to have the authority to conduct the sale. Mr Miles, in his assistance to the Court drew my attention to the decision of the High Court in Miller v Cameron & Ors (1936) 54 CLR 572 at 575. At 575 Latham CJ said:
“A trustee who becomes bankrupt is removed almost as of course (Bainbrigge v. Blair). There may be exceptions under special circumstances to this rule, but the rule is generally applied (In re Barker’s Trusts). If the bankruptcy is explained by financial misfortune without moral fault and the trustee has recovered from pecuniary distress he may be allowed to retain his office (In re Adams’ Trust).” [footnotes omitted].
I was also referred to Chambers v Jones [1902] 2 SR NSW 177 at 182.
In addition to these authorities, it is relevant to consider the principles applicable for the appointment of a trustee for sale under the provisions of s 66G of the Conveyancing Act1919 (NSW). In Johnstone v Johnstone [1902] SR NSW 90 Walker J dealt with an application where a beneficiary sought to act as a trustee for sale. On appeal from the Master, who refused to appoint such a person, Walker J noted the inappropriateness of the appointment of a beneficiary noting “[t]he court is very loath to appoint as trustee anyone who has a beneficial interest in the estate”. More recently in Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSW Supreme Court 341 Young CJ in Equity discussed the factors to be considered when appointing trustees for sale as follows:
(1)the principle that the court tends to prefer the preference of the person with the greater interest in the land. That factor in the present case does not get us anywhere because it is hard to see who really does have the greater interest;
(2)the trustees should be independent and as free from conflict of interests as possible. I will come back to that;
(3)the trustees, particularly where they have more active duties than merely to sell a piece of real estate, should have the appropriate skill, expertise and experience; and
(4)the court should endeavour to get the best value for the parties’ money and see that as between two equally alternative proposals the cheaper is preferred.
In this case Exhibit “A” discloses, after taking into account the adjustments to be made between the parties, that the major interest in the properties remain that of L Pty Ltd. I have noted earlier in these reasons there is no dispute that L Pty Ltd is wholly owned by Mr P.
There has been an extensive history of litigation in this Court and in the Supreme Court between the wife and Mr P. Any appointment of the wife to sell the properties is likely to raise further issues of conflict in relation to the manner of marketing the properties, instructions given to the conveyancing solicitor, fixing of a reserve price, the extent and cost of advertising prior to an auction and negotiations with any unsuccessful bidders at an auction.
In summary, I am satisfied it would be inappropriate to make an order providing for the wife to have carriage of the conduct of the sale of the properties for the following reasons:
·the immediate necessity to sell one or both properties has not been established, although it appears likely that the properties will need to be realised to effect the adjustments provided in the Short Minutes of Order made by the Supreme Court on 17 July 2007;
·the wife is an undischarged bankrupt;
·the wife potentially has an interest as a beneficiary in the proceeds of sale, but regard must be had to the creditors in the bankruptcy;
·the majority of the interest in the properties is that of L Pty Ltd;
·there is a high level of conflict between the wife and Mr P.

Is it appropriate to make an order discharging respondents to the proceedings, other than on the application of the particular respondent and/or discharge Mr P, L Pty Ltd and D Pty Ltd as respondents to the proceedings

An examination of the transcript of the proceedings for Chisholm J referred to by me in paragraph 77 above, makes it clear that although the review application in which orders were made dismissing the then named respondents, that review application became apparently moot by reason of the wife’s further application against the earlier respondents in which she sought different relief against some respondents.
In the many procedural directions before me no appearance has been made by any respondent other than the husband, Mr P, L Pty Ltd and D Pty Ltd. None of the other respondents have made application to the Court to be removed from the proceedings since 1999. They have been served with all current applications.
For convenience, I repeat the orders sought against those respondents by the wife in her application filed 22 March 2005 are as follows:
…
10.Monies that [Ms E], the 5^th Respondent, received from Mr [Shaw] as a result of the sale of [Z Shaw] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
…
12.Monies that Mr [G], the 6^th Respondent, received from Mr [Shaw] as a result of the sale of [Z Shaw] as an illegal organ donor, for the purchase of the business, [NSC], be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
13.Monies that [Ms S] the 8^th Respondent, received as a result of the sale of [Z Shaw] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
14.Monies that Mr [A], the 7^th Respondent, received as a result of the sale of [Z Shaw] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
15.Monies that [Ms J], the 9^th Respondent, received as a result of the sale of [Z Shaw] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
16.Monies that [Ms T], the 10^th Respondent, received from Mr [Shaw] as a result of the sale of [Z Shaw] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
17.Monies that any person, still unknown at the present time, who has received monies as a result of the sale of [Z Shaw] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Samuels] marriage.
…
Mr P, on behalf of L Pty Ltd, seeks that all parties to the proceedings, other than the husband, be discharged as parties to the proceedings.
Rule 6.02(1) provides:
(1) A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.
Example
If a party seeks an order of a kind mentioned in section 90AE or 90AF of the Act, a third party who will be bound by the order must be joined as a respondent to the case.
…
Rule 6.03 provides that:
(1) A party may include another person as a respondent by naming the person in the application.
(2) A party may add another party after a case has started by:
(a) amending the application or response, as the case may be, to add the name of the person; and
(b) by serving on the new party a copy of the application or response, and any other relevant document filed in the case.
Note 1    For amendment of an application, see Division 11.2.2.
Note 2    If a Form is amended after the first court date, the Registry Manager will set a date for a further procedural hearing (see subrule 11.10 (3)).
Note 3 A reference to "application" includes a reference to "cross-application (see the dictionary).
Rule 6.04 provides that:
A party may apply to be removed as a party to a case.
Note Rule 5.01 sets out the procedure for making an Application in a Case.
The Rules also contain provisions for the continuation of a case after the bankruptcy of a party. Those rules are not relevant in this case as the trustee, after notice, has declined to participate in these proceedings.
Part 1.2 of the Rules sets out the main purpose of the Rules and r 1.9 and r 1.10 provide:
Rule 1.09
If the court is satisfied that:
(a) a legislative provision does not provide a practice or procedure; or
(b) a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;
it may make such orders as it considers necessary.
Rule 1.10 (1)
(1) Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules.
…
In order to consider whether Mr P should be discharged as a party from these proceedings it is necessary to further consider the relief sought by the wife against him, and the jurisdiction of the Court to make orders affecting Mr P. I have already noted my view that the equitable claims do not require determination as part of the s 79 proceedings, those claims being determined by the Supreme Court.
I deal firstly with the wife’s claim about the sum of $55,000.00. The wife relies on paragraphs 30 to 44 of her affidavit filed in Court on 26 July 2007. The gravamen of the wife’s complaint appears to be that on settlement the sum to be paid the vendor, Mr K, was $265,583.70 and the amount received by him on settlement was $55,000.00 less than that sum. Prima facie, it appears this is a matter which could or should have been, and likely was, determined by the Supreme Court in the taking of accounts between the parties. If that issue has been determined it would appear the matter is res judicata and cannot be litigated in this Court. In the alternate, if the wife could have raised this as an issue in the Supreme Court, but failed to do so, on the principles of anshun estoppel the wife is now precluded from bringing such a claim in this Court (see Port of Melbourne Authority v Anshun (1981) 147 CLR 589).
I have, in my discussion of a partial property settlement order, discussed the third party provisions of the Act. I have noted that Division 2 of Part VIII of the Act has potential relevance. Section 90AE(2) provides that a court may, in proceedings under s 79, make an order that directs a third party to do a thing in relation to the property of a party to the marriage, or alters the rights, liabilities of property interests of a third party in relation to the marriage.
I am satisfied that until the sums due to the husband and the trustee following the taking of accounts in the Supreme Court are actually paid to them, which appears likely to necessitate the sale of the properties, it would be premature to remove Mr P and the companies as parties to these proceedings. I further consider that I have taken into account the enforceability of the undertaking given by Mr P to the Court in the exercise of my discretion to dissolve the inunction granted on 21 April 1999.
I turn then to the question of the other respondents remaining as parties. The wife’s affidavit material filed in support of this application does not support the orders sought in her final application against the fifth to ninth respondents. She has not yet been required to file her affidavit evidence in chief to support her present claims. It is difficult to see any connection between the orders sought by the wife against the fifth to ninth respondents and the determination of a claim under s 79. To date the wife has not established that the fifth to ninth respondents, or any of them, are creditors of the husband and wife.
When the wife files her affidavit material for the final hearing it will be clear the basis on which she asserts this Court has jurisdiction to hear and determine claims between herself and the husband and the fifth to ninth respondents. The present orders sought do not suggest a single justiciable controversy which requires determination (see Warby v Warby (2002) FLC 93-091).
If the wife’s affidavit material discloses no jurisdiction in the Court then I am satisfied that the applications against the fifth to ninth respondents should be dismissed, either on their application, or by the Court itself in its implied power to control its own processes.

Should the whole of the proceedings be transferred to the Supreme Court pursuant to the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)

It has been the common understanding of the parties that on completion of the proceedings in Equity Division of the Supreme Court that the wife’s application for final orders for property settlement and spousal maintenance should be listed in this Court for hearing.
Mr P seeks the transfer of the proceedings in this Court to the Supreme Court. I decline to make such an order on a number of bases. First, proceedings under s 79 are proceedings regularly dealt with in this Court and subject of considerable experience by trial Judges who are appointed to this Court by “reason of their training, experience and personality …….to deal with matters of family law” (s 22(2)). Secondly, the wife is not only seeking property orders dealing with physical property, she also seeks splitting orders, under Part VIIIB of the Act, of the husband’s superannuation interests. This Court, through its rules and superannuation information form approved by the Principal Registrar, is in a unique position to have before it all the relevant information concerning the husband’s superannuation interests, and to make appropriate flagging or splitting orders. Finally, the wife seeks spousal maintenance, again an application regularly dealt with in this Court and generally not the subject of proceedings in the Supreme Court even under the Property Relationships Act1984 (NSW) where different criteria for the awarding of spousal maintenance are relevant to those applicable under the Act.

What steps can be taken to conclude this litigation

There has been a significant time elapse since the commencement of the proceedings with the result that this case has been awaiting a final hearing for many years. Multiple affidavits have been filed by all parties. Whilst I am loath to incur the parties in additional costs, it appears to me sensible that the parties should file one final consolidated affidavit of evidence in chief in accordance with the Rules and an updated financial statement, including full and complete disclosure of superannuation entitlements in the case of the husband and wife. Both the husband and wife should set out in full their day to day income and living expenses in view of the wife’s spousal maintenance claim as it appears she intends to pursue that claim.
The parties’ costs at the final hearing will be minimised if the properties have been sold and the adjustments as determined pursuant to the orders of the Supreme Court actually paid. Absent such payment or prior sale of the properties, it will be necessary for a single expert to be appointed to value the properties and based on that single expert’s report, the husband and the trustee’s entitlements ascertained. It may be necessary to address the question of trustees for sale of the properties under s 80(i)(c) of the Act.
I do not find it is appropriate to make directions for the filing of final material and/or the appointment of a single real estate expert until I am satisfied the Supreme Court proceedings have been finalised.

Should the final hearing be deferred pending the “Fraud” and “Domestic Violence” matters referred to by the wife

In the wife’s affidavit filed in Court on 26 July 2007 she deposes to a complaint to the New South Wales Police Fraud Squad. She has attached to her affidavit a statement made by her on 13 July 2007. That statement raises identical issues to the claims litigated and determined in the Supreme Court.

Given the history of this matter, I am not satisfied it would be appropriate to delay the s 79 proceedings for any police investigation. The wife would have remedies under the Act if the police established fraud perpetrated by any respondent. It would be open to the wife, after final property orders, to pursue claims under s 79A if fraud was established.
There is no evidence in the wife’s affidavit material in relation to her asserted domestic violence claim which would support the further delay of these proceedings.

Conclusions

For the reasons set out above, I am satisfied, in light of the undertaking by Mr P, that no prejudice will be caused to the wife by the injunction granted by Judicial Registrar Knibbs on 21 April 1999 being discharged. Whilst the sale of the properties appears inevitable, I am not satisfied that it is appropriate that the wife have the care and conduct of the sale of such properties on behalf of the husband Mr. P and L Pty Ltd. Unfortunately, until the proceedings in the Supreme Court are concluded it is premature to determine whether Mr P, L Pty Ltd and D Pty Ltd can be removed from the proceedings, or to set this matter down for a final hearing.
I am satisfied once the wife’s consolidated final affidavit of evidence in chief is filed, it would be appropriate to have determined as a preliminary issue whether or not the claims against the fifth to ninth respondents are justiciable in this Court.
It is not appropriate that final directions be made at this stage for the filing of consolidated affidavits of evidence in chief and updated financial statements, including superannuation interests. Such directions will be made by me immediately the Supreme Court proceedings are finalised and the matter will then be allocated the first available hearing date.
However, as the husband is required to make a full and frank disclosure of his financial position to the wife, and such obligation is ongoing throughout the proceedings, and because the wife seeks a superannuation splitting order, the husband will be required to provide details of his present superannuation entitlements. The wife can then obtain herself from the husband’s trustee the prescribed information set out in the form approved by the Principal Registrar.
If the matter can be listed for final hearing before the end of this year it is unlikely there will be any substantial variation in the husband’s entitlements requiring updating.
The long-running emotionally distressing and expensive litigation in this Court should be determined as soon as possible. The matter has been allocated a mention date before me on 30 November 2007 or at such earlier time the parties re-list the matter if the Supreme Court proceedings are earlier determined.

Costs

I am satisfied the costs of the present applications should be reserved, and be determined by the trial Judge at the final hearing.

I certify that the preceding one hundred and sixty nine (169) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland

Associate:

Date: 17 August 2007

[2007] FamCA 833

17 August 2007

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Injunction

Jurisdiction

Remedies