STEPHANOPOULOS & STEPHANOPOULOS

[2017] FamCA 525

FAMILY COURT OF AUSTRALIA

STEPHANOPOULOS & STEPHANOPOULOS [2017] FamCA 525

FAMILY LAW – PROPERTY – Further interim property application – Consideration of applicable principles – Consideration of assets and liabilities of the parties – Consideration of contribution issues – Where appropriate to make order sought – Where alternative application for spouse maintenance – Where such application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Where application for injunction restraining wife from continuing proceedings in Supreme Court of NSW – Where such application made notwithstanding ongoing proceedings in this Court – Where unnecessary to determine application by reason of other orders made – Where application dismissed.

Family Law Act 1975 (Cth) ss 79, 79(4), 114(1), 114(3)
Conveyancing Act 1919 (NSW) s 66G

Harris & Harris (1993) FLC 92-378
Stanford v Stanford (2012) 247 CLR 108
Strahan & Strahan [2009] FamCAFC 166

APPLICANT: Ms Stephanopoulos

RESPONDENT: Mr Stephanopoulos

FILE NUMBER: PAC 3077 of 2015

DATE DELIVERED: 21 July 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 June 2017 and 17 July 2107

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT:	Somerville Legal
COUNSEL FOR THE RESPONDENT:	Mr Lethbridge SC with Mr Maurice

SOLICITOR FOR THE RESPONDENT: Self-represented

Orders

1. That within 14 days from this date the wife transfer and assign to the husband all her right title and interest in the “Stephanopoulos Partnership” and do all acts and things necessary to sign all documents reasonably required of her by the husband to effect such transfer and assignment.

2. That upon the wife complying with the previous order the husband shall indemnify and save harmless the wife from all or any liability arising from the business and trading affairs of the said partnership including any liability to the Australian Taxation Office howsoever arising as and from the date of the transfer.

3. That within 14 days from this date the wife transfer to the husband all her right title and interest in the real estate properties situated at 1 K Street, Suburb L and 2 K Street, Suburb L and do all acts and things necessary and sign all documents reasonably required of her by the husband to effect such transfer including the refinancing of the said properties.

4. That within 14 days from this date the husband and wife do all necessary things and sign all necessary documents so as to procure a payment to the wife of $400,000.00 from funds presently held in a controlled monies account by the husband’s solicitor in trust of the parties with the characterisation of such payment to be reserved to final hearing.

5. Otherwise, all interim applications before the Court are dismissed save for the issues noted below.

6. It is noted that there remain outstanding issues as to the single expert real estate valuer appointed by the parties, the costs of that expert and the question as to whether the wife should be granted leave to adduce adversarial expert valuation evidence.

7. That the parties have leave to relist the proceedings as to the issues noted above on 14 days’ notice to the other party and to the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stephanopoulos & Stepanopoulos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3077  of 2015

Ms Stephanopoulos

Applicant

And

Mr Stephanopoulos

Respondent

REASONS FOR JUDGMENT 

1. The application for determination is the wife’s Application in a Case filed 18 April 2017 seeking orders for interim costs, property distribution in the sum of $200,000.00 (amended to $400,000.00 at hearing: Exh “A”) and lump sum spouse maintenance of $72,072.00  and in the alternative spousal maintenance by way of periodic payments of $1,386.00 per week.

2. That application was subsequently amended seeking additional orders as to leave to adduce adversarial expert evidence as to the value of certain properties in which the parties have interests.

3. The expert evidence issue was stood over pending a conference between the Single Expert and the wife’s shadow expert.

4. In response to the wife’s Application in a Case, the husband relevantly sought in his Response orders that, in summary, provided for the wife to execute  certain tenancy and mortgage documents in relation to commercial properties at Suburb L owned in partnership with third parties by the husband and wife and in default the Registrar of this Court be appointed to do so.

5. Otherwise, it was contended during submissions that the wife could be required to transfer to the husband her interest in the partnership business and its underlying real estate assets.

6. The wife relied on:

   a)Her affidavit filed 18 May 2017 as to part thereof (see Exh “A”);

   b)Her affidavit filed 15 June 2017;

   c)Her Financial Statement filed 26 April 2017.

7. The husband relied on:

   a)His affidavit filed 19 May 2017;

   b)His affidavit filed 1 June 2017;

   c)His Financial Statement filed 21 April 2017.

8. The parties were married in 2004 after a period of cohabitation from about 2002 and separated under the one roof in February 2014.

9. Final physical separation was in December 2014.

10. The matrimonial home of the parties was situated at Suburb D. It is now occupied by the husband.

11. The parties jointly own a second property “Property E” at F Town in the M Town area just out of Sydney.

12. During the period of separation under the one roof the mother and father spent one night a week at Property E and some weekends together with the children at Property E.

13. Subsequently, the father asserts that it was resolved that he and the mother should live separately. The mother asserts that the father refused to move out of the matrimonial home and she had no alternative but to move out with the children to Property E.

14. Subsequent to the final separation in December 2014, the children spent time with the father in the matrimonial home and continued to attend school nearby.

15. The father, who was in full-time employment, was assisted in the care of the children by his parents, his brother and sister-in-law as needed. On occasions the mother attended at the home to assist the father, attending at the home on a regular basis and otherwise attending to the children’s needs and education on days the children were ostensibly in the father’s care.

16. Her attendances at the matrimonial home ended in early May 2015 when the father prevented her attendances at the home by changing the locks. The mother asserts that it was this incident that led to her relocating her residence to Suburb G in Sydney. The mother’s residence at Suburb G is only a short distance from the matrimonial home at Suburb D and the children’s school.

17. The mother’s rented Suburb G property comprises a three-bedroom duplex at which the children each have their own bedroom. The house is in a quiet cul-de-sac and opposite the park that has sporting facilities. The property is three minutes’ drive from the children’s present school. On most weekends the mother takes the children to Property E.

18. Interim parenting orders were made on  11 February 2016 and provided:

    (1)That the mother and the father have equal shared parental responsibility for the children B born in 2004 and C born in 2007.

    (2)That the children live with the mother.

    (3)That the children spend time with the father as agreed between the mother and father in writing with such writing to include SMS and email communication and in default of agreement as follows:

    (a)During school term each alternate weekend from after school Thursday to before school Monday commencing on the second weekend after the date of these orders for the current school term and thereafter commencing on the second weekend after the resumption of each school term;

    (b)During school term each alternate week from after school Thursday to before school Friday commencing on the first Thursday after the date of these orders for the current school term and thereafter commencing on the first Thursday after the resumption of school term;

    (c)For one half of the children’s end of term school holidays being the first half of each school holiday period commencing on the first day of such holiday period at 9.00 am and concluding on the midpoint Saturday of such holiday period at 5.00 pm.

    (4)That the mother and father are at liberty to attend on occasions significant to the welfare of the children being occasions relating to education, religious education, sport, extracurricular activities and other occasions significant to the welfare of the children being occasions where the attendance of either or both parents is to be reasonably expected.

    (5)That the mother and father do all things reasonably necessary when the children are living with or spending time with each of them to facilitate the children having telephone contact with the other parent on not less than each alternate day during such period and to facilitate such time ensure that the other parent is informed of a mobile or landline telephone number on which the children may be contacted and that such mobile or landline telephone number is reasonably available to the children to answer the other parent’s phone call which shall absent agreement be between 6.00 pm and 7.00 pm in the evening on such days.

19. The property pool of the parties is significant being on the husband’s case over $9 million and on the wife’s case over $11 million.  The asset pool is comprised as discussed below.

20. The parties’ interest in various real estate properties has been valued by the  Single Expert as follows:

    a)N Street, Suburb D   $2,000,000.00

    b)K Street, Suburb L   $5,390,000.00

    c)O Street, Suburb P       $3,050,000.00

21. However, the K Street commercial properties are encumbered and are the subject of partnership interests with third parties. The parties’ partnership interest has been valued by the Single Expert accountant in total at about $900,000.00.

22. The wife seeks by way of final property orders that Property E property valued at about $1.9 million and contents and related equipment be transferred to her unencumbered and that the husband pay to her $4,000,000.00.

23. The husband seeks by way of final property orders that the wife retain the parties’ Property E and a cash payment to the wife of $500,000.00.

Context

1. At the  commencement of the parties’ relationship the wife asserts that she had the following assets:

   a)A real estate property Q Street, Suburb R that was tenanted and was purchased by her in 1997 for $230,000.00 and subject to an outstanding mortgage of about $60,000.00;

   b)Savings of about $7,000.00;

   c)A motor vehicle purchased by her in April 2002 for $14,000.00;

   d)Accumulated superannuation of about $16,000.00.

2. The husband asserts he had the following assets at the commencement of their relationship:

   a)A 50 per cent interest with his brother in a property at S Street, Suburb T purchased in June 2004 $342,000.00 with the property still being retained by the husband and having an agreed value of $1.5 million. The property is tenanted. The husband’s interest in this partnership has now been valued at $634,232.00: Exh “C”.

   b)A 50 per cent interest with his brother in the property at O Street, Suburb V purchased in July 1994 for $250,000.00 and subsequently improved. This property was sold in May 2015 with net proceeds of sale of $2,478,039.00. The husband asserts that he applied his half share of those funds as follows:

   i)In discharge of the mortgage secured over Property E $361,705.00;

   ii)Payment of $100,000.00 to his solicitor’s trust account;

   iii)Repayment of $100,000.00 allegedly advanced to him by his mother;

   iv)Repayment of credit card debt $10,207.00;

   v)Capital gains tax liability of $177,000.00;

   vi)Repayment of a partnership loan of $275,000.00 on 18 March 2016 more than 12 months later.

   c)Business operated by him through the company I Pty Ltd with his brother. The husband’s interest has now been valued at $1.995 million: Exh “C”.

   d)The company also owned the real estate property at W Street, Suburb V purchased in 1993 for $240,000.00. This property was ultimately sold in June 2015 with proceeds of sale of $509,937.00 received by the company in October 2013.

   e)Property at N Street, Suburb D purchased by the husband in May 2000 for $625,000.00, with the property still retained by the husband with this property being valued by the single expert at $2 million.

   f)A 50 per cent interest in X Street, Suburb Y purchased in 2001 for $632,000.00. This property was sold in about 2003 for $1.21 million with the proceeds of sale being applied to the purchase of the O Street properties.

3. At the commencement of the relationship the wife asserts she was in full-time employment as a manager earning about $30,000.00 per annum plus commissions. The husband, she says, was working for the business I Pty Ltd earning about $40,000.00 per annum.

4. The parties’ cohabitation was for a period of about 12 years and produced two children now aged 12 and 10.

5. The wife asserts that during cohabitation the husband worked long hours, often on weekends in the business leaving her to care for the children for whom she asserts she was the primary caregiver. Otherwise, the wife contends that throughout the relationship she was the primary homemaker.

6. The wife was in employment at various times during the relationship, in particular in the latter years of the relationship she received income from the husband’s business. The husband was in effect self-employed through his company throughout the relationship.

7. In about September 2003 the husband and his brother purchased a property at 1 O Street, Suburb P for $2.7 million and subsequently the husband and his brother acquired the property at 2 O Street, Suburb P in 2004 for $1.94 million.

8. The property at 1 O Street was subsequently improved so that the premises could be used for business operations.

9. In March 2007 the wife sold her property at Suburb R for $337,000.00. After discharge of the small remaining mortgage the wife asserts that she received net about $320,000.00 that she invested in a cash management account with the CBA Bank. The husband provided to her at that time about $80,000.00 from savings so the opening balance in the investment account was about $400,000.00. The investment account continued to accumulate interest and by June 2011 had increased to $680,000.00.

Property E

1. In April 2011 the parties jointly purchased Property E for $1.49 million. The purchase price comprised $680,000.00 from the CBA investment account, $220,342.00  that the husband asserts were “my personal funds” and $261,000.00 withdrawn by him from the company I Pty Ltd and a mortgage advance of $400,000.00 from the Bendigo Bank.

2. The husband asserts that a further $100,000.00 was provided at the time of purchase by his mother.

3. Subsequently in June 2011 following the husband selling the property at O Street, Suburb V the mortgage secured against Property E property was all but discharged.

4. The property has an agreed value of $1.95 million.

1 K Street, Suburb L

1. In late 2013 the parties purchased a commercial property at 1 K Street, Suburb L in partnership with the husband’s brother and his wife. The property was purchased for $2.15 million plus purchase costs with a commercial mortgage advance of $1.935 million with the parties holding a 50 per cent partnership interest in the property. The husband asserts that $80,000.00 was provided by the partnership conducted by him and his brother, $35,000.00 drawn from I Pty Ltd and $145,000.00 provided by the husband’s brother and his wife.

2. The property is presently subject to a mortgage encumbrance of $1.935 million and is commercially tenanted.  The existing commercial loan secured against the property expired in mid-November 2016 and currently due to an impasse between the wife and the other members of the partnership the loan is currently accumulating additional interest penalties due to the failure to renegotiate the loan. The wife asserts that she does not wish to have ongoing financial relations with the husband or the other members of the partnership in relation to this property. Notwithstanding the primary orders sought by her as to the property seeking to transfer her interest in the property to her husband, she now contends that she wishes to sell the property. The husband for his part seeks to acquire the wife’s interest in the partnership and hence the property.

3. The wife makes various complaints about the ongoing tenancy arrangements in relation to the property and the husband’s lack of disclosure in relation to the current tenancy arrangements. The husband rejects those complaints.

2 K Street, Suburb L

1. In March 2015 the K Street partnership purchased a second property at 2 K Street. This property adjoins the other partnership properties. The property was purchased for $2.1 million plus purchase costs with the purchase price comprising a commercial mortgage advance of $1.7625 million. The husband asserts that a further $333,510.00 was provided through I Pty Ltd.

2. The property is currently subject to a commercial loan facility of $1.762 million. The property is commercially tenanted.

3. It appears that contracts for the purchase of this K Street property were exchanged in August 2014 but completion of the sale was not effected until after the parties had physically separated. The wife asserts that she was pressured by the husband into signing the commercial loan facility so that the purchase could be completed.

4. The wife wishes to do divest herself of her interest in the property and seeks to transfer her interest in the property and thus her interest in the partnership to the husband.

Sale of 1 O Street

1. This property was sold in early 2015, some months after final separation. The property was sold for $4.05 million.

2. The husband’s 50 per cent interest in those sale funds were the subject of interim orders made 14 September 2015 that provided in summary:

   a)That by way of interim property settlement the husband and wife each receive $350,000.00.

   b)That the wife receive a further sum of $52,000.00 by way of spousal maintenance.

   c)That the balance of the funds be deposited in an interest-bearing controlled monies account with the husband’s solicitors noting that the balance would be approximately $1,213,647.00.

   d)That otherwise the husband pay by way of spouse maintenance the wife’s private health insurance and running costs relating to her motor vehicle.

   e)That the husband ensure the wife has the use of a motor vehicle being either the vehicle presently used by her or of a similar standard.

   f)That the husband be restrained from transferring or encumbering mortgaging or otherwise dealing with his interest in properties at S Street, Suburb T and N Street, Mr Z and the company I Pty Ltd, without first giving to the wife 42 days written notice.

   g)That the husband be restrained in his capacity as a director of the said company from doing any act or thing to deal with or negatively affect the property at 2 O Street, Suburb P or from changing the shareholding, issuing shares or structure of the company without first providing to the wife 42 days written notice.

1. The controlled monies account holding the remaining sale funds as at June 2017 had a balance of about $1.27 million. Those funds are the subject of the wife’s present application.

The wife’s funds

1. The wife unilaterally withdrew from the joint mortgage facility secured over Property the sum of $42,000.00 on 28 April 2015. These funds were ultimately transferred to the wife’s Commonwealth Bank account.

2. The wife says that her lump-sum maintenance payment calculated at the rate of $1,000.00 per week for 52 weeks has now been exhausted. She pays $560.00 per week in rent with the balance of funds being spent on her household day-to-day living expenses, her contribution to the maintenance of Property E and the carer in support of her children. Funds provided to her by way of lump sum spouse maintenance were exhausted by May 2016.

3. Subsequently, the wife accessed the interim lump sum payment of $350,000.00 to meet the above expenses. She says that as at May 2017 she had a balance of about $95,000.00 left in her CBA Bank account. Part of the funds has been expended by her in payment of legal and expert’s fees totalling about $310,000.00.

4. The wife gives evidence that her reasonable expenses total just under $1,700.00 per week.

5. The characterisation of the $350,000.00 received by the wife (and the husband) pursuant to interim orders may well be the subject of further argument at final trial with such characterisation being adjusted wholly or in part or reversed. It is to be reasonably expected that such portion of those funds as had been reasonably expended on the reasonable needs of her and the children will not comprise part of her property entitlement.

6. There are significant cash funds still available to the parties representing the remaining proceeds of sale of the property at 1 O Street.  Should the wife receive a further capital payment, then again the characterisation of those funds in her hands will depend upon the application of those funds. Such proportion as are reasonably expended on the reasonable needs of her and the children are likely not to comprise part of her property entitlement.

7. So whether the funds are paid by way of a capital payment or by way of a capital payment characterised as spouse maintenance is of little moment in the context of this interim application.

8. It is clear that there are significant cash funds to meet the amount sought by the wife. Ultimately, she seeks an order that she retain Property E and receive a further lump sum of $500,000.00. Her entitlement will be measured against the receipt by her of any capital sums prior to final hearing and the disposition and characterisation of those funds.

9. There is no submission by either party that the payment to the wife of a further sum of $400,000.00 would impinge upon any ultimate property orders to be made.

10. If funds received by her mean that she is unable to retain Property E or receive any additional cash payment as sought by her then that is a consequence of her own choice to seek interim distributions as she has done.

11. The principles as to applications for interim property provision are well settled, (Strahan & Strahan [2009] FamCAFC 166) and require a two-step process.

12. Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.

13. In Strahan (supra), the Full Court said:

    132. In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1) (h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

14. Secondly, the Court is to have regard to relevant matters in s 79 of the Family Law Act 1975 (Cth).

15. It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so. (Emphasis added)

16. It is important to have regard to an overall caution. In Harris & Harris (1993) FLC 92-378, the Full Court said:

    As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.

17. In Strahan (supra), the Full Court said at [132]:

    … regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

18. It is now well settled that in property cases the Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.  Such a consideration should not be guided by an assumption that the parties’ rights to, or interests in, property are, or should be, different from those that then exist. The question is whether those rights and interests should be altered.

19. There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact.

20. In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.

21. Both parties in this matter in any event seek that the Court make final adjustive orders.

22. There are issues as to the weight to be afforded to the parties’ respective financial contributions at the commencement of their cohabitation but otherwise during the cohabitation there appears to be little to differentiate the contributions of both parties in a relationship of over 12 years that produced two children.

23. It is clear that taking into account the previous distribution to the wife of $350,000.00 and the amount of $400,000.00 now sought by her by way of further distribution that the total of such sums represent a small proportion of the available property pool well within the range of entitlements to be expected by the wife.

24. In all circumstances it is proper that such an order be made.

The mortgage issue

1. On 18 November 2016 the commercial mortgage facility secured over the property at 1 K Street, Suburb L expired. The partnership that owns the property was made an offer by the mortgagee the Commonwealth Bank of Australia to renew the facility, effectively rolling over the current liability.

2. The wife has refused and or failed to agree to the facility being rolled over for reasons that appears best known to her, considering that the property on the valuation evidence presently available affords ample and adequate security for the proposed new facility.

3. As a consequence of the failure to complete fresh mortgage documentation the currently expired facility is accruing interest at an additional penalty rate with the consequential financial burden falling on the partnership where the husband asserts a shortfall of income over expenses.

4. The CBA had previously advised the partnership that fresh loan documentation was to be completed by 18 May 2017. Correspondence was forwarded to that effect to the wife’s solicitors on 22 March 2017. The wife’s response on 23 March 2017 surprisingly was that the two commercial properties at Suburb L be sold.

5. The husband objects to a sale and seeks final orders that he acquire the wife’s interest in the said properties.

6. The wife contends in submissions that:

   for good and sound commercial reasons, the wife does not want to be jointly and severally liable for such a large liability – especially in circumstances where the financial circumstances of the persons with whom she is jointly and severally liable are unknown to both she and the court.

   The wife does not wish to be “in the business of real property” with the husband’s family as a minority interest holder. She does desire to access her equity at law in the properties: Exh “A”.

7. On 6 April 2017 the husband received correspondence from the solicitors for the other members of the partnership advising that proceedings would be taken to recover any losses including additional payments to the CBA arising from the failure of the wife to sign fresh loan documents.

8. Otherwise, the wife has been requested to sign in her capacity as a partner fresh tenancy agreements for the properties at K Street, Suburb L and has refused to do so, notwithstanding her being provided with copies of the proposed tenancy agreements some time ago.

9. The husband complains that as at 8 May 2017 the tenant at 1 K Street, Suburb L was $36,000.00 in arrears of mortgage with, he asserts, difficulty in recovering those arrears in the absence of a tenancy agreement.

10. The wife for her part takes issue with the single expert in relation to the underlying valuations of the real estate properties comprising the partnership. She has sought to engage an adversarial expert with the two experts to confer imminently with the prospect of further application to adduce adversarial expert evidence.

11. There is clearly no issue in identifying the assets of the partnership and the ultimate valuation of the underlying real estate properties and hence the ultimate valuation of the partnership will either be the subject of agreement or determination by the Court at final hearing.

12. Thus the wife would be able to “access her equity at law in the properties” as it would comprise part of the pool in the husband’s hands for division.

13. The wife makes forceful submissions that it is not open to the Court to order the wife by way of mandatory injunctions to enter into fresh CBA obligations in circumstances that, in the context of the partnership, involves the obligations of mutual trust and confidence and where the wife will have no control in the continued operation of the partnership.   

14. As a consequence of the orders proposed below, it is unnecessary to consider such argument.

15. There is no prejudice to the wife in requiring her to transfer to the husband her interest in the partnership and of the underlying real estate assets. Indeed, it meets her complaint as to the alternate remedy sought by the husband that she be required to sign CBA loan documentation and leases.

16. The consequence of such transfer is that the husband’s interest in the partnership and thus the underlying real estate assets will be in the pool of assets for consideration at final hearing and not the disparate partnership interests of the husband and wife.  

17. Section 114(1) of the Act provides that the Court may make such order or grant such injunction as it considers proper with respect to the property of a party to the marriage. Section 114(3) provides that the Court may grant an injunction, by interlocutory order or otherwise in any case in which it appears to the Court to be just and convenient to do so and either unconditionally or upon such terms and conditions as the Court considers appropriate.

18. Section 114 of the Act enables the Court to provide a discretionary remedy. The fundamental principle is that an order should only be made if it is proper. Discretionary though the remedy may be, it is not unfettered and must be exercised according to law (see Stanford v Stanford (2012) 247 CLR 108).

19. In the circumstances, it is proper and appropriate that orders be made for the wife to transfer to the husband her interest in the commercial real estate properties at K Street and assign to the husband her interest in the partnership. He will be thereafter required to indemnify her from all or any liability arising from the partnership. Such orders do not affect the interest of the third party partners.

20. Orders will be made accordingly.

Post Script

1. Notwithstanding the longstanding and ongoing litigation in this Court in relation to the parties’ property and the interim hearing on 16 June 2017, the wife did at 4.09 pm on 15 June 2017 file a Summons in the Supreme Court of New South Wales seeking relief under the provisions of Section 66G of the Conveyancing Act 1919 (NSW) seeking the appointment of the Perpetual Trustee Company Ltd as trustee for sale of the commercial properties at 1 K Street, Suburb L and 2 K Street, Suburb L as referred to above.

2. The wife otherwise sought orders that upon sale after payment of mortgage, real estate commission, conveyancing fees and disbursements that the proceeds of sale be paid as to 25 per cent to herself and 25 per cent to each of the partners including the husband.

3. To say that the relief sought is misguided is an understatement as the underlying partnership interests of the partnership members particularly the husband and wife has been valued by the single expert. The ownership by the partnership of the subject commercial properties is only one aspect of that valuation.

4. As a consequence of the wife’s precipitate action in filing her application in the Supreme Court of New South Wales, these proceedings were again before this Court on 17 July 2017 in respect of an urgent Application in a Case filed by the husband on 28 June 2017.

5. In that Application in a Case the husband sought injunctive relief in summary restraining the wife from taking any steps to continue the Supreme Court proceedings commenced by her or in the alternative seeking injunctive relief restraining the wife from taking any steps to oppose the transfer of the Supreme Court proceedings to this Court.

6. The wife filed a Response on 13 July 2017 to the husband’s application. She sought orders in the alternative for the dismissal of the husband’s Application in a Case or that the Application in a Case be stood over pending delivery of judgment reserved 16 June 2017.

7. As a consequence of the orders to be made for the reasons set out above, it is now unnecessary to determine the husband’s fresh application as there remains no utility in the wife’s continuing her proceedings in the Supreme Court of New South Wales.

8. Accordingly, the husband’s Application in a Case filed 28 June 2017 will be dismissed.

I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 21 July 2017.

Associate: 

Date:  21 July 2017