Swayte & Swayte (No. 3)

This case involved an application for interim property orders between Ms Swayte (the applicant wife) and Mr Swayte (the respondent husband). The dispute concerned a residential facility requiring completion and a future Stage 2 development, with the wife asserting insufficient funds for these works and development. A development control order had been issued by the local council, and the wife sought to be appointed trustee for the sale of certain properties to comply with this order and address accumulating liabilities. She also sought an order for the sale of a specific property to finance short-term payments. Concerns were raised about a potential application for an administrator due to complaints about the facility's administration, while the husband wished to retain the facility despite demonstrating no capacity to do so.

The court was required to determine whether to grant the wife's applications for interim property orders. Specifically, the court needed to consider the appointment of the wife as trustee for the sale of the Suburb F Property and H Pty Ltd (trading as H Company), the application of the net proceeds of sale, the wife's sole management of the day-to-day operations of H Company pending sale, and her sole authority in Land and Environment Court proceedings. The court also had to consider an injunction against the husband, the terms of notice for the sale of the Suburb F Property and H Company, and conditions under which the husband might acquire these assets. Furthermore, the court needed to address the appointment of the wife as trustee for the sale of the W Town property, the application of its net proceeds, and the wife's sole use and occupation of that property.

Foster J applied principles relating to interim property orders in family law proceedings, considering the financial circumstances of the parties and the need to preserve assets and address liabilities. The court noted the husband's lack of demonstrated capacity to manage or fund the development of the residential facility, the existence of significant liabilities including to the Australian Tax Office, and the pressing need to comply with council orders. The court reasoned that appointing the wife as trustee for sale of the Suburb F Property and H Company, and the W Town property, was necessary to address these issues, manage the ongoing operations of the business, and facilitate a sale to meet accumulating liabilities and potential claims. The court also granted an injunction restraining the husband from interfering with the operation of H Company, reflecting the findings of his prior failure to cooperate.

The court made orders as sought by the wife. These included appointing Ms Swayte as trustee for the sale of the Suburb F Property and H Company, with specific directions regarding the sale process, the application of sale proceeds to discharge liabilities including tax obligations and rectification works, and the payment of specific sums. Ms Swayte was also appointed to solely manage the day-to-day operations of H Company and given sole authority in Land and Environment Court proceedings. The respondent husband was restrained by injunction from attending or interfering with H Company premises. The court also appointed Ms Swayte as trustee for the sale of the W Town property, with its proceeds to be used to meet property outgoings and liabilities, and to pay $150,000 to each party. Ms Swayte was granted sole use and occupation of the W Town property pending further order.