Wallace and Wallace

In *Wallace & Wallace*, the Family Court of Australia considered an application by Mr Wallace (the applicant husband) for orders to sell the parties' jointly owned home to avoid mortgagee repossession. Ms Wallace (the respondent wife) opposed the sale, seeking to retain the property as part of her settlement. Intervenors, H Pty Ltd and W Pty Ltd, who held a mortgage over the property, were joined to the proceedings.

The court was required to determine whether to grant orders for the sale of the property, despite the wife's opposition, and whether to grant sole occupancy of the property to the husband to facilitate the sale. A key issue was the wife's assertion that a guarantee she provided in relation to a mortgage was entered into under duress, rendering it unconscionable. The court also considered the wife's application for injunctions to prevent the third-party mortgagees from enforcing their rights.

Justice Cronin found that a sale of the property was necessary to protect the asset from mortgagee action, given the husband's changed financial circumstances and the default notice served by the third-party mortgagees. The court applied principles of unconscionability, referencing *Blomley & Ryan* and *Commercial Bank of Australia Ltd v Amadio*, but concluded that the wife, despite her admitted limited resources, had been legally represented and had voluntarily executed the guarantee. Consequently, the court found no unconscionability to prevent the sale. The wife's application for injunctions against the third parties was dismissed due to a lack of evidence supporting the application of Part VIIIAA of the *Family Law Act 1975* (Cth).

The court ordered the wife to vacate the property by a specified date, after which the husband would have sole occupancy and responsibility for arranging the sale. The proceeds of the sale were to be applied first to sale costs, then to discharge the mortgages, with any balance to be deposited into an interest-bearing account pending further order. The court also made orders pursuant to s 106A of the *Family Law Act 1975* (Cth) to facilitate the execution of necessary documents by the Registrar if a party failed to comply with the sale orders.