Husband Seeks an Injunction on the Sale of Property

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT MELBOURNE

 

MLC 2209 of 2018

 

MR CANSDALL

Applicant

 

And

 

MS CANSDALL

Respondent

 

REASONS FOR JUDGMENT

(revised from the transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
2. Having heard the parties’ submissions, I am not satisfied that the Court has the jurisdiction to deal with the applications in a case filed by the applicant husband on:

a) 26 March 2020 as amended on 15 April 2020; and
b) 28 April 2020.

3. I am also satisfied that, for the reasons which have been explored in the submissions by the respondent wife, the Court does not have jurisdiction to deal with that application. 
4. Interim orders were made by her Honour Judge Stewart on 14 November 2018 which provided for the sale of the property at C Street, Suburb D (“the property”), which is the subject of this application (“the November 2018 orders”).  The November 2018 orders provided a mechanism for the husband to sell the property forthwith, and for the sale proceeds to be divided.  These orders were not complied with by the husband, which led to the wife bringing an application on 15 May 2019. Further orders were made by his Honour Judge Riethmuller on 15 July 2019 providing for the wife to have control of the sale (“the July 2019 orders”).  The July 2019 orders provided for:

a) the appointment of an agent;
b) the determination of a sale price; and
c) the sale to be effected.

5. On the basis of the material which has been filed in this matter, I am satisfied that the wife has complied with the July 2019 orders to effect that sale.  The July 2019 orders were made by his Honour after a contested hearing between the parties.  To date, no appeal has been filed against those orders.  This Court does not have the authority to vary those orders, which only an appeal Court would have.  In those circumstances, I do not have the power to deal with this application, and I therefore dismiss the application.
6. To the extent that an application for a stay has been made orally today, it has been said on behalf of the respondent wife that the Court does not have the jurisdiction to grant a stay until such time as an appeal or application for leave to appeal has been made. 
7. It was argued on behalf of the husband that rule 29.04 of the Federal Circuit Court Rules 2001 (Cth) is broader in its terms than rule 22.11 of the Family Law Rules 2004 (Cth) and is not dependent upon an appeal being lodged or application for leave to appeal being filed. 
8. It is not necessary for me to determine that issue because I am not satisfied that the husband has identified any factors which would warrant the granting of a stay at this point in time.  If the husband files an appeal, then certainly it would be open to him in those circumstances to seek a stay of the orders to which the appeal relates. 
9. I therefore am not prepared to exercise any discretion that the Court would have at this point in time to grant a stay of the July 2019 orders.  That is an issue to be determined if and when a proper application is filed in this Court.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

 

Associate: 

 

Date:                           15 June 2020

Posted in: Derek Legal Blog at 25 August 20