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Property – trust for sale sought by wife – dismissal of wife’s application to restrain husband from making a vendor bid

In Field & Kingston (No.3) [2021] FamCA 167 (25 March 2021) Wilson J heard a wife’s application for her appointment as trustee for sale of a property registered in the husband’s name. She also sought an order restraining him from making a vendor’s bid.

The wife feared that the husband would agree to unfavourable terms and that he would submit an unrealistically high vendor bid to thwart the sale.

Dismissing the wife’s application, Wilson J said (from [16]):

“ … [T]he auction contract … contain[s] express provisions for the making of a vendor bid…

[17] I am unable to find a contractual basis upon which … the husband is enjoined from making a vendor bid. … In debate with [the wife’s lawyer] I … raised with him the test propounded in Blueseas Investments Pty Ltd & Mitchell [1999] FamCA 745; which … restates the conventional learning on the grant of an injunction namely, that the applicant must demonstrate … the existence of a serious issue to be tried and that the balance of convenience favours the granting of the injunction. I am not persuaded that the applicant has demonstrated anything remotely approximating such an entitlement and on that basis alone, aside from the express provisions of the contract, I rule against the wife…

[18] In all I am not persuaded that it is proper to appoint the wife as the trustee for the sale.

[19] … [O]n behalf of the husband [counsel submitted that] … a trustee must not put … itself in a position where there might be a conflict between duty and interest. Self-evidently, the risk of the emergence of such a conflict would arise (or I apprehend that there is a substantial risk to that effect) if the wife were appointed as a trustee because there is a substantial risk that she might agree to any price that is obtained at the auction. In those circumstances I am not persuaded that the wife is entitled to the orders that she seeks.”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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