FOSTER J:
1 On 29 June 2016, I made the following orders:
UPON the undertaking of the plaintiffs given to the Court:
(a) To submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the Orders made in pars 1 to 3 below or any continuation thereof (with or without variation);
(b) To keep confidential all information which the lawyers for Suzanne Binetter may provide to the plaintiffs in relation to the sale or intended sale of the property known as 36 Chamberlain Avenue, Rose Bay, New South Wales, being Lots 10 and 11, Section A in Deposited Plan 6048 Folio Auto-Consol 2523-62 (the Property);
(c) Not to approach or contact, directly or indirectly, any purchaser or prospective purchaser, purchaser's solicitor, financier or any agent (vendor or buyer) associated with the intended sale of the Property,
AND UPON the undertaking of the Commissioner of Taxation (Cth) given to the Court at the hearing on 23 March 2016 to satisfy all undertakings as to damages given by the plaintiffs in this proceeding (which, for present purposes, shall include the undertakings noted at (a), (b) and (c) above) up to the amount of $500,000,
BY CONSENT AS BETWEEN THE PLAINTIFFS AND SUZANNE BINETTER, THE COURT ORDERS THAT:
1. Suzanne Binetter pay (at the time of or shortly after settlement) an amount equal to one half of the net sale proceeds of any sale of the Property, being 50% of the balance of the proceeds of any sale of the Property (excluding any interest earned on the deposit between the time of exchange and settlement) after payment of:
(a) All money due and payable to AMP Bank Limited properly secured by its mortgage registered over the Property;
(b) All money due and payable to the vendor's agents, including commission, advertising costs and incidentals;
(c) All professional fees and disbursements due and payable to the vendor's solicitor associated with the conveyance of the Property; and
(d) The usual adjustments at settlement, including, but not limited to, council rates, water rates, water usage and registration fees,
into an interest bearing Controlled Money Account [as defined by the Legal Profession Uniform Law (NSW)], established and maintained by the solicitors acting for Suzanne Binetter, ClarkeKann Lawyers, to be held in that account up to and including 5.00 pm on the date which is 14 days after judgment in this proceeding is delivered by Gleeson J (the Relevant Date). For the avoidance of doubt, this Order does not prevent Suzanne Binetter from retaining or otherwise dealing with the remainder of the proceeds of the sale of the Property, provided that this Order is otherwise complied with.
2. Up to the Relevant Date, and whilst Suzanne Binetter is still the registered proprietor of the Property, Suzanne Binetter must give written notice to the plaintiffs of any intention to further encumber the Property at least four (4) business days prior to such proposed encumbrance taking effect. For the avoidance of doubt, this Order does not prevent Suzanne Binetter from selling the Property.
3. Suzanne Binetter and the plaintiffs may agree in writing any exceptions to the preceding paragraph. In that case, Suzanne Binetter and the plaintiffs must as soon as practicable file with the Court and serve on the other parties a minute of a proposed Consent Order recording the variation signed by or on behalf of Suzanne Binetter and the plaintiffs and the Court may make an order giving effect to the said agreed variation.
4. Liberty be granted to all parties to apply on three (3) days' notice or on such shorter notice as a Judge might allow.
THE COURT NOTES THAT:
5. These Orders are made without any admission by Suzanne Binetter.
(the 29 June orders).
2 The 29 June orders were made by consent. At the time when the orders were made, settlement of the sale of the property known as 36 Chamberlain Avenue, Rose Bay, NSW (the property) was imminent.
3 Suzanne Vivienne Binetter is the wife of Michael Thomas Robert Binetter who is the sixth defendant in this proceeding. Suzanne Binetter is not a party to this proceeding.
4 By the 29 June orders, Suzanne Binetter was restrained from dealing with 50% of the net proceeds of sale of the property, upon the basis that, notwithstanding that she held the entire legal interest in the property, Michael Binetter had a good claim in equity for half of the beneficial interest in the property and that it was likely that, at some time in the near future, he will be made bankrupt on the judgments likely to be ordered against him in this proceeding and his trustee in bankruptcy will then be able to claim the value of that half interest for the creditors of Michael Binetter, including the plaintiffs in this proceeding.
5 As at 29 June 2016, this proceeding had had a long history in this Court. There had been many interlocutory applications and a substantial final hearing before Gleeson J which ultimately led to her Honour's judgments in BCI Finances Pty Limited (in liq) v Binetter (No 4) (2016) 117 ACSR 18 and BCI Finances Pty Limited (in liq) v Binetter (No 5) [2017] FCA 1524.
6 The background facts and matters relevant to the present application before me are found in the first of her Honour's judgments referred to in [5] above.
7 When I made the 29 June orders, the plaintiffs' claims against the defendants had not yet been determined by the Court, although there was evidence before the Court which supported those claims. The first judgment delivered by Gleeson J upheld much of what had been alleged by the plaintiffs.
8 On 22 December 2017, subsequent to delivering the second judgment referred to at [5] above on 15 December 2017, her Honour ordered judgment against Michael Binetter totalling approximately $65 million.
9 All of her Honour's judgments are under appeal. The hearing of the appeals is fixed to commence on 6 August 2018 with a hearing estimate of five days.
10 By Interlocutory Application filed on 26 February 2018, Michael Binetter and Suzanne Binetter (the Binetters) claimed orders varying the 29 June orders. Their claims were subsequently modified. On 27 March 2018, Michael Binetter and Suzanne Binetter filed an Amended Interlocutory Application (Amended IA). In the Amended IA, the Binetters claimed orders that, notwithstanding the 29 June orders, both Michael Binetter and Suzanne Binetter be permitted to withdraw from the sum of approximately $3,030,000 presently held in a controlled money account in the name of ClarkeKann lawyers with St George Bank Limited (Account number 554523073) (the Fund) being 50% of the net proceeds of sale of the property and being the funds the subject of the 29 June orders, upon first giving the plaintiffs' solicitors two days' prior notice in writing:
(a) the sum of $93,364.69 on account of legal costs and disbursements outstanding to Braddon Marx Lawyers for work done in respect of a proceeding in the Family Court of Australia (SYC4839/2011);
(b) the amount of legal costs due in respect of Appeal Proceedings in the Family Court of Australia filed by Suzanne Binetter in the Appeals Division of the Family Court of Australia (EA5 of 2018); and
(c) the sum of $200,000 to be paid into Court as security for the costs of the respondents in appeal proceedings in this Court No 189 of 2018.
11 At the hearing before me on 11 May 2018, the above claims were again updated. The total legal fees and disbursements now claimed are in excess of $410,000.