Bernie & Bernie [2025] FedCFamC1F 892 (5 December 2025)

1. The Applicant will pay the Second Respondent's costs of and incidental to the Application in a Proceeding sealed 2 December 2025, fixed in the sum of $25,000, within seven (7) days.

1. The First Respondent's costs of and incidental to the Application in a Proceeding sealed 2 December 2025 are reserved.

1. There is no Court known by the name "Federal Circuit and Family Court of Australia".
2. The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Bernie & Bernie has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The applicant and first respondent began a relationship in 1996. The evidence is that they married on 16 November 2002 and separated finally in 2015. They entered into a Binding Financial Agreement in October 2020. It seems agreed that the terms of the Binding Financial Agreement have been put into effect. The consequence, or at least one of the consequences, of that is that the applicant lives in a property said to have a value of about $4.5 million which is legally owned by a person who is the seventh respondent to the proceedings that have been commenced.
2. The property the subject of the Application in a Proceeding within those proceedings is owned legally by the second respondent, who is the first respondent's sister. The evidence is that the property was purchased in early 2021 for $2.5 million. It appears to be a transaction in a series of purchases and sales of real property undertaken by the second respondent over a period of time. Her evidence is that two residences have been constructed on it; and that, in the course of those works, she was assisted by the first respondent.
3. It seems that, on 31 October of this year, the second respondent entered into a contract to sell the property for $26 million. According to the contract, settlement was to occur on 16 January 2026. At the same time, and on the same date, the second respondent purchased another property. She entered into a contract for the purchase of that property from the person to whom she intends to sell the property the subject of these proceedings.
4. It appears that, on about 4 November of this year, the applicant gave notice to, at least relevantly, the second respondent as well as, it seems, the first respondent (and I think probably all of the intended respondents) of her intention to commence proceedings in the Court.
5. It appears, chronologically, that, on 28 November, the purchaser of the property the subject of this application paid the deposit of $2.6 million into trust.
6. At a time that is unspecified in the evidence before me, agreement was reached between the second respondent and the intended purchaser of the property to bring forward settlement of the sale of the same to today.
7. It also can be said that it appears that, despite correspondence passing between the solicitors for the applicant and the second respondent, agreement about the issue of the sale of the property was unable to be reached. So much is clear by the presence of the parties before me today.
8. It is in those circumstances, then, that the Application in a Proceeding was filed by the second respondent seeking an order that, pursuant to s 127 of the Land Title Act 1994 (Qld) ("Land Title Act"), caveat number ... lodged on the title of H Street, Suburb K (property more particularly described as Lot [redacted] with title reference ...) be removed with immediate effect.
9. Whilst it appeared from the contents of the applicant's most recent affidavit relied upon by her in meeting the application (namely, the affidavit sealed, I think, 4 December 2025) that she was agreeable to the removal of the caveat, that agreement was conditional. Counsel who appeared for her certainly maintained the submission that the applicant has a caveatable interest in relation to the property. It was said, reflective of the applicant's evidence, that the applicant did not wish to frustrate the process of the second respondent selling the property and acquiring the other property, both of which are scheduled, it seems, to settle today.
10. The second respondent's position, advanced by Mr Alexander of King's Counsel who appears on her behalf, was that an order should be made pursuant to the Land Title Act for the removal of the caveat. The first position advanced was that that should occur absent the imposition of any conditions by way of injunction; but, if the Court was persuaded that that was an appropriate course, then any such injunctive restraint should be limited in the manner outlined during the course of his submissions.
11. It seems to me that the applicant's case on a final basis is, in essence, that real property held legally by the second respondent has always been - at least since, I think, 2011 - and remains the subject of equitable interests, which she asserts should be regarded as existing in either herself and the first respondent together or in the first respondent.
12. It appears that at least an aspect of her case at this stage - noting, of course, that the proceedings have only just commenced - includes that, since about 2011, she and the first respondent proceeded to own real property held in the names of others. Albeit that, as I understood the submissions at least, that state was something that was then unknown to her.
13. 2011 appears to be a relevant date because it is linked with the sale of real property, which it is agreed, it seems on the evidence, had been owned by the applicant and the first respondent as to 99 per cent and one per cent, respectively. That was a property at Suburb M, which the evidence suggests was purchased for $6,250,000 and sold for $4,060,000 after what was described in the applicant's evidence as "a huge renovation".
14. The applicant's case, in an overall sense, is to assert the existence of a caveatable interest in the property the subject of this application by virtue of, it is submitted, the existence of trusts of a variety of natures and to arise from what is, in essence, an asserted tracing of funds sourced from the sale of the Suburb M property and, after dealings, applied to, or at least in relation to, the property the subject of this application.
15. Another aspect of the applicant's case said to found a caveatable interest in the subject property is the provision by her of $300,000 - provided to the first respondent, it seems, on or around 24 July 2023. However, her evidence is also that she was repaid the sum of $450,000 in the period from 21 August 2024 until June 2025.
16. The second respondent's position and evidence is, in essence, that, in relation to the subject property and the issue of the provision and/or potential use of the $300,000 is concerned, it was really that the works on the subject property and a neighbouring property, which is now, as I understand it, sold, had been completed prior to the provision of the funds from the applicant.
17. The second respondent also said in her evidence before the Court that none of the real property she has purchased and held in her name has been bought with funds from the first respondent from the sale of property owned by he and the applicant or owned by him only. Her evidence is that, if, in her legal acquisition of real property, there was a shortfall, either she borrowed funds or obtained vendor finance in her own name. Her evidence is that there was no agreement between herself and the applicant and first respondent, or herself and the first respondent, that the applicant and first respondent would have any interest in any real property she owned - she says, in essence, the extent of it was that she permitted them to live in properties prior to their separation and, after the breakdown of their relationship, permitted the first respondent to live in the property.
18. The second respondent's evidence in relation to the subject property is that: it supports a mortgage provided to National Australia Bank which secures a line of credit to the amount of $2.5 million; the mortgage is in her name only; she has made all mortgage repayments; $2.5 million is owing to the bank; she has paid all costs associated with the property; and that the applicant has not contributed at all to the purchase, maintenance or improvement of the property.
19. In summary, the applicant's response, as I appreciated it, was, in essence, that much of what I have just summarised as coming from the second respondent's evidence is a lie. Her contention in the overall proceedings, and with particular reference to the proceedings dealing with the subject property, is, as I appreciated it, again, that, in essence, irrespective of the name on the bank account or the name on the title of real property, it is all, and should be regarded as being, property of the first respondent.
20. That is a very broad summary of some of the relevant circumstances in which the second respondent moves the Court today by Application in a Proceeding seeking an order for the removal of the caveat over the subject property to facilitate the settlement of its sale later today.
21. The Court has been moved by the applicant in seeking orders setting aside the Binding Financial Agreement and in seeking declarations that: real property and various interests in entities, and, as I understood it, trusts held in the names of the second respondent and the third respondent (who is the first respondent's mother) should be regarded as being held on trust for herself and the husband together, or the first respondent alone; the third respondent is his puppet; the second respondent's legal ownership of the property should be regarded as being subjected to the imposition or recognition of trusts in her favour, or in the favour of herself and the first respondent, or in his favour alone. The grounds advanced, at this stage, to provide the basis for an order setting aside the Binding Financial Agreement are that it would be unconscionable in the circumstances in which it was entered into to, in essence, permit the first respondent to continue to rely upon it and/or, as I appreciated it, that it should be set aside by reason of his failure to disclose properly his interests, including interests which are asserted to be in the nature of equitable interests in real property and legal interests in corporate entities.
22. Given this, it is, I consider, clear that the Court is called on today to exercise federal jurisdiction. I consider, in the circumstances here, that the application that relates to the subject property arises out of the same substratum of fact as the circumstances relied upon by the applicant to found the jurisdiction relied upon in seeking orders to set aside the Binding Financial Agreement and for the declaratory relief that is also sought. I consider, therefore, that they all form part of the one justiciable controversy that is before the Court and that the Court, consequently, has jurisdiction to make the orders sought by the second respondent pursuant to s 127 of the Land Title Act (Qld). That section, relevantly, provides that a court may make an order that a caveat be removed upon an application by a person such as the second respondent.
23. It is clearly established by long standing authority, to which I have been helpfully referred in the written submissions prepared by Counsel who appear for each of the relevant parties today, that in a case such as this, where the application is for an order for the removal of the caveat, the onus falls on the caveator (here the applicant) to satisfy the Court of the two stage test when it comes to decide whether to exercise the discretion to grant the interlocutory injunctive relief.
24. The first requirement is that the applicant must establish that there is a serious question to be tried that they have the estate or interest which they claim in the land in question; and the second, having done so, is to establish that the balance of convenience favours the maintenance of the caveat on the Register until trial.
25. Having regard to the submissions made both in support of being satisfied of that required discharge of onus and against it, I am not persuaded that the applicant has discharged the onus of establishing at this point in time, on the evidence before me, that there is a serious question to be tried that she has the interest which she claims to have in the property the subject of this application.
26. If I were persuaded of that, I am not, in the circumstances before me, persuaded that the balance of convenience would favour the dismissal of the application seeking an order for the removal of the caveat.
27. I consider it appropriate that an order be made pursuant to s 127 of the Land Title Act for the removal of the caveat lodged on the title to the property the subject of this application.
28. I turn now to consider the conditions that were advanced. I regard them, as Counsel clearly quite appropriately did as being, in essence, almost a separate application for interlocutory injunctive relief in relation to the use to be put to the settlement proceeds once they are received by the second respondent.
29. Longstanding authority makes it abundantly clear that the power of the Court to grant injunctions is a discretionary power which is not to be exercised lightly. It is also, I think, clearly established by longstanding authority that the Court will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim.
30. The Court, therefore, is required to undertake the assessment of whether there is a serious issue to be tried and, secondly, to consider whether the balance of convenience favours making the injunction sought in the term sought or not.
31. As part of the latter exercise in this particular case, one of the things that needs to be considered, as part of the exercise of discretion, is the issue raised by the applicant: namely, the assertion that there is a danger or risk that the sale proceeds may be dissipated or dealt with so as to frustrate any judgment that she may ultimately obtain following the prosecution of her application for an order setting aside the Binding Financial Agreement, the making of declaratory relief in the terms sought and, if successful, in relation to the setting aside application, the making of orders pursuant to s 79 of the Family Law Act 1975 (Cth) in terms sought - namely, terms which would see her receive property valued at 50 per cent of the net value of the total property of herself and the first respondent, whatever that may ultimately be found to be.
32. Insofar as the application for the order setting aside the Binding Financial Agreement is concerned - that is, the substantive application - it is, as I have said, clear that it is very recently commenced. In such a circumstance, it seems appropriate that I proceed on the basis that there is established, at this stage at least, a serious issue to be tried as between, insofar as that is concerned, the applicant and the first respondent; and, insofar as the declaratory relief is concerned, as between the applicant and each of the parties to the proceedings to whom the specific declaratory relief sought relates.
33. I turn, therefore, to consider the issue of the balance of convenience and whether, in the exercise of the broad discretion, I should be persuaded on the evidence before me that the balance of convenience favours making injunctive orders in the terms sought by the applicant, or not, or in any other terms.
34. The terms of the injunctive relief sought by the applicant are set out in her Response to an Application in a Proceeding, as amended during the course of discourse with Counsel, to reflect the contents of her affidavit of 4 December of this year.
35. By way of very broad summary, if orders were made in such terms, they would permit the second respondent to apply the sale proceeds from the sale of the property due to settle later today to discharge the commercial bank debt secured by mortgage over it, to settle her purchase of another piece of real property for the contract price of $7 million, to allow her to pay the costs associated with the sale and purchase, respectively, of each of those pieces of real property, to accord to her access to $1 million of the sale proceeds then remaining and to then see the balance of the same placed into the trust account of her solicitors to be invested on her behalf pending further order of the Court or agreement of the parties in writing.
36. It seemed to be relatively uncontentious, for the purpose of at least today, that that would see about $15 million held in trust.
37. It was submitted by Counsel who appeared for the applicant - by way of very broad summary - that the balance of convenience favours the making of orders in terms sought because:

(a) the relief sought by the applicant, should she be successful in her application to set aside the Binding Financial Agreement, is relief which would see her receive property valued at 50 per cent of the net value of the total property of herself and the first respondent; and

(b) given her case is that, in essence, such sum is the result of either contributions or a shared intention that it be held on trust for herself and the first respondent together, or for the first respondent alone,

holding this amount in trust is necessary to ensure that her interests are protected pending the resolution of these proceedings.

1. It was also submitted that the Court would be persuaded that such a course was necessary and that the balance of convenience favours the imposition of such a restriction because of the concerns expressed by the applicant that the second respondent will act so as to cause the funds received from the settlement of the sale of the subject property to be removed from the jurisdiction, such that they would no longer be available to meet any orders which the applicant may ultimately obtain following the prosecution of the relief she seeks.
2. In opposing the making of orders in the terms sought by the applicant, it was submitted on behalf of the second respondent that the Court would not be persuaded, on the evidence before it, to make such an order because to do so would hold out the second respondent from accessing money which is hers.
3. The submission emphasised that the second respondent is not a party to the marriage between the applicant and first respondent, which, it seems, despite their relatively lengthy separation, persists in lawful form. It was said on behalf of the second respondent that the fact of her not being a party to their marriage was particularly relevant given the applicant's failure, in seeking the relief that she sought, to proffer an undertaking as to damages.
4. It was also submitted that: the applicant faces the hurdles that are associated with any application seeking to set aside a Binding Financial Agreement and then to obtain relief following such an application; in essence, the funds to be provided on settlement this afternoon are the funds of the second respondent; there is no proper reason established, in an evidentiary sense, for her to be held out from them.
5. Mr Alexander KC also submitted, though, in essence to assuage concerns, that the second respondent was prepared to accede to an order that she would not sell the real property that she will acquire at settlement this afternoon without first providing to both the first respondent and the applicant 21 days' notice of her intention to do so, and also - whilst it was certainly not part of what I will describe as her preferred option - that she would be prepared to accede to a restriction on further dealing with the property in terms which would be that she would not sell, dispose of or further encumber it ("it" being the property she is to acquire at settlement this afternoon) without first providing each of the first respondent and the applicant 21 days' notice in writing of her intention to do so.
6. In the circumstances here, where:

(a) the applicant and first respondent entered into a Binding Financial Agreement in October 2020; and

(b) the terms of that agreement have been, it seems, implemented; and

(c) the application seeking to set the Binding Financial Agreement aside has been brought in November of 2025; and

(d) the evidence of the applicant in support of it - noting, of course, the stage at which the proceedings find themselves - is as it stands; and

(e) the second respondent's evidence is that she is not going to provide the sale proceeds to the first respondent, is not going to send the sale proceeds overseas, has no overseas bank accounts and that her plans are to use the sale proceeds to pay down debt and to buy acreage in South East Queensland for horse agistment,

I am not persuaded that the balance of convenience favours the granting of injunctions in the terms sought by the applicant.

1. Given all of those matters, and, of course, noting the stage at which these proceedings find themselves, I am not satisfied, on the evidence, before me, that the danger or risk of the second respondent dealing with property in a manner that would frustrate a judgment made in favour of the applicant in the future (if successful in each of the matters about which she seeks success) is such as to persuade that the appropriate and just course is to hold the second respondent out from the funds, which will be available to her this afternoon, in the manner that is proposed by the applicant.
2. However, I do consider it appropriate that the second respondent be required to provide 21 days' notice in writing of an intention to deal with the property that she will obtain ownership of at settlement this afternoon prior to dealing with that property; and that such order extend to her providing notice of the same duration in writing to each of the first respondent and the applicant of any intention to further encumber the property, or to deal with it, or to dispose of it.
3. I consider that an order in such terms, which requires the second respondent to provide such notice, is one which appropriately reflects the risk that is adverted to by the applicant in the circumstances of her evidence and in the circumstances of this particular case, in which the relief she seeks is as set out in the Initiating Application.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan.