FAMILY LAW - REVIEW APPLICATION - decision of registrar not to accord the injunction application urgency - held, registrar erred in not according this case urgency.

Corporations Act 2001 (Cth)

Family Law Act 1975 (Cth) ss 79, 81K

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380

Solicitor for the second, third and fourth respondents

Solicitor for the second, third and fourth respondents

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. The parties must file and serve affidavit material in support of and in opposition to the application in a proceeding filed 22 September 2025 by 4.00pm on 14 October 2025.
2. Any further affidavit or affidavits in support of the application in a proceeding sealed 22 September 2025 must be filed and served on or before 4.00pm on 21 October 2025.
3. The affidavits in response to those filed pursuant to paragraph 2 of these orders are to be filed and served on or before 4.00pm on 28 October 2025.
4. All submissions upon which the parties wish to rely must be filed and served by noon on 29 October 2025.
5. The further hearing of this proceeding is fixed for a contested interlocutory hearing before me at 9.00am on 30 October 2025, such hearing to be confined to a duration of 2 hours.
6. Costs of this day are reserved.

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 Nurmi & Nurmi has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. I take the view that the registrar erred in not according this case urgency.
2. Injunctions, by definition, are urgent. The commercial setting of this contract highlights the fact that it is urgent. There is an undefined and yet present body of creditors swirling in the commercial background to which the contractual setting of the share sale agreement is relevant. No dispute has been advanced that the share sale agreement presently does not have a completion date but there is the assertion advanced by Mr Schmidt that if the sale agreement is permitted to settle, that might have a bearing on the substantive question of the ascertainment of the legal and equitable interests of the parties to the marriage in property. That is squarely a matter germane to s 79 of the Family Law Act and a threshold question to be determined in any property alteration proceeding.
3. The affidavit material, such as has been filed thus far, gives me only the briefest of opportunity to examine what is the factual milieu against which this dispute is set. One issue will be the entitlement of the appointor to affect a change to the status of a trustee. Another will be the quantification of the parties' interests in valuable assets. It was put on the basis that the injunction sought is an asset preservation order within the contemplation of Cardile v LED Builders Pty Ltd[1] in the High Court. It seems to me that the applicant for the injunction, which is the substantive application to be agitated, will need to demonstrate not only the existence of a serious issue to be tried but that the balance of convenience favours the grant of the injunction and that there are no disentitling factors, of course, assuming that the price for the grant of the injunction, namely, the provision of an undertaking as to damages is given.
4. Mr Schmidt has told me that when the matter is debated in three weeks or thereabouts affidavit material will address those points and submissions will be advanced to further elucidate the issues. Among the relief sought in the application in a proceeding was an application for the appointment of receivers to one or more companies that, although debated, is best founded under the provisions of the Corporations Act, even though s 81K of the Family Law Act makes provision for the appointment of receivers. It does not spell out in any detail the grounds for and circumstances in which such an order may be made, however. More conventionally, in cases such as this, which are in real terms a commercial dispute, the application is brought under the provisions of the Corporations Act and I propose to proceed under it. This court being a capital "C" Court for the purposes of the definition of "court" in the Corporations Act therefore possessed power to deal with coterminous powers as exist in favour of the Federal Court of Australia and State Supreme Courts concerning receivers.
5. It will be necessary for the parties to provide affidavit material in support of and in opposition to the application accordingly by 4.00pm seven days from today which is 14 October 2025.
6. Any further affidavit or affidavits in support of the application in a proceeding sealed 22 September 2025 must be filed and served on or before 4.00pm, 21 October 2025.
7. The affidavits in response to those filed to the orders made in the previously provided order are to be filed and served on or before 4.00pm, 28 October 2025.
8. All submissions upon which the parties wish to rely must be filed and served.
9. I direct that this case be listed before me at 9.00am on 30 October 2025.
10. By reason of the fact that written submissions will be filed and served its unlikely that there will be extensive viva voce submissions so I expect that the hearing on 30 October will be confined to two hours.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson.

[1] (1999) 198 CLR 380.