Nguyen v Corbett

Cross-claim for adjustment of property pursuant to Family Law Act, s 79A

1. The second issue for determination arises out of order 6 which provided: Direct that the first defendant pursue any claim for an adjustment of property pursuant to the Family Law Act, s 79A, by way of cross-claim in these proceedings, such cross-claim to be instituted within 28 days of today's date.
2. Mrs Corbett has not filed a cross-claim for property settlement orders under the Family Law Act ("FLA") pursuant to this order. She now seeks an extension of time to do so. She also seeks a stay, pending resolution of the cross-claim, of the operative orders made by me on 12 April.
3. On 10 May (the last day of the 28 day period provided for in order 6) a Notice of Motion was filed for Mrs Corbett seeking an order that the proceedings be stayed pending determination of Mrs Corbett's appeal. Shortly before the hearing on 12 June an affidavit was filed by Mrs Corbett's solicitor, Christopher Edward Moore of Hicksons Lawyers. At the same time a form of amended notice of motion was provided to the Court seeking an extension of time to file the cross-claim and consequential directions for the filing of evidence. Mr Moore stated in his affidavit that the reason why the cross-claim had not been filed in accordance with the orders of 12 April is that it had been intended to seek a stay of the orders in connection with Mrs Corbett's appeal. He said it was not until 5 June 2018 that advice was received from senior counsel that Mrs Corbett should file a cross-claim in accordance with order 6 rather than apply for a stay of that order.
4. It is unfortunate that Mrs Corbett's advisers misunderstood the orders which I made. It should have been clear that even if a stay of enforcement of the orders against Mrs Corbett were granted pending an appeal she would still need to articulate her proposed cross-claim. But I accept that this was just a misunderstanding. It was in no way designed to achieve some sort of forensic advantage for Mrs Corbett (and has not done so).
5. Counsel for Mr Nguyen did not challenge Mr Moore's evidence. But as I understood it, counsel did suggest that the Court should not now extend the time for the filing of a Cross-Claim. I do not agree. If an extension of time is not granted, Mrs Corbett will be free to commence proceedings either in this Court or in the Family Court for FLA property settlement orders. For reasons given in my second decision at [38], I am firmly of the view that any further proceedings for property settlement orders should take place in this Court and thus (as this is the most convenient course) by way of cross-claim in these proceedings. The consequential directions sought in Mrs Corbett's Amended Notice of Motion impose a commendably short period of time (four weeks) for her evidence to be filed. I therefore propose to grant the extension of time and make consequential directions along the lines sought.
6. The directions proposed on Mrs Corbett's behalf contemplate the filing of a Cross-Claim specifying the relief sought. I appreciate that this may be the usual way in which applications for FLA property settlement orders are made in the Family Court. But in this case I think it would be of assistance for the cross-claim to be formally pleaded. It is not to be expected that all of the facts which may bear on the Court's exercise of judgment under s 79 can be identified and formally pleaded. But facts concerning contributions to the acquisition of the Baulkham Hills property and other facts relevant to the issues which I have identified should be capable of being pleaded, and may even be admitted. Accordingly I will provide in the directions for the filing and service of a Cross-Claim (which will formally initiate the cross-claim proceedings and join Mr Corbett and Mr Nguyen as cross-defendants) with a pleaded Statement of Cross-Claim to follow.
7. Mrs Corbett's application for a stay of the substantive orders made on 12 April pending the determination of the Cross-Claim gives rise to separate considerations. The relief sought in the proposed Cross-Claim is that Mrs Corbett "is entitled absolutely and beneficially to the whole" of the Baulkham Hills property. Counsel explained that Mrs Corbett hopes to continue to live at the property, where she has lived since 1997 (see my first decision at [22]). Counsel argued that if the make-available order was not stayed (together with any consequential orders for sale) she will be deprived of that opportunity.
8. In response, counsel for Mr Corbett pointed out that if Mrs Corbett's cross-claim is less than fully successful (in that she is unable to establish an entitlement to the whole of the Baulkham Hills property) that property will have to be sold in any event. In counsel's submission, the likelihood of Mrs Corbett obtaining, on her cross-claim, an entitlement to the whole of the Baulkham Hills property is so remote that the Court should not grant a stay.
9. Counsel for Mrs Corbett submitted that the fact (as I have found) that the 2014 consent orders which led to the s 79A application involved a miscarriage of justice did not necessarily mean that Mrs Corbett could not subsequently succeed in her cross-claim. That may be accepted. My decision that the consent orders should be set aside was based on the failure by Mr and Mrs Corbett in their application to the Family Court to advert to the contrary interest of the Nguyens as creditors of Mr Corbett as FLA s 79(10) required. I concluded that this was sufficient to invalidate the consent orders. It was not essential to my decision to reach any conclusion about the extent of any property adjustment which might have been made in Mrs Corbett's favour had proper reference been made to the Nguyens' interests as creditors, and I did not do so.
10. But it will still be necessary, if Mrs Corbett is to obtain the orders she seeks in the cross-claim, for her to prove her case. There will be two aspects to that case. First, Mrs Corbett will need to establish what is the appropriate share of the matrimonial asset pool to which she is entitled by way of property settlement. This will require taking into account the factors mentioned in FLA s 79(4) and in turn the factors mentioned in s 75(2) (see s 79(4)(e)). Secondly, Mrs Corbett will need to demonstrate that her share of the asset pool needs to be satisfied by a transfer of the whole of the Baulkham Hills property. Obviously she will need to establish that her proper share is equal to, or exceeds, the value of the property. But that is not all. If there are insufficient assets in the asset pool to meet the claims by Mrs Corbett and by Mr Corbett's creditors, Mrs Corbett will need to persuade the Court that the Baulkham Hills property should be quarantined from the claims of Mr Corbett's creditors, potentially leaving them out of pocket.
11. Counsel for Mrs Corbett emphasised that in making a property settlement order, the court is not limited to financial considerations and can take account of non-financial contributions by the parties and also the parties' needs. But there is no doubt that the quantum of the parties' respective financial contributions to the asset pool is a relevant, and usually important, factor: see s 79(4)(a).
12. In this case, Mrs Corbett herself has stated that Mr Corbett made the major financial contribution to the assets of the marriage generally, and the acquisition of the Baulkham Hills property in particular (see my first decision at [83] and [85]). The Baulkham Hills property was in Mr Corbett's name as was the bank mortgage used to finance its acquisition: at [22]. It is clear that at least from the time that Mrs Corbett stopped work in 2006 Mr Corbett made virtually all the contributions to the joint bank account from which the payments were made: at [133]. At the time the half share of the property was transferred to Mrs Corbett in August 2013, the property was still encumbered in the amount of approximately $100,000. That loan was wholly paid off by Mr Corbett before the balance of the property was transferred to Mrs Corbett pursuant to the 2014 consent orders: at [65]. These circumstances present formidable difficulties for any argument that, on a proper exercise of the court's power under s 79, Mrs Corbett will be entitled for the whole of the Baulkham Hills property, no matter how great her non-financial contributions to the marriage.
13. Counsel for Mrs Corbett pointed out that it appears that Mr Corbett has other assets offshore which may be brought to account as part of the matrimonial asset pool: see my second decision at [36]. But this cuts both ways. It means that the Nguyens and Mr Corbett's other creditors (if any) could possibly be recouped from the Baulkham Hills property without depriving Mrs Corbett of the full share of the marital assets to which she may be entitled under s 79.
14. A court making a property settlement order must consider the impact of such an order on external creditors. But it is well established that, where one party to the marriage is indebted to an external creditor who is unsecured, the court may order that party to transfer assets to the other party by way of property settlement, even if that will prejudice the external creditor's ability to re-recover the debt owed. The principles on which the court acts were summarised in Semmens v Commonwealth (1989) 99 FLR 294 at 302-303. I referred to them in my first judgment at [2017] NSWSC 1689 [101]. One situation where the court may be prepared to quarantine property settlement assets in this way is where the debt in question has been incurred by one party to the marriage completely independently of, and without regard to the interests of, the other. Counsel for Mrs Corbett referred in this regard to the case of gambling debts incurred by one spouse.
15. But it is by no means obvious that Mr Corbett's debt to the Nguyens falls into that category. Counsel for Mr Nguyen submitted that the claim which led to the costs order in favour of the Nguyens was one which, had it succeeded, would have operated to swell the pool of matrimonial assets.
16. Even if it would have been possible, had the Baulkham Hills property remained in Mr Corbett's name, to have made an order requiring him to transfer it to Mrs Corbett unencumbered, thus quarantining it from the Nguyens' claims, events have moved on. Mr Corbett has transferred the property to Mrs Corbett and the make-available order has now been made which compels Mrs Corbett to apply that property in satisfaction of his debts to the Nguyens (and his other creditors). No doubt it would still be possible for the Court as part of a property settlement to order Mr Corbett to discharge those debts from his own resources, thus making it unnecessary for Mr Corbett's creditors to proceed under the make-available order. But if Mr Corbett lacked the resources to discharge the debts from other sources, it might be too late to overcome the effect of the transfer and the make-available order.
17. The court now has additional powers for the purpose of FLA property settlement proceedings to make orders directly against third parties. These powers are set out in FLA s 90AE. Unlike the traditional means of quarantining property settlement assets from an unsecured creditor, this enables orders to be made directly against the third party creditor, requiring it to accept the transfer of the liability from one party of the marriage to the other. Such orders could apparently be used to override the make-available order (which would presumably be an "instrument" for the purposes of s 90AC(1)(b)); alternatively an order could be made compelling the creditor to agree to the order being discharged (s 90AE(2)(a)). But these newer powers would not be available if it were foreseeable at the time the orders were made that to cast the burden of compliance on Mr Corbett could jeopardise the Nguyens' recovery: s 90AE(3)(b).
18. Even if such a power were available, the Court would need to be satisfied that it was appropriate to exercise it in the particular circumstances of this case. As I have found, the Nguyens have already been substantially delayed and hindered in pursuing recovery of their debt from Mr Corbett by the steps he took to transfer the Baulkham Hills property into Mrs Corbett's name. It is by no means obvious that it would be proper to make an order requiring the Nguyens to pursue other assets that Mr Corbett may have outside the jurisdiction if the effect would be to shift the risk of further delay (or, even worse, of non-recovery) from Mrs Corbett to Mr Corbett's creditors.
19. It is neither necessary nor appropriate to resolve this debate at this stage; it is sufficient to say that it is far from certain on the material currently before the Court that Mrs Corbett would succeed in having Mr Corbett's liability to the Nguyens quarantined so as not to impinge upon the Baulkham Hills property.
20. For these reasons, I think the submission by counsel for Mr Nguyen that it is unlikely that Mrs Corbett will be wholly successful in claiming the Baulkham Hills property to the exclusion of the Nguyens has considerable force. As counsel submitted, if Mrs Corbett fails in this regard, then the property will probably need to be sold in any event.
21. Counsel for Mrs Corbett suggested that the three Corbett children presumably would wish to see their mother stay in the house. Counsel suggested that if a relatively small amount of money (say $100,000) had to be found then it might be possible to raise those funds and for Mrs Corbett to continue living in the house even though she has no means herself of meeting such a liability. But there is no evidence to support this scenario and Mrs Corbett has so far shown no desire to try to raise monies on the property (see [9] above).
22. Furthermore, Mrs Corbett has been ordered to pay Mr Nguyen's costs of these proceedings. If that costs order stands, the only source of funds available to discharge it would appear to be from the sale of the property. Counsel for Mrs Corbett submitted that in the FLA property settlement proceedings an order might be made requiring Mr Corbett to indemnity Mrs Corbett against her costs liability, or even shifting the liability directly to Mr Corbett under s 90AE. But again it is far from clear at this point that the court would be prepared to shift the liability in that way. Mrs Corbett was separately represented from Mr Corbett in these proceedings. She could have filed a submitting appearance but chose to make an active defence to Mr Nguyen's claims. It is difficult to see why the costs order which resulted from Mrs Corbett defending the proceedings should not fall on her.
23. I am also concerned about the protection of Mr Nguyen's interests as creditor in the event of a lengthy stay being granted. A freezing order has already been made against Mrs Corbett preventing her from disposing of the property: see my second decision at [3]. Counsel for Mrs Corbett offered a further undertaking in consideration of any stay that Mrs Corbett would not deal with or encumber the property. Counsel submitted that there was ample equity in the property to meet the debt owed to the Nguyens which, as he observed, is carrying a healthy post-judgment interest rate. But while this may be so, at least at present, it is not affirmatively established. There is no evidence before the Court as to the value of the property. Nor is there any evidence about how Mrs Corbett's defence costs are being funded or about the quantum of costs that have been ordered against Mrs Corbett.
24. Despite all these considerations, I have decided to accede to Mrs Corbett's application for a stay, for a short period. My essential reason for doing so is pragmatic. Although there are question marks over Mrs Corbett's ability to obtain property settlement orders awarding her the whole of the Baulkham Hills property, she has not yet articulated her claim. If I have not misinterpreted her counsel, it may be that further consideration will result in a quantification of the claim and it may be that her claim to the whole of the property will be modified. At all events, I think the Court will be in a better position to make a ruling on whether a stay should be granted for the period of the cross-claim when Mrs Corbett's claim has been articulated. This will also allow further evidence to be presented on relevant questions such as the value of the property, the willingness or otherwise of other members of Mrs Corbett's family to put up money, and the quantum of the costs order made against her. It is also possible that the grant of a stay for a short period of time will lead to the appeal proceedings being resolved, as I discuss in more detail below. If that happens it should further clarify the stay question.
25. The proposed directions submitted by Mrs Corbett provide for her to file all of her evidence in support of her claim within four weeks. I propose to grant a stay for five weeks to allow that evidence to be filed. Then, should Mrs Corbett choose to press for a stay, she may make an application to have it extended.
26. This does not mean that all of the orders which are the subject of the stay application should be stayed for the five week period I have in mind. Mrs Corbett seeks a stay of the order I made (order 5) setting aside the consent orders made by the Family Court. I see no reason why the operation of this order should be stayed. Should an appeal be pursued and should the appeal on this ground succeed, then the order can be reinstated. But in the meantime, my decision is presumptively correct and I see no reason why the consent orders, which I have found to have involved a miscarriage of justice, should remain in force.
27. Mrs Corbett also seeks a stay of the orders for costs and interest on costs (orders 8 and 9). These orders will not be enforceable until and unless an assessment is undertaken. I see no reason to interfere with the quantification process. It will be up to Mr Nguyen to decide whether he wishes to take the commercial risk of assessing the costs when there is a possibility of the order being set aside as a result of Mrs Corbett's appeal. But there is no reason for a stay at this stage.
28. Mrs Corbett sought a stay of the make-available order. That order has been somewhat overtaken by events as I now propose to make more detailed orders to carry it into effect. I think it is those orders which I should consider as they will be the operative orders. I will stay the orders appointing a receiver. However, I will not stay the orders advertising for creditors of Mr Corbett to come forward and providing for their claims, if any, to be adjudicated by the Court. There is no reason why the Court should not take steps to identify any further creditors who may take advantage of my conclusion that the transfers of the property were void. Indeed, it is desirable to identify such creditors so that they may, if they choose, participate in the further s 79A proceedings.

Appeal

1. The third issue for determination arises out of the fact that Mrs Corbett has appealed against my decision of 12 April. She seeks an order staying the operation of my 12 April orders pending the determination of the appeal (independently of the stay she seeks pending determination of her cross-claim).
2. The issues which arose in my first decision are set out at [8]-[13]. In summary, there were three main contentions made by Mr Nguyen on which he succeeded. First, Mr Nguyen successfully challenged the 2014 consent orders under s 79A. I found that proper disclosure had not been made of the Nguyens' adverse interests as Mr Corbett's creditors, and that this was a miscarriage of justice. It was not necessary to reach this conclusion to consider whether there was any intent to defraud creditors: at [102].
3. Mr Nguyen also succeeded, independently, in challenging the second transfer pursuant to s 37A. I found that the transfer was made by Mr Corbett in order to defraud creditors in the relevant sense (at [108]-[116]). Mrs Corbett failed to establish her s 37A(3) defence for two separate reasons. First, because of her involvement as a joint application for the orders, she failed to establish that she acted in good faith (at [119]-[126]). Secondly, I was not satisfied that she lacked notice of Mr Corbett's intent (at [168]-[170]).
4. Mr Corbett also successfully challenged the first transfer under s 37A. I rejected Mrs Corbett's argument that there was no prejudice to the Nguyens because she already had an equitable interest worth more than half the property: at [128]-[142]. Again, I found that Mr Corbett made the transfer with intent to defraud his creditors: at [143]-[147]. Mrs Corbett's s 37A(3) defence failed on two separate grounds. First, she failed to establish that she was a "purchaser"; I found that the transaction in her favour was a gift and was not based on any agreement on her part to surrender her rights: at [148]-[149]. I was also not satisfied that Mrs Corbett lacked notice of Mr Corbett's intent in making the transfer: at [163]-[167].
5. Counsel for Mr Nguyen pointed out that a number of aspects of my decision were factually based. Again he submitted that in order to justify a stay which would prevent the sale of the property Mrs Corbett would need to establish that she had arguable prospects of succeeding wholly in the appeal. That would require her to succeed on each of the three main issues outlined above. He submitted that the prospects of this happening were insufficiently strong to justify the grant of a stay.
6. The Notice of Appeal filed on behalf of Mrs Corbett contains twelve grounds, many of which have sub-grounds. It challenges each of the elements of my decision referred to at [40] above. It also challenges the orders made on the ground of denial of natural justice. But at the hearing before me, counsel for Mrs Corbett did not explain the arguments which would be deployed in support of the grounds of appeal. Counsel characterised the Notice of Appeal as a "holding" document. Counsel held out the possibility that aspects of the appeal would not be pursued, or even that the appeal as a whole might be discontinued if (as I have done) I were to grant an extension of time for the cross-claim.
7. I have already referred at [7]-[9] above to counsel's apparent change of position on the natural justice complaint. I assume, as a result of the change of that position, that the natural justice ground of appeal will not be pursued. I pressed counsel for Mrs Corbett on what argument would be put in support of the challenge to my finding that the consent orders represented a miscarriage of justice of the purpose of s 79A. Counsel's response, as I understood it, did not seek to defend the consent orders on substantive grounds. Rather, the argument appeared to be that no order setting aside the consent orders should have been made before the cross-claim had been determined. The difficulty with this argument is that the cross-claim was not made at an earlier point and the Court has therefore had no choice but to deal with the s 79A issues in two stages. Nor was I asked prior to my judgment of 12 April to refrain from making an order setting the consent orders aside on this, or any other, ground.
8. I think it is fair to say that counsel acknowledged these difficulties. I was left with the clear impression that the Notice of Appeal had indeed been filed for "holding" purposes and that full consideration has not been given on Mrs Corbett's behalf to which, if any, of the grounds of appeal are truly arguable and should be pursued. It may well be that none of them will be. Certainly the argument before me did not establish affirmatively that any of the grounds had any substance. Counsel freely acknowledged the difficulty in seeking to overturn findings of fact. It appeared that no attempt would be made to overturn my findings concerning Mr Corbett. From Mrs Corbett's point of view, the problem is that there are findings against her which were based on factual findings on issues where she bore the onus. For these reasons, there is considerable force in the submission by counsel for Mr Nguyen that the appeal has insufficient substance to justify a stay.
9. Furthermore, there is a question of protecting Mr Nguyen's interests pending the appeal. The critical question is whether there is adequate protection against additional risks which would be imposed on Mr Nguyen by a stay. These are the risk flowing from the delay in obtaining enforcement of the debts and the risk of not recovering costs which may be awarded in favour of Mr Nguyen should the appeal be unsuccessful. In my view, the Court would usually only grant a stay if satisfied to a high degree of certainty that such risks were adequately protected against. Ideally that would be done by providing some form of security. The existing freezing order and the undertaking offered by Mrs Corbett (see [34] above) can be described as a type of negative pledge but do not of themselves give Mr Nguyen the certainty and ease of enforcement which would flow from an actual grant of security over an identifiable asset in the form of monies in Court or a bank guarantee.
10. In the end, I do not need to resolve these questions for the purposes of the present application. I am granting a stay for a period of five weeks in any event. It may be that no further stay is sought. If Mrs Corbett does make an application for a stay she may be content to rely solely on the cross-claim as the basis for it. But it will be open to her to make a further application for a stay on account of the appeal should the appeal be pursued.

Conclusions and orders

1. For these reasons, I have concluded that: (1) the Court should make orders consequential upon the make-available order of 12 April 2018 along the lines sought by Mr Nguyen, including orders for the identification of other creditors of Mr Corbett and for the appointment of a receiver to sell the Baulkham Hills property; (2) the Court should extend the time for Mrs Corbett to make a cross-claim for provision pursuant to the Family Law Act, s 79A, and give consequential directions along the lines sought by her; (3) the Court should stay the operation of the orders for the sale of the Baulkham Hills property for a period of five weeks, but refuse Mrs Corbett's application for a stay for any longer period.
2. Mrs Corbett has obtained an order extending time for her to file her cross-claim, but this order was only necessary because of a failure on her part to comply with earlier directions of the Court. She has obtained a stay for a limited period but only on pragmatic grounds. I consider that she should bear the costs of the applications which are the subject of this judgment.
3. The orders of the Court are:
4. Direct the plaintiff: (a) to place an advertisement in "The Australian" newspaper to the effect that: The Supreme Court of New South Wales in proceedings number 2015/226458 has set aside certain transfers of land at [XX], Baulkham Hills, NSW such the land is available to be applied to meet the claims of creditors of James Edmund Corbett. The Supreme Court of NSW has appointed a receiver for the sale of the land. Any person claiming to be a creditor of James Edmund Corbett and wishing to claim should inform Mr GJ Gooden, Solicitor & Notary Public of 2 Terry Street, Balmain NSW 2041, in writing of the nature of the claim, the amount of the claim, when the entitlement claimed arose and the circumstances in which the claim arose within 28 days of the date of the advertisement and that no claim shall be effective as having been made until acknowledged by GJ Gooden in writing as having been received. In the event that any creditor of James Edmund Corbett does not make a claim as set out above then the property may be sold and the proceeds of sale distributed without regard to such claim or claims. (b) to acknowledge receipt of any such claim within 14 days of receipt of the claim; (c) to seek answers to such questions from such persons who make a claim and make such other inquiries as are necessary to verify or otherwise the entitlement of each and any of the claimants; (d) to refer any claims against the second defendant which are disputed by the parties to the proceedings or any of them to the Court for determination.
5. Grant liberty to each party to apply with respect to order 1 on three days' notice.
6. Order that PAUL ANDREW BROWN be appointed receiver of [XX] Baulkham Hills, in the state of New South Wales, with Torrens Title folio identifier [XX] ("the Land") for the purpose of giving effect to order 3 made by the Court on 12 April 2018, with the following powers: (a) To obtain such valuation or valuations of the Land as he considers necessary to give effect to a sale of the property and to deduct from the proceeds of sale the costs of obtaining such valuation or valuations. (b) To enter into a Selling Agency Agreement with a real estate agent in relation to the sale of the Land, agree to and to incur commission, charges and expense in connection with the marketing and sale of the Land including auctioneer's fees and to deduct those fees from any deposit lodged by a purchaser and from the proceeds of sale of the property. (c) To offer the Land for inspection as part of the marketing thereof for sale. (d) To determine the terms and conditions of such proposed sale and to determine the amount of any deposit such that it not be less than 5% of the purchase price. (e) To sell the Land on behalf of the First Defendant by public auction with a reserve price to be determined by her having regard to the valuation or valuations obtained by him. (f) To sell the Land on behalf of the First Defendant by private treaty but only at a price and upon terms approved by the Court. (g) To execute on behalf of the First Defendant a contract for sale of Land. (h) To execute on behalf of the First Defendant a Transfer or Transfers in relation to the Land as may be required by the Real Property Act 1900 (NSW) to give effect to registration of a purchaser of the Land. (i) To receive payment of the deposit on the sale of the Land and to retain or release the deposit monies where he considers it appropriate to do so or in accordance with the Order of the Court. (j) To authorise a stakeholder to receive payment of the deposit on the sale of the Land and to authorise the stakeholder to retain, release or otherwise account to the receiver for the deposit monies where he considers it appropriate to do so or in accordance with the Order of the Court. (k) To charge his usual professional fees as a solicitor for acting as receiver of the Land. (l) To act as the solicitor on the sale of the Land and to charge his professional costs and disbursements for the same and to deduct the same from the proceeds of sale of the property. (m) To take all such steps as he considers appropriate to give effect to a sale of the Land at the best price and on the best terms as can be obtained at the time it is offered for sale. (n) To exercise the First Defendant's entitlement to possession of the Land. (o) To bring proceedings for possession of the Land on behalf of the First Defendant. (p) To apply on behalf of the First Defendant for the issue of a writ of execution. (q) To seek from the Court orders restraining the First Defendant or any other person from entering or remaining on or occupying the Land or otherwise impeding the sale of the Land. (r) To receive from the purchaser or purchasers the proceeds of sale of the Land. (s) To apply or direct the application of the proceeds of the Land or part thereof to the payment of any person or persons secured on the Land. (t) To hold the balance remaining at the direction of the Court. (u) To pay, if he wishes, the balance remaining into Court. (v) To seek the directions of the Court.
7. Grant liberty to each party to apply with respect to order 3 on three days' notice.
8. Extend the time for the First Defendant to file a cross-claim pursuant to order 6 made on 12 April 2018 to 5:00pm on 20 June 2018.
9. Direct the First Defendant/Cross-Claimant to file and serve a pleaded Statement of Cross-Claim by 18 July 2018.
10. Direct the First Defendant/Cross-Claimant to file and serve all evidence to be relied upon in support of her cross-claim by 18 July 2018.
11. Upon the First Defendant, by her solicitor, giving an undertaking to the Court that she will not in any way dispose of, encumber or in any way deal with, alienate or diminish the value of the Land until further order of the Court, stay the operation of: (a) order 3 made by the Court on 12 April 2018; and (b) orders 3 and 4 above until 5:00 pm on 25 July 2018.
12. Order that the First Defendant's Notice of Motion dated 10 May 2018, as amended, be otherwise dismissed.
13. Order that the First Defendant pay the Plaintiff's costs of: (a) the Plaintiff's application for orders consequential upon order 3 made by the Court on 12 April 2018; (b) the First Defendant's Notice of Motion dated 10 May 2018, as amended.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2018