Poulos v Eberstaller

EX TEMPORE Judgment 1The plaintiff and the defendant in these proceedings were former husband and wife. The former matrimonial home is the property known as 10 Kulgoa Road, Bellevue Hill, New South Wales. I will call that property "the Property". 2The defendant is the sole registered proprietor of the Property. On 25 October 2012, Rees J of the Family Court of Australia made orders, by consent of the parties, concerning, amongst other things, the disposition of the Property. 3Counsel for the defendant has correctly conceded that the orders gave the plaintiff, at least initially at the time they were made, an equitable interest in the Property. I will return to consider the orders shortly. 4The plaintiff commenced these proceedings on 13 August 2013, by obtaining leave to file in court, in the Duty Judge's list, a summons where, relevantly, the plaintiff claimed, in paragraph 1, and I paraphrase, a declaration that in the events which have happened the defendant is not entitled to sell, transfer encumber or otherwise deal with the Property to any person other than the plaintiff. 5The plaintiff sought, in order 2, and I also paraphrase, an order that the defendant do all things necessary and execute all such documents, including a transfer in registrable form, so as to cause the Property to be transferred to the plaintiff subject to the plaintiff redeeming the existing mortgage to the National Australia Bank. 6The plaintiff sought interlocutory relief to support the declaration in paragraph 1 of the summons. 7On 13 August, 2013, the court made a number of orders including, by order 2, that the defendant, by himself, his employees, servants and/or agents be restrained until 5 pm on Thursday, 15 August 2013, from selling, transferring, encumbering or other otherwise dealing with the Property. Ancillary orders were made including orders for short service. 8On 15 August, 2013, both the plaintiff and the defendant appeared before the court by counsel. At that time the court was advised that the defendant had, the previous day, entered into a contract to sell the Property to a stranger. 9The evidence establishes that the defendant was advised by the plaintiff's solicitor of the making of the interlocutory order by the court by email at 12:53 pm on 13 August 2013. 10The defendant responded at 1:01 pm on 13 August 2013, by advising that a contract for the sale of the Property had been exchanged the previous night. The evidence establishes that the exchange took place at 10 pm on Monday, 12 August 2013. The circumstances in which the contract was entered into will be considered more fully below. 11The contract of sale shows that the vendor was the defendant and the purchaser was a gentleman called Premjit Singh. The price was $2,350,000. The defendant acted for himself on the contract; he did not retain a solicitor. The contract promised vacant possession on completion. Completion was to be on the 42nd day after the contract date. 12The evidence is that for some time following the breakdown of the marriage between the parties, the plaintiff has lived with the children of the marriage in the Property. The contract contemplated that the plaintiff and the children would be ejected from the Property before completion. 13There was a special term dealing with the payment of the balance of the purchase price which is found in special condition 50. Special condition 50 provides: "An amount of $1 million is payable on completion to discharge the mortgage. In the event that the lender and mortgagee agree to extend the mortgage for a maximum period of two years then the amount payable on completion shall be reduced by an amount equal to the amount secured by the continuing mortgage. The balance of the purchase price (less any amount paid on completion) is payable in full on the earlier of the expiry of the period of two years from the contract date or the resale of the Land." 14It was pointed out, correctly, by counsel for the defendant, that the defendant, as registered proprietor, would, on completion of the contract, be entitled to a lien for the balance of the purchase price and that lien would support a caveat over the title of the land. That being acknowledged, however, the balance of the purchase price was not made subject to any formal mortgage or any terms protecting the right of the defendant as vendor to recover the purchase price. 15It is self evident that the terms of the contract of sale were unusual. They would have the effect that the only cash required to be paid by the purchaser on completion would be an amount necessary to pay any mortgage. No further cash would be paid for a period up to two years, which is relevant to the position of the plaintiff when regard is had shortly to the terms of an order made by the Family Court of Australia. In short, there would be no money paid to the plaintiff for the period contemplated by special condition 50. 16Additionally, there is evidence which would cause the court to infer that by reason of information made available by the defendant and the terms of special condition 50 itself, it was contemplated that a redevelopment of the Property would occur in order to maximise its value. 17It follows that the contract was subject to development risk on the part of the purchaser, so the purchaser's capacity to repay the balance of the contract price may be affected if a development proposal led to an unsatisfactory commercial outcome. It is also to be noted that while clause 2.2 of the contract, in standard terms, provided, "Normally the purchaser must pay the deposit on the making of this contract and this time is essential," it was apparently agreed between the purchaser and the defendant that the deposit would be paid the next business day. 18It appears from the evidence that the purchaser is associated, by family relationship, with a person with whom the defendant had done business from time to time over a period of a number of years. The court infers from the evidence that the purchaser himself did not inspect the Property before exchange of contract, although the purchaser may have had the benefit of information from a person who had done so at some time previously. The evidence also suggests that the contract which was ultimately entered into was negotiated over a very brief period before the time of exchange. 19Apparently, the defendant made inquiries with a potential purchaser called Michael Richardson over the weekend of 10 and 11 August, 2013, but he, according to the defendant, considered the price of $2,350,000 to be too high. Thereafter, on Monday, 12 August 2013, the defendant made an approach to a business associate, Mr Jason Guarrera, who was familiar with the Property, who then produced the buyer, Premjit Singh, which led to the exchange of contracts at 10 pm that night. 20The defendant first notified the plaintiff of the proposal to sell the Property by an email dated 12 August 2013 at 11:36 am to the solicitor for the mortgagee, the National Australia Bank, which was copied to the plaintiff. That notification led the plaintiff to make the application in court which, unfortunately, did not lead to the making of orders until the morning of 13 August 2013. 21In relation to the value of the Property, the evidence is not consistent. In the time available no party has been able to tender professional valuation evidence. The defendant has provided certain evidence to the court. In paragraph 18 of his affidavit he says that his real estate agent advised him that the Property was worth between $2.3 million and $2.5 million. He annexed to his affidavit an appraisal of a valuer that suggested the value may have been $2,530,000 in June 2012. He said that in a fully renovated state the Property may achieve a sale price of $3.3 million to $3.5 million, as suggested by the plaintiff. 22The defendant tendered a document called "Balance Sheet" which was apparently used in evidence before the Family Court of Australia. That document became Exhibit 3. That document was filed in the Family Court on 1 June 2012. In a column "Husband's Value", it attributed a value of $3,172,500 to the Property, and notes in the document referred to earlier valuations of $3,500,000 in January 2009 and $3,525,000 in August 2010 23There is an issue about the correctness of any of those values. 24The defendant tendered an extract of a transcript of proceedings before the Family Court of Australia in which the plaintiff acknowledged that, by reason of dilapidation, the Property was probably not worth the $3,172,500 referred to in the balance sheet, although she said that it may be worth about $3 million on resale. 25The plaintiff tendered, as exhibit A, an appraisal of the real estate agent, McGrath, dated 14 August, 2013, which suggested on a kerb side basis that the Property may be worth between $3.2 million and $3.5 million in the current market. 26In the circumstances the evidence before the court suggests a wide range of opinions as to value and the court is not in a position, even on an interlocutory basis, to fix any particular value. However, it is to be noted that the price in the contract was at the bottom end of the suggested range of values and the fact that a large proportion of the purchase price was left outstanding for a period of up to two years, would suggest that the sale took place at a relatively low value, having regard to the time value of money in relation to the outstanding purchase price. 27The court, on the basis of the evidence available at this stage, could not make any finding that there is any improper aspect of the contract of sale, although it is obvious that it has some of the hallmarks of what might be described as a fire sale, given the relatively low value and the terms that were attached to the contract in special condition 50. 28Mr Singh is not a party to the proceedings. Notwithstanding that the purchaser is not a party to the proceedings, the plaintiff has sought an order for the continuation of the ex parte order and for the matter to be stood into the Expedition List this Friday. 29If any order is made on this application, consideration will have to be given to the interests of Mr Singh as purchaser. That is an issue that will be deferred until the end of this judgment when, if it becomes necessary, there can be discussion about the appropriate orders which should be made. 30It is now appropriate for the court to consider the relevant terms of the consent orders made by the Family Court of Australia on 25 October, 2012. By those orders it was acknowledged by the parties, in order 1, that the Property would be encumbered by a mortgage which secured four accounts, with a facility limit of $920,000. As at 16 October 2012, the mortgage was drawn down to the amount of $680,000. 31Order 1 set out the account numbers and the amounts drawn down on the accounts and the current monthly repayment amounts. 32Order 2 required that on 16 October 2012, the defendant shall ensure that the amount drawn down under the mortgage is $680,000 with a facility limit of $730,446.95. Order 2 further provided that thereafter the plaintiff shall immediately be responsible for the mortgage and indemnify and hold the defendant harmless from any claim or action by the bank. 33The most important term is order 3, which provided as follows: "That immediately upon the Wife providing a bank cheque issued by an Australian bank sufficient to discharge the mortgage in full, the husband shall contemporaneously with the discharge of the mortgage in full, do all things and sign all documents necessary to transfer to the wife his interest in the property, subject to the mortgage to the wife, including giving a direction to the bank to release the title to the property directly to the wife." 34Upon the discharge of the mortgage, the following paragraphs 4, 5, 6, 7, 8 and 11 were to cease to have effect. Order 4 required the present plaintiff to pay a minimum monthly amount of $3,000 into the mortgage for the first year, and $4,000 per month subsequently. Order 5 gave the plaintiff liberty to pay lump sum amounts into the mortgage. Importantly, order 6 gave the plaintiff liberty to draw upon the mortgage any funds to meet minimum monthly payments arising under paragraph 5, up to the facility limit but for no other purpose. Order 10 made the plaintiff responsible for all costs of or relating to the Property or its transfer. Also, importantly, order 11 provided: "That if the mortgage is in default and not remedied within 30 days of the default, both parties agree to do all things and sign all documents necessary to sell the Property and provide all necessary instructions and authorities to cause the net proceeds of sale to be applied [in an order that is set out in order 11]." 35The final payment, provided for in the order for payments in order 11(e), was to pay the balance of the purchase price to the wife. It may be noted that one effect of special condition 50 of the contract of sale that the defendant entered into with Mr Singh, was that there would be no balance payable to the plaintiff until the earlier to occur of two years after completion of the contract, or the prior sale of the Property. 36It is not entirely clear, on the proper construction of order 11 of the Family Court orders, as to whether or not the defendant was given a unilateral right to decide the terms, including the price, of any sale of the Property. 37The principles to be applied by the court in dealing with this application are not contentious. The applicant must identify the legal or equitable rights which are to be determined at the trial and in respect of which final relief is sought: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at paras 8 to 16, 60 and 91. The plaintiff has satisfied this requirement by means of the framing of her claim for relief in order 1 of the summons. 38It is clear from the submissions made on her behalf that the plaintiff claims an equitable estate in the property by reason of her entitlement in order 3 of the Family Court orders, which have the effect, if they continue in force, that upon her payment of the amount of the outstanding mortgage, she is entitled to a transfer of the title to the property to herself. 39The question whether Mr Singh now has an interest, which takes priority over the interest claimed by the plaintiff, is irrelevant to the question of whether the plaintiff has rights as against the defendant to the relief which she seeks. 40That said, it is acknowledged that the position of Mr Singh and the rights claimed by him will be of some importance when considering the balance of convenience. 41The applicant must also make out a prima facie case, in the sense that, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be held entitled to relief: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 662; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at paras 19 and 70 to 71. 42In considering whether there is a prima facie case, the court normally does not evaluate the plaintiff's evidence, nor does it undertake a preliminary trial. Moreover, in deciding whether there is a prima facie case, or as it is sometimes called, a serious question to be tried, the court assesses the material raised by the defendant together with that of the plaintiff, but will assume that any conflicts between the parties' evidence will be resolved in the plaintiff's favour. 43It is therefore important that it be borne in mind in the present case that the first issue to be addressed by the court is whether, on the existing evidence, the plaintiff has a sufficiently strong case that, having regard to the matters relevant to the balance of convenience, the court should accept that on a final hearing relief may be made in her favour. 44The counterpart of that proposition is that in relation to the first issue to be addressed, in practical terms it is necessary for the defendant to show there is a strong probability that the plaintiff will fail at a final hearing. The court must consider the issue of whether the plaintiff has an equitable interest in the property without it being necessary to come to a final decision on that issue. 45In relation to the parties' basic contentions, put broadly, it is the plaintiff's position that on numerous occasions, starting shortly after the making of the Family Court orders, the plaintiff offered to settle and requested the defendant, through himself and his banker, to appoint a time for settlement and to provide precise information concerning the defendant's accounts and the total amount of the debt necessary to be repaid on settlement. 46According to the plaintiff, for one reason or another, whether of any inherent legitimacy or not, the defendant consistently failed to address the plaintiff's requests and avoided settlement and did not facilitate the plaintiff paying out the mortgage, which was the pre-condition in order 3 to her entitlement to a transfer. 47The plaintiff says that there was a period from about January to May 2013 in which attempts to execute order 3 were placed in abeyance because the defendant instituted proceedings in the Family Court to vary the consent orders, including order 3. 48The evidence is that the nature of the application was that the defendant wanted order 3 to be varied to place a condition on the plaintiff that she would not sell the Property for three years after transfer. 49It is self evident that had such a restriction been placed on the title, that would have impeded the capacity of the plaintiff to raise finance to pay out the National Australia Bank, as it would have been incumbent upon her to advise any potential mortgagee of the application in the Family Court and the possibility that there would be some prohibition on the sale for a period, which would probably make the plaintiff's application for finance unbankable. 50It is the plaintiff's case that by one means or another, she had the finance to pay out the mortgage, initially in the form of a preparedness of the Commonwealth Bank of Australia to lend the sum of $400,000, and her ability to raise the balance from other sources. 51The plaintiff says that she is here and now ready, willing and able to pay out the mortgage. She says that from the time when the defendant's application in the Family Court was summarily dismissed by that court, she re-instituted her attempt to procure a settlement in accordance with clause 3 of the Family Court orders, and continued to do so after about 24 June 2013 when the National Australia Bank facility fell into default. 52The defendant raised a number of issues as to why settlement could not, or should not, take place and then, as has already been noted, advised her, mid morning on the 12 August 2013, that he was about to sell the Property. 53The defendant, on the other hand, contended that the plaintiff did not comply with the obligations in the Family Court orders, particularly order 4, to pay the mortgage and, in particular, did not do so after notification from him that the mortgage was in default. 54The defendant invokes order 11. In effect, he says that once the time had come when the mortgage was in default for whatever reason, order 11 became paramount and superseded the effect of order 3, so that the defendant was enabled to take whatever steps he saw fit to sell the Property. 55Furthermore, the defendant says that the National Australia Bank served default notices on 23 June 2013, which required certain payments to be made within 31 days. There were four default notices. One of those default notices indicated that the amount payable was $181,090.20, which appears to be the entire amount of the facility. Each of the other three default notices stated that the amount outstanding was $4,390.70. Those three notices stated that if payment was not paid within the 31 day period, the balance of those three facilities would be accelerated. The amount of the accelerated debts would be $248,344.61, $204,965.56 and $85,759,18. 56It is to be noted, as commented above, that order 6 gave the plaintiff liberty to draw on the mortgage to meet principal and interest payments up to the amount of the outstanding unused facility. 57The court infers that one way or another, the obligations to the National Australia Bank were met by that means until shortly before 24 June 2013, when there was insufficient credit to enable that process to continue. 58The defendant has given evidence, in paragraph 15 and following of his affidavit, about the concern he has about his credit rating so long as the National Australia Bank default continues. 59The defendant has given evidence that as a businessman he is in the process of seeking to borrow significant funds from the Commonwealth Bank of Australia for his business purposes and his ability to succeed in those applications will be impeded so long as the default situation continues. 60I pass, therefore, to a consideration of the evidence. The facts relevant to the resolution of this dispute are quite complex and are sensitive to a consideration of the timing of the various steps taken by the parties at different times. 61In an ex tempore interlocutory judgment, it will not be possible to examine all the facts in detail. The objective is always to determine whether the plaintiff has a prima facie case in the manner explained above. That question distils into the following inquiry: given that it is accepted that the plaintiff has an equitable interest in the Property under the Family Court orders, does she have a reasonably arguable case, on the basis of the existing evidence, that she retains that interest as against the defendant? 62It is necessary to consider a significant body of evidence that has been placed before the court. Necessarily the court will have to do that in a relatively summary way. It is clear that shortly after the making of the Family Court orders the plaintiff made requests of the defendant in a relatively straight forward and uncomplicated way, in order to comply with order 3. 63On 1 November 2012, she emailed him and said, "Are you able to supply the current loan statement as I requested last week - this is holding off me getting approval." At this stage it is evident that the plaintiff needed information in order to raise her finance. 64It soon became evident that the defendant had decided to seek to vary the Family Court orders and on 4 December 2012, by email, he advised the plaintiff of his intention by providing her a first draft of his application. 65On 20 December 2012, by email, the plaintiff asked the defendant to send her a copy of, "the Transfer for the house, please". 66The defendant responded on the same day by raising the issue that the plaintiff was required to meet various expenses in relation to the house and then said, "Thirdly, the buyer prepares the transfer". 67It then appears that the parties became involved in an argument as to whether the plaintiff or the defendant was obliged to pay outstanding rates which accrued in relation to a period before the making of the Family Court order. 68On about 22 January 2013, the plaintiff retained Mr Andrew Ferguson of Spark Helmore Lawyers to act for her in relation to the implementation of order 3 made by the Family Court. She did not instruct him in relation to her Family Court matter. 69The defendant advised the plaintiff, on 24 January 2013, that he had lodged, that day, with the Family Court the relevant application and affidavit to vary the Family Court orders. 70It appears that for some time the plaintiff continued with her efforts to implement order 3 and, on 24 January 2013, Mr Ferguson sent an email to the defendant in which he advised that he had received instructions to act for the plaintiff in relation to the transfer of the Property. He attached a transfer form for signing by the defendant and gave advice as to how it should be competed. He then asked, "Could you please return to us on loan pending settlement the original signed and witnessed transfer so that we may attend to stamping at the Office of State Revenue". He noted that there was a mortgage to the National Australia Bank registered on the Property which needed to be discharged. He said, "If you have not done so already, could you please urgently contact your banker at the NAB to arrange the discharge of mortgage documents and to obtain an indicative pay out figure. Please provide my contact details to your banker and ask him/her to contact me to discuss settlement arrangements as soon as possible". 71It is clear from that request that Mr Ferguson contemplated that there would be a co-operative implementation of order 3 between the parties. He plainly requested the defendant to provide a transfer that was signed, on loan, to enable Mr Ferguson to effect the requirements of order 3. 72On 24 January 2013 the defendant replied by saying that, "pay out today is $691,130". He also mentioned that there was an amount of $8,614 in rates outstanding and required that they be paid separately by the plaintiff. 73There is in evidence an email from a representative of the Commonwealth Bank of Australia to the plaintiff dated 25 January 2013 which stated: "Just to let you know that I've got all documents and they will be forwarded to our processing centre today. We should be ready to settle in around five working days." 74On 28 January 2013, in an email to Mr Ferguson, the plaintiff stated that she had just read the orders that the defendant had sought from the Family Court and noted that one of the orders was, "to prevent me selling the house for three years". She stated, "Neither of these issues prevents us moving forward in transferring the house". She asked, "Has he agreed to sign the transfer? For your information he leaves for Europe on 30 January". 75On 29 January 2013, Mr Ferguson wrote an email to the defendant in response to the email in which the defendant had given the pay out figure and noted that Mr Ferguson was only instructed in relation to the conveyancing aspects of the matter. 76Mr Ferguson noted that the defendant was apparently not prepared to loan Mr Ferguson the signed transfer for stamping purposes. 77He said that he proposed a settlement be arranged whereby in exchange for the duly executed transfer from the defendant and a duly executed discharge of the mortgage, and the certificate of title from the National Australia Bank, a bank cheque to pay out the National Australia Bank debt would be handed to the defendant or his agent. Again, Mr Ferguson requested the defendant to pass on his details to the defendant's banker at the National Australia Bank and ask him or her to contact Mr Ferguson to discuss settlement arrangements. 78By Mr Ferguson's emails to the defendant of 24 January and 29 January 2013 Mr Ferguson made a relatively conventional request for the cooperation of the defendant in relation to the implementation of order 3 of the Family Court orders. The difference between the two emails was that Mr Ferguson properly reacted to the defendant's disinclination to lend him a signed transfer by explaining how in this situation the completion of a conveyancing transaction of this nature would normally take place. The natural response by a defendant who intended to implement order 3 would have been to respond positively to Mr Ferguson's request by providing the information that he sought so that settlement could be facilitated between Mr Ferguson, on behalf of the plaintiff, and the National Australia Bank. For that purpose it would ordinarily be necessary for Mr Ferguson to have the contact details of the relevant person at the National Australia Bank, given the absence at that stage of a solicitor instructed by the defendant. 79Subsequent communications took place between the defendant and Mr Ferguson. On 29 January 2013 the defendant advised Mr Ferguson that he was only acting on behalf of the conveyancing, and he should be advised that the defendant was able to lodge the transfer for stamping. Mr Ferguson replied on the same date that that would not be necessary, and that Mr Ferguson would attend to stamping of the transfer on settlement. He added, "We look forward to hearing from you and the NAB when you are ready to book settlement". The plaintiff was copied on this email correspondence and advised Mr Ferguson on 30 January 2013 that the Commonwealth Bank of Australia would be ready on Friday to do settlement. 80On 31 January 2013 the defendant advised his banker at the National Australia Bank that orders had been issued by the Family Court pursuant to which the property would be transferred to the plaintiff subject to a payout of the National Australia Bank mortgage by the plaintiff. He advised that the discharging bank would be the Commonwealth Bank and asked his banker what would be required. 81Earlier, on 30 January 2013, Mr Ferguson sent an email to the defendant in which he advised of the conveyancing aspects of attending to the transfer of the property included arranging for settlement with the defendant and the National Australia Bank, stamping the transfer and adjusting council rates pursuant to the Family Court orders. Mr Ferguson asked: "Once again, we ask that you please advise the expected date for you to provide the signed transfer and for the NAB to be ready to settle. I am happy to explain the conveyancing process to you over the phone in greater detail if this will help. Please call to discuss if you require." 82Also on 30 January 2013 the defendant by email advised Mr Ferguson that he had not notified Mr Ferguson as to when settlement would occur and referred to the fact that the transfer did not provide for an adjustment for council rates. The defendant was apparently proceeding under the misapprehension that the transfer document should make some provision for adjustment of rates as between the parties. Mr Ferguson responded on 30 January 2013 by stating: "I'm not sure what the first paragraph of your email means." 83It would appear that Mr Ferguson, understandably, was confused by being informed by the defendant that the defendant had not notified him as to when settlement would occur. 84On 31 January 2013 Mr Ferguson, in an email to the plaintiff, referred to a communication from the Commonwealth Bank of Australia which noted that the bank proposed to loan an amount of $400,000. Mr Ferguson asked where the balance of the funds to pay out the National Australia Bank loan and council rates would come from. 85Also on 31 January the plaintiff advised Mr Ferguson that she would be coming up with the $280,000 from her share portfolio. These communications, including the earlier communication from the Commonwealth Bank of Australia, provide some evidence that as at late January 2013 the plaintiff had made arrangements or could in the short-term make arrangements to pay out the National Australia Bank mortgage. 86There were some communications between the defendant and the National Australia Bank in early February 2013. Those communications included the bank preparing a discharge authority letter of instruction which was sent to the defendant with a request that he sign it. That document as it appears in the evidence has not been signed by the defendant. 87By email of 6 February 2013 the defendant advised his banker that he would hold off signing the discharge as he was going overseas for the next three weeks. He advised his banker that he would come back to the banker on his return. 88It appears that little transpired between the parties from that time until late April 2013. The reason for that, the court infers, is that the parties were awaiting the Family Court to deal with the application made by the defendant to vary the consent orders. 89On 27 April 2013 the defendant sent an email to the plaintiff in which he said "Unless you start making some payments it will go into default". 90On 29 April the plaintiff sent an email to the defendant in which she said: "We have sent you the transfer forms for the house- this would remove this issue immediately. I hardly think you can expect me to start paying for something that has not been transferred." 91It appears from these exchanges that the defendant took the stance that the plaintiff should simply start paying the mortgage. On the other hand, the plaintiff responded by suggesting that if the defendant would cooperate by implementing order 3, then the mortgage would be paid out and she would not be subjected to the need to find the funds to pay mortgage instalments on an ongoing basis. 92As of 30 April 2013 the plaintiff appears to have been engaged in some communication with the defendant's bank. At that stage the bank's contact was Andrew Shute. On 29 April 2013 the plaintiff sent an email to Mr Shute in which she referred to a conversation concerning the court orders made in October 2012 to have the house transferred into her name. The plaintiff said that she was hoping the orders would be enforced and that the parties could move forward to get this resolved, and said to Mr Shute that the parties may speak further after the position in the Family Court was known. Mr Shute's response on 30 April 2013 was to say that as the facility was in the defendant's name solely, it may be in breach of privacy for the bank to discuss the issue directly with the plaintiff, notwithstanding that the bank was aware of the court proceedings. 93It appears from the evidence before the court that this was the beginning of a situation in which the plaintiff found that since the defendant had not proactively responded to Mr Ferguson's request to organise a settlement date, the bank for privacy reasons would not talk to the plaintiff about the issue, and the plaintiff was left to pursue the defendant to cooperate and to provide the information which was necessary to facilitate a settlement by the paying out of the mortgage and the transfer of the property to the plaintiff. 94Mr Shute confirmed to the plaintiff on 6 May 2013 that due to privacy concerns, the bank's position was that it would not communicate directly with the plaintiff. Mr Shute said that he would need to continue to deal with the defendant until the position had been resolved. The plaintiff's reply on 6 May 2013 was to say to Mr Shute that she was happy for Mr Shute to ask the defendant if the bank could deal with her. 95On 16 May 2013 the defendant again raised with the plaintiff the need to make payments in relation to the mortgage and stated: "Under the consent orders you are required to put in $3,000 a month which you have never done. If in default then house will be sold." 96The court pauses here to note that while, on the one hand, the Family Court orders did require the plaintiff to make payments to the mortgagee, on the other hand, the need for those payments to be made would come to an end if the defendant would cooperate with the plaintiff. Indeed, on a number of occasions prior to this time the defendant had been requested to participate in a conventional settlement in order to repay the mortgage and transfer title to the property to the plaintiff. 97The plaintiff said to the defendant by email on 16 May 2013 that she had spoken to Andrew, which the Court assumes to be Mr Shute, and needed the house to be transferred so that she could start making payments. The plaintiff complained about the defendant holding up the transaction. It appears from the position taken by the plaintiff that her situation was that she needed to obtain a transfer of the property so that she could raise money on security of the property in order to permit her to finance the making of payments. 98On 23 May 2013 the defendant advised the plaintiff that the mortgage was now in default. He referred to an email from the National Australia Bank which was part of the email chain sent to the plaintiff. The defendant again referred the plaintiff to orders 4 and 11 made by the Family Court. He added, "This is a formal notice to you". 99The position of the defendant at this point is perplexing. On an interlocutory application, in the absence of the defendant being able to give a full explanation of his conduct in evidence, and in the absence of cross examination of the defendant, the court should be wary of speculating as to the motivations of the parties, but from this point it appears clear that the defendant was taking the stance that mortgage payments had to be made on a regular basis and if they were not made the position would be that order 11 of the Family Court orders would be triggered. It is hard to understand why the defendant did not comply with the prior requests that were made to him to implement order 3. 100In this regard the court notes that there may be complex questions that arise in relation to the interrelationship between the various orders that the Family Court made. Ultimately, it would properly be a matter for the Family Court to interpret its own orders. 101However, it is a general proposition that a party to an agreement is not entitled to rely upon circumstances brought about by the party's own breach of agreement. 102It is not necessary to come to any final view about this issue on an interlocutory application, but as at the date 23 May 2013 the matter of trying to achieve the implementation of order 3 had been in the hands of the plaintiff's solicitors for some four months. Proper requests had been made of the defendant that he perform his obligations under order 3. It is true that his Family Court application appears to have intervened, but the position is reached where, as at the end of May, if the defendant cooperated to effect the repayment of the National Australia Bank loan and the transfer of the property to the plaintiff, there would have been no need for further repayments to be made to the National Australia Bank. Indeed, as has been noted earlier in these reasons for judgment, the Family Court orders themselves expressly provided that orders 4 and 11 would cease to have effect if order 3 was implemented. 103Also on 23 May the plaintiff sent an email to the defendant in which she said: "I have to have your permission to speak to Andrew, he will not deal with me - I have told you this and each time I call you have not given permission." 104The court is of the view that the appropriate response on the part of the defendant at this point was to cooperate with the plaintiff to provide whatever information was reasonably necessary to put Mr Shute of the National Australia Bank in contact with Mr Ferguson of Sparke Helmore to enable the repayment of the mortgage and the transfer of the property to occur in the ordinary way. 105Further, on 23 May, the defendant in an email to the plaintiff said: "If you have something to say then put it in writing and I can pass on. Andrew is my banker generally so you cannot have direct access. In any case, the Orders are clear. You have not made any payments since November 2012." 106It is hard to avoid the conclusion that at this point the defendant had decided to be obstructive. He had committed himself, at least provisionally, to the course that he would not cooperate to permit the implementation of order 3 because no payments had been made since November 2012. 107The plaintiff said, again on the same date, 23 May 2013: "I can not afford a $680,000 mortgage, hence the reason I need to pay down so I can afford. I will do this when it is transferred. How do you expect me to fix this if you will not give me access to him?" 108The court is of the view that that was a reasonable course for the plaintiff to take. In any event, given that the test is whether it is reasonably arguable that the plaintiff's equitable interest in the property survives, it is proper for the court to conclude that it was incumbent upon the defendant to act reasonably in the implementation of the Family Court's orders. 109There is a general principle that each party to any agreement will do what is reasonably necessary to enable the other party to enjoy the fruits of its entitlements under the agreement. It is not improbable that a woman in the plaintiff's position who has recently been divorced will not have access to funds to pay mortgage payments on an ongoing basis, when she may be able to meet that obligation if she is able to refinance. 110It appears from the evidence that the position of the plaintiff was that she could fund a mortgage of $400,000 from the Commonwealth Bank of Australia but for cash flow reasons had to apply other assets available to her to, as she said, pay down the mortgage so that she could continue on a viable basis into the future. 111It appears that the Family Court judgment on the defendant's application to vary became available on or about 24 May 2013. The effect of that judgment by Stevenson J was to summarily dismiss the application made by the defendant. 112On 25 May 2013 the plaintiff advised Mr Shute of the National Australia Bank and Mr Ferguson that she had received the judgment of the Family Court, which reinforced the orders made in October 2012, and that the plaintiff would like to proceed with the transfer of the property. She said that she would notify the Commonwealth Bank of Australia on the Monday following that the transaction could move forward. 113On 27 May, the plaintiff advised Mr Ferguson that she had spoken to the Commonwealth Bank of Australia and she gave him the reference number for the transfer and said that if there were any issues Mr Ferguson could contact a particular number at the Commonwealth Bank of Australia. 114This led to Mr Ferguson on 27 May sending a further email to the defendant. It referred to the original 24 January 2013 email that Mr Ferguson sent to the defendant. It said: "So that we can arrange the settlement of the Discharge of Mortgage and Transfer of the property in accordance with the orders dated 25 October 2012, could you please return to us the signed and witnessed Transfer. A further copy of the Transfer is attached." 115A further request was in these terms: "Please advise if you are prepared to provide the original signed and witnessed transfer to us on loan so that we may attend to stamping at the Office of State Revenue prior to the settlement. If not, as previously advised we are happy to receive the transfer on settlement. Arrangements have been made with both the CBA and NAB for the settlement to proceed pending confirmation from you that the transfer has been signed." 116That was a perfectly orthodox and conventional request for the plaintiff's solicitor to make to the defendant. What was required was for there to be a positive response to that request by the defendant to indicate that the transfer had been signed and to otherwise co-operate in the transfer. 117On the same date Mr Ferguson sent an email to Mr Shute in which he said that he was awaiting confirmation from the defendant that the transfer had been signed and that the defendant was ready to settle. It appears from the evidence at this stage that upon co-operation by the defendant the matter could have been settled. 118Later on 27 May, the defendant responded to Mr Ferguson's email. He said: "We have already been over this ground a number of times including a lengthy teleconference. As said before, we will advise you as soon [as] a settlement date is made. I have not received any notice that 'arrangements have been made with both the CBA and the NAB for the settlement to proceed pending confirmation from you that the transfer has been signed.' I assume you continue to claim that you are not representing Poulos on Family Law matters however for your information the decision of Stevenson J of 24 May 2013 will be appealed so there is no stay on interim orders sought." 119Again, while it is not appropriate to speculate about the defendant's motivation, it can at least be said that this response was not co-operative. 120On 27 May, the National Australia Bank's Mr Shute advised Mr Ferguson, in response to Mr Ferguson's email concerning the possibility of settlement, that Mr Shute had forwarded all of the correspondence provided to date to a Victorian division of the bank and that Mr Ferguson would be apprised of developments as they occurred. 121What then appears to have happened is that the defendant raised an issue about the compliance with safety requirements of the pool that had been constructed on the property. It is not necessary to go into the correspondence concerning this issue in detail. It is clear from the evidence that the defendant sought advice from the local council about the satisfaction of the pool of relevant safety requirements and that the defendant raised that matter as an issue justifying deferring transfer of the property to the plaintiff. 122On 28 May the defendant raised the pool issue with Mr Ferguson. The plaintiff replied on the same date that she would take over the pool requirements and requested that the defendant notify Mr Ferguson when the document, which must mean the transfer, would be sent, so that the plaintiff could organise banks, et cetera. 123The defendant's response on the same date was, "Not permitted. It needs fixing now". 124The plaintiff responded on 28 May 2013 asking: "When are we receiving transfer forms?" The defendant's response was: "Ask your lawyer - how should I know?" He said that it had been confirmed that the pool needed to be fixed and "no conveyance can occur before then". 125On 28 May 2013, Mr Ferguson advised the defendant by email: "We will book settlements with both CBA and NAB and advise you details of venue, date and time. Will you be attending the settlement personally or will you have an agent?" 126On the same date, by email, Mr Ferguson also advised the defendant that his obligation to transfer the property to the plaintiff pursuant to the Family Court orders was not subject to swimming pool compliance. The defendant's response to Mr Ferguson was: "How do you know - have you read the Orders?" 127There is no need to make undue comment about this evidence concerning the defendant's responses to the various matters that were being put to him save to say that it is clear that he had decided not to be co-operative with the requests that were made to him by the plaintiff and her solicitor to participate in and facilitate the transaction contemplated by order 3. 128Mr Ferguson sent an email to Mr Shute on 28 May in which he requested "an indicative payout figure for the mortgage as at today's date". He also, by a separate email on that day, advised the defendant that the disclosure requirements in relation to swimming pool compliance certificates had not yet commenced. Furthermore, there was no contract of sale in this matter, so there was no need to attach any certificate of compliance to any such contract. The defendant's response was to assert to Mr Ferguson that the direction from the council was clear and that the swimming pool issue had to be dealt with so that the defendant was not left with any residual liabilities. 129Later, on 28 May, Mr Ferguson wrote an email to the plaintiff in which he said, in part: "Also, Andrew Shute from the NAB just phoned. He has spoken to Hans [the defendant] about organising the discharge of the mortgage and Hans has advised Andrew he will not provide authority for the NAB to proceed with the discharge. Hans advised Andrew that you are in default of your obligations pursuant to the Family Court Orders in that you have failed to make repayments on the mortgage at $3,000 per month. ...We confirm our advice to you that you should be complying with your obligation to make mortgage repayments until..." 130It is clear from this evidence, which is provided to the court on an interlocutory basis, that the defendant had decided to adopt a position that because the plaintiff was not complying with the orders to pay the mortgage, that he was entitled not to co-operate in the completion of the arrangements necessary to effect order 3. Whether or not that position as taken by the defendant was correct as a matter of law need not be decided by the court at this time. 131The court is of the view that more likely than not the correct legal position was that the defendant remained liable to perform his obligations under order 3, and that was particularly so because the plaintiff had acted consistently since the beginning of 2013 to try to cause the defendant to comply with order 3, and for whatever reason he chose not to do so. 132The fact that the issue of non payment of mortgage to the National Australia Bank was becoming pressing, was at least in part caused by the earlier failure of the defendant to implement order 3. 133Whether or not that view is correct, the court is satisfied that it is sufficiently arguable that the court should proceed upon the basis that the plaintiff has not clearly lost her equitable estate in the property for the purposes of this application. 134Later, on 28 May, a representative of the National Australia Bank, in an email to Mr Ferguson, advised Mr Ferguson that there were four loans to be paid out on discharge of settlement, and set out in relation to the four loans the breakdown and total indicative payout figure as of that date. Including a discharge fee, the total payout figure was $709,679.79. 135Later still, on 28 May by email, the plaintiff asked Mr Shute: "Did Hans give you any indication why he is holding up the transfer of the property? I just need to understand so that we can move forward." 136Further, on 28 May in an email from the plaintiff to Mr Shute, the plaintiff said that she had spoken to Mr Ferguson and both of them were unclear as to why the defendant was not wanting to sign the transfer. It appears from the evidence available to the court at this time that there was some level of co-operation between the National Australia Bank and Mr Ferguson and that the Commonwealth Bank of Australia had been advised and was prepared to co-operate with settlement. The one missing step was the provision of a transfer signed by the defendant. 137Mr Shute replied, also on 28 May, in part: "Reasons behind Hans' unwillingness to sign transfer/sign settlement and discharge instructions is not a matter for the bank. This is a matter for the respective legal partners to deal with and inform their respective clients. Matter within NAB has been escalated and is currently the subject of further review." 138The plaintiff responded to Mr Shute by saying: "Thanks for the update - as I have mentioned to you 'I do NOT want this to go into default - this is not my intention. If the bank can not order the transfer to me, then I will pay the mortgage down to prevent from going into default. I have asked that you assist me on this matter as I do not have legal representation. Andrew Ferguson has been employed to conduct transfer only, is not employed for any other matter. You have frightened me when you say the matter has escalated - can you explain this asap please." 139At this point the plaintiff was indicating to the bank that in order to avoid a default situation she could pay out the mortgage directly. At this point the plaintiff does not appear to be making that payout conditional upon receiving the transfer to which she was entitled under order 3. However, to effect a payout and to avoid the loans going into default, it would be necessary for the National Australia Bank or the defendant to co-operate with the plaintiff. 140Mr Shute's reply of 28 May 2013 was, in part: "If you choose to make loan repayments and restore the current arrears, then the matter will not be handled by the bank's collections area. I would however suggest you take some professional advice on this." 141On 3 June 2013, the defendant wrote an email to the plaintiff in which he said: "Hate to spoil your day - but mail had another legal notice". 142On 7 June Mr Ferguson advised the plaintiff by email that he had a call from Mr Shute at the National Australia Bank and that Mr Shute wanted to advise Mr Ferguson that the legal team at the National Australia Bank had looked at the matter and had advised that, unfortunately, because the mortgage was in the defendant's sole name, they were unable to progress any arrangements for the discharge of the mortgage and transfer of the property without the defendant's authority. 143The National Australia Bank, apparently, also informed Mr Ferguson that if the mortgage continued to remain unpaid, the National Australia Bank was more likely than not to exercise its rights under the mortgage. 144Accordingly, as of the beginning of June 2013, the position was this: the defendant had refused or failed to sign a transfer or to sign an authority to the National Australia Bank to participate in the settlement contemplated by order 3 by releasing the title of the property to the plaintiff. The plaintiff had tried to deal with that by offering to the bank to simply pay out the mortgage. The bank had taken the position, which it was probably entitled to take, that privacy requirements prevented it from co-operating with the plaintiff at all. 145The position had then been reached in the nature of a Catch-22 situation from the plaintiff's perspective, that the defendant was taking the stance that she was in breach of the obligation under order 4 to pay mortgage payments. She was unable to pay mortgage payments without being able to raise finance on the title to the property. The defendant was refusing to implement order 3. The plaintiff responded by being prepared to pay out the mortgage to get the transfer of the title. The bank would not permit that. 146The ultimate point reached was that for the transaction to proceed at all in any way it required the co-operation of the defendant. 147An important aspect of this finding is that the biggest complaint the defendant has put before the court is that the situation of the National Australia Bank loan being in default was (a) the justification for him unilaterally selling the property in purported performance of order 11 and (b) so long as the default continues, his financial reputation is in jeopardy, so that the court should decline, for reasons of the balance of convenience, to extend the interlocutory order that has been made. 148However, at least on an interlocutory basis, it appears that the defendant was entirely the author of this outcome by not cooperating with the plaintiff in enabling her, at the very least, to pay out the mortgage. 149It is probably not necessary to track through all of the later correspondence between the relevant parties, because it is clear from the evidence that, absent the cooperation of the defendant, nothing was going to happen. One could note, for instance, that on 7 June 2013 the plaintiff sent an e-mail to Mr Shute: "Andrew Ferguson has notified me that the bank can not move forward with transfer without Hans's consent, therefore to stop this matter progressing to a situation that is not great for anyone I will start paying the mortgage as I don't want to deal with Hans. Can you let me know what needs to be paid and where I pay it?" 150There will be no surprise that in his response on the same day Mr Shute said: "Due to privacy, and under strict instructions from the Bank's legal division, I am not able to provide any detail regarding Hans' personal financial details". 151Accordingly, the plaintiff had difficulty in trying to pay the mortgage on an ongoing basis. She was unable to do so without the cooperation of the defendant. The plaintiff asked Mr Shute on 7 June: "Then how do I do this?" Mr Shute responded on the same day: "I'll approach Hans and ask him to provide a written authority to release information. If he's prepared to do so then I'll advise you accordingly". 152The plaintiff said: "Thanks so much for your help". 153On the same date an e-mail was written by the defendant to the plaintiff: "You have no right to deal with my banker, just like I don't ring up your banker at... the CBA. I have asked you before to desist and seek any information directly from me. Any information I provide will be supported by third parties so you have no issue there." 154Accordingly, the evidence establishes that even when the plaintiff attempted to avoid the outcome of a loan default by making payments of an ongoing nature, she was thwarted by the conduct of the defendant. The inference must be that Mr Shute asked the defendant for the authority to deal with the plaintiff in order to enable the mortgage payments to be made, but the defendant refused to give that authority. 155The defendant advised the plaintiff on 10 June 2013 that he had a draft appeal from the Family Court order dismissing his application to amend the Family Court orders. On 19 July the plaintiff asked the defendant directly to provide her with the contact so that she could find out how to move forward on paying the loan, as the plaintiff had made the request three times and had been blocked by the bank. 156She was advised by the defendant on 23 July 2013 that Mr Shute was no longer responsible for the defendant's accounts. Apparently, and understandably, exasperated, on 28 July 2013, the plaintiff sent an e-mail to the defendant in which the plaintiff said formally: "In accordance with orders made on 25 October 2012 you are required to transfer the property to me and I, in turn, am required to supply a bank cheque issued by an Australian bank sufficient to discharge the mortgage in full. I require that you comply with the orders. I am ready to comply and repay amounts in full". 157The situation at this stage was that the National Australia Bank had issued default notices on 24 June 2013, which had been provided by the defendant to the plaintiff on 8 July 2013. Attempts had been made by the plaintiff in order to do something to respond to those notices, as has been recounted in these reasons for judgment. 158On 9 August 2013 the defendant wrote an e-mail to his estate agent which attached a feasibility for the redevelopment of the property. He had earlier, on 5 August 2013, sent an e-mail to the plaintiff asserting that he was not in breach of his obligations and said: "Please provide evidence that you are able to settle as required by the orders. Your word is worthless and irrelevant." 159The court is of the view that the plaintiff was not required to provide any evidence of her ability to settle prior to any settlement appointment. The proper course for the defendant, even if he was doubtful about the plaintiff's financial capacity, was to cooperate with the requests that had been made of him to facilitate a settlement conference. If at that time the plaintiff was not able to complete, the matter would have been made obvious. 160On 6 August 2013, in response to the plaintiff's answer that she was not required to provide evidence of her ability to settle, and a request that the defendant give her a date to settle, he said: "I am extremely busy today so will respond tomorrow afternoon". 161It appears from the evidence that the defendant then took steps to find a purchaser for the property, and did not make any further communication to the plaintiff until 11.36 a.m. on 12 August 2013, in which he copied to her an email which he sent to the solicitors for the bank. That e-mail referred to an attached, signed agency agreement and coversheet of a signed contract of sale. 162As has been stated earlier in these reasons, the defendant effected the contract exchange for the property at 10.00 p.m. that evening. The court, on the basis of the evidence before it, and at an interlocutory level, is satisfied that there is sufficient evidence that the plaintiff was able to finance the implementation of order 3 from about the date of the original e-mail from the Commonwealth Bank of Australia, referred to above. 163The plaintiff has tendered Exhibits D, E and F which establish, as of now, that the plaintiff could finance a repayment of the National Australia Bank loan and the court infers, from the evidence contained in those documents, that more likely than not, the plaintiff had that ability throughout the period in question. Accordingly, the court finds that, at an interlocutory level, the plaintiff has established a prima facie case that her equitable entitlement in the property remains on foot. 164In those circumstances it is necessary for the court to consider the balance of convenience. In favour of continuing the injunction is the fact that if the injunction is not continued, the defendant will be able to complete the sale to Mr Singh. Mr Singh will be able to become the registered proprietor by reason of registering the transfer. He would then acquire an indefeasible title. That title would defeat the plaintiff's claim in respect of the land, and that would leave her in the position where she would lose her home, which is also the home of her children, and would be left with the possibility of a damages claim against the defendant. 165The court, secondly, is entitled to take into account that there are some grounds for belief that the sale is at an under value. The court cannot put that reason very highly, but it is at least true, on the appearance of the valuation evidence that has been given, that the sale price is at the bottom of the available range and, in the circumstances, the giving of some two years deferral to the payment of the balance of the purchase price, further reduces the value of the consideration for the sale. 166Furthermore, the terms of the contract between the defendant and Mr Singh involve a relatively substantial risk in that it appears to be contemplated that the property will be redeveloped and sold, and if that redevelopment is unsuccessful, in the sense that the costs expended are not recouped by any sale, the value of the property will be diminished, and the capacity of Mr Singh to repay the balance of the purchase price may fall. 167Furthermore, it is not clear where the plaintiff and her children would be able to live. The contract with Mr Singh provides for vacant possession and the money that would be left over to pay her entitlements will not be available for up to two years. 168Weighing against the continuation of the injunction on the balance of convenience is the existence of the National Australia Bank loan which is now in default. 169On balance, the evidence that has been examined in some depth on this interlocutory application suggests that the fact of the loan being in default lies at the feet of the defendant. However, the fact remains that the National Australia Bank has not been repaid. It will have a right to exercise its power of sale, and a mortgagee sale may lead to an even lesser price than was agreed to be paid by Mr Singh. So long as the plaintiff maintains her claim, and Mr Singh asserts the legitimacy of his contract, then there would be a risk that the National Australia Bank would not be repaid and the power of sale would be implemented. 170However, against this, the court has been informed by counsel for the plaintiff that she, having the capacity to pay out the National Australia Bank mortgage, is prepared to do so, even if she must then abide the completion of the present proceedings, probably including Mr Singh, to determine who has a priority. 171There are alternate steps which may be taken to avoid the National Australia Bank exercising its mortgagee's powers, although this would require the cooperation of the National Australia Bank. 172The court is of the view that any order which is made must be subject to an appropriate regime, whereby the plaintiff pays out the National Australia Bank. The court will hear submissions as to what those orders should be. 173As the plaintiff has agreed to take appropriate steps in that regard, her conduct will neutralise the factor, which is contrary to the continuation of the injunction, which flows from the possibility of the National Australia Bank exercising its security rights. 174One factor raised by the defendant against the balance of convenience being in favour of the continuation of the injunction, was the continuing damage to his commercial reputation. The observation is permissible that that is the result of his own conduct. However, it has to be noted that the effect of the plaintiff paying out the National Australia Bank mortgage will be to remove the continuing damage to the commercial reputation of the defendant, of which he complains. 175Finally, as the defendant has entered into the contract with Mr Singh, the continuation of the injunction will put the defendant at risk of being in breach of contract. It is possible that Mr Singh may be entitled to sue the defendant, and if it is the case that the contract price is at an under value, the prospect that the defendant may have subjected himself to the risk of having to pay substantial damages may be quite real. 176However, it can be said first, for reasons explained already, that the defendant has created that situation himself. He could always have avoided that outcome by relenting, and on any one of a great many occasions, cooperating with the plaintiff to achieve the implementation of Order 3 of the Family Court orders. 177Furthermore, if it comes to it, the plaintiff has offered an undertaking as to damages and, provided her equity in the property is preserved, that undertaking must be regarded as being valuable. 178No doubt in future proceedings the plaintiff's legal advisers will be cautious to try to minimise the plaintiff's risk from having to give the undertaking as to damages. 179In all the circumstances it is the judgment of the court that, on an interlocutory basis, the ex parte orders made by the court should be continued.