Tuesday, 22 July 2008

Federal Magistrates Court case: injuncting the boat

In the recent Federal Magistrates Court case of Deakin and Parry, Federal Magistrate Burnett had to consider what to do with a ship, the Z, which the husband had previously falsely claimed to authorities had been sunk for which he had been fined $4000.

His Honour said:

It seems, when one has regard to those matters, that there is a real basis for concern on the part of the wife that the husband may seek to do something with the vessel.
Going then to first principles, in order to obtain an injunction, of course, it is necessary to establish that there is a serious issue to be tried. There is undoubtedly a serious issue to be tried in this case. The vessel, arguably, is matrimonial property and the issue in relation to it is the manner in which its value should be apportioned between the parties having regard to the provisions of the Family Law Act. As to where the balance of convenience lies, it strikes me that having regard to the history which is apparent from the events reported in Exhibit 1 that there is, indeed, a real concern that the father may seek to do something with the vessel between now and trial which may result in either the vessel's loss, damage or disappearance and that in those circumstances it is appropriate that the vessel be protected for the benefit of the parties for the purpose of litigation and, to that end, I am content to make an order ...

as follows:

"That the parties shall forthwith appoint a single expert for the purpose of valuing the vessel “Z” being a 13 metre full cabin steel hull vessel Australian registration [1] and Queensland registration [2] and in the event that either party fails to engage such expert, then the other party shall be at liberty to call an expert valuer as an adversarial expert.
(11) That until such time as the vessel has been inspected by the single expert or valuer the husband shall be restrained and an injunction issue so restraining him from moving the vessel from its present location and thereafter the husband shall not move the vessel without providing to the solicitors for the wife the date of such proposed move and the p place to which it is intended to move the vessel."

[Disclosure: Counsel in this report is described as being Mr Page. It is not me, but presumably well known Brisbane barrister, Mr Graeme Page, SC.]

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