By Craig Nicol and Keleigh Robinson
Property – Litigation lender’s application to vary final consent orders that were made 4 weeks before the husband’s bankruptcy – Wife (who knew of husband’s precarious financial position) restrained from dealing with two of four properties
In O Pty Ltd v Calvo [2026] FedCFamC1F 295 (7 May 2026) Austin J heard an application by the husband’s litigation lender for injunctive relief against the wife.
Family law proceedings were commenced in May 2024. The husband was advanced $90,000 from the lender, paid to the husband’s lawyers. The husband executed registrable second mortgages over four properties, but they were not registered ([7],[8]).
Final orders were made by consent on 8 July 2025 for the wife to retain all four properties. The husband informed the lender of the orders two weeks after they were made. He was then made bankrupt, having liabilities of approximately $4.5 million ([10]-[12]).
Austin J said (from [31]):
“The applicant is ‘affected’ by the final orders… because… it may not be able to recover the debt owed to it (s 79A(4))…
( … )
[35] The wife fails to demonstrate the applicant has no reasonable chance of success in prosecuting the claim for relief under s 79A(1) of the Act because, arguably either:
(a) there was a miscarriage of justice by the suppression of evidence (s 79A(1)(a)) – being the husband’s apparent failure to disclose… the true extent of his enormous liabilities…; or
(b) the husband has defaulted in carrying out an obligation imposed upon him by the final orders (s 79A(1)(c))…
[36] The registrar was not empowered to make the final orders unless satisfied that… the orders were just and equitable (s 79(2))… The identity and value of the husband’s… liabilities were part of the ‘circumstances’ which bore upon the question of whether the orders adjusting the spouses’ property interests were just and equitable…
( … )
[38] It seems unlikely the wife had no inkling of the husband’s financial predicament… The wife did not try to explain… how it was just and equitable for her to have received so much property from the husband under the final orders.”
The wife’s summary dismissal application was dismissed. An injunction was made against the wife disposing of two of her properties. Costs were ordered against the wife fixed at $12,500.
