Agius v Agius

1. [1]

   In these proceedings the Plaintiff, Francis Agius, approaches the Court as a matter of urgency to seek a suite of orders so as to, first, serve or attempt to serve his estranged wife, the Defendant, Therese Agius, with a Summons, Notice of Motion, and supporting affidavit evidence and, further, obtain a freezing order in the form of Schedule A attached to the Notice of Motion.

Background to this application

1. [2]

   The facts in short compass are these. The Plaintiff and the Defendant remain married but have been estranged for a number of years. Mr Agius is presently 73 years of age and his daughter, Rachel King, in an affidavit sworn 11 February 2026, deposes that he is in poor physical health. Significantly, he cannot read or write English.

2. [3]

   Ms King deposes that since about 2021, the Plaintiff and the Defendant have been estranged, giving rise to the Defendant leaving the matrimonial home in 2022. This occurred after the previous matrimonial home in North Kellyville was sold. Ms King states that in 2024, after her mother’s hairdressing salon was sold and she apparently ran out of money, she moved back into the former matrimonial home located in Kenthurst but moved out shortly thereafter. Although Ms King is not on speaking terms with her mother, she understands that her mother is in a relationship with a gentleman in Queensland and regularly travels there to spend time with him.

3. [4]

   Meanwhile, the Plaintiff continued to live in the Kenthurst property.

4. [5]

   Almost a week ago, on 5 February 2026, Ms King received a telephone call from her father. He told Ms King that he had discovered that the Defendant had sold the Kenthurst house. The affidavit evidence sets forth conversations with the Plaintiff which I need not set out for the purposes of this judgment. It is sufficient to record that he was shocked and panicked by this discovery.

5. [6]

   At the time the property was sold, it was held between the Plaintiff and the Defendant as tenants in common. Initially, it was purchased by the Plaintiff and Defendant as joint tenants, as is commonly the situation between husband and wife. Nevertheless, Ms King deposes in her affidavit that in circumstances where the proceeds of sale of the North Kellyville property were apparently gambled away by the Defendant, Ms King and her siblings prevailed upon their father to sever the joint tenancy and put in place an enduring power of attorney. Moreover, in around April 2025, the Plaintiff changed his will to ensure that the Defendant would not receive any money under it.

Bank transfers

1. [7]

   Ms King’s affidavit reveals that on 6 February 2026, Ms King and her father went to the Commonwealth Bank branch at Dural and obtained a copy of transactions for the period of 10 December 2025 to 6 February 2026 in relation to an account ending #3685, and from 11 December 2025 to 5 February 2026 for an account ending #4611.

2. [8]

   Mr Gray of Counsel, who appears on this application ex parte for the Plaintiff, has carefully taken me through the material contained in Exhibit RK-1. That material discloses the following.

3. [9]

   First, a registered transfer dated 2 February 2026 confirms that the former matrimonial home in Kenthurst was sold for $4.3 million. Thereafter, an amount of $1,929,496.91 was received from a PEXA settlement into a Pensioner Security Account held in the name of the Plaintiff ending #3685 (Account #3685).

4. [10]

   Almost immediately thereafter, the sum of $1,929,727.08 was withdrawn from Account #3685 and transferred to a different account, ending #4611, at the Commonwealth Bank (Account #4611), using what appears to be a Commonwealth Bank app. Account #4611 is an existing joint account held by the Plaintiff and the Defendant, also styled as a Pensioner Security Account. The records of that account disclose the receipt of that sum on 2 February 2026 from Account #3685.

5. [11]

   On the same day, that amount was then transferred to an innominate Commonwealth Bank account ending #1528 (Account #1528).

6. [12]

   That is not the end of the story.

7. [13]

   The bank accounts also reveal that on 4 February 2026, an amount of $178,970 was received by the Plaintiff into Account #3685 from a transaction partially described as “Round Corner Dur”, which Mr Gray submitted is a reference to a shopping centre in Dural known as Round Corner. A real estate agent runs a business from Round Corner called Manor Real Estate. That agency acted on the sale of the Kenthurst property.

8. [14]

   Mr Gray also submitted that the agency is run by, or employs, a person named “Sandy”, who was or is a friend of the Defendant. The amount of $178,970 would most probably comprise roughly 5% of a deposit for the purchase of a property, but I have not given further consideration to this issue. For the purposes of this application, it seems relatively clear that that amount was the deposit released after settlement.

9. [15]

   Similar to the treatment of the $1.9 million on 2 February, the sum of $179,261 leapfrogged from the Plaintiff’s account into Account #4611 held between the Plaintiff and the Defendant. Immediately thereafter, $179,161 was transferred into Account #1528.

10. [16]

    The Plaintiff is unaware of Account #1528, and certainly the evidence of Ms King makes it plain that it is not held, nor has it ever been held, in the Plaintiff’s name.

Findings

1. [17]

   Accordingly, in circumstances where:

   1. (1)

      the evidence suggests that, somehow, the Kenthurst property was sold surreptitiously, unbeknownst to the Plaintiff despite his occupation of the home;

   2. (2)

      the Plaintiff was the registered proprietor of 50% of that property as a tenant in common;

   3. (3)

      he was accordingly entitled to half of the net proceeds of the sale of the property; and

   4. (4)

      the Plaintiff has been deprived of those sale proceeds by their withdrawal from his account into a joint account, and then into an account beyond his control,

2. [18]

   The other factors of which I would need to be satisfied, even at this preliminary stage, in order to impose something as serious as a freezing order are the real risk of dissipation, urgency, and the balance of convenience.

3. [19]

   In circumstances where it is apparent from the documentation contained in Exhibit RK-1 that not only is there a real risk of dissipation, but that dissipation has already occurred, putting the money beyond the control of Plaintiff, that element is satisfied on a prima facie basis.

4. [20]

   The balance of convenience is satisfied for the same reason, as there is authority that establishes that the strength of a prima facie case can also inform the Court’s assessment of the balance of convenience: Y & Z v W (2007) 70 NSWLR 377; [2007] NSWCA 329 at 383 [29] (Ipp JA).

5. [21]

   For those reasons, I am satisfied that the relief sought in the Notice of Motion should be granted.

6. [22]

   For completeness, and insofar as another judge may hear this matter when it next comes before the Court, I confirm that Mr Gray has also read the affidavit of Sheena Vinden affirmed on 11 February 2026 and handed up a set of draft Short Minutes of Order. The terms of the Short Minutes of Order provided to me contained orders in relation to the filing of documents. Those orders are no longer sought in circumstances where those documents have been filed and the filing fees have been paid prior to Mr Gray appearing in Court this afternoon.

Orders

1. [23]

   I make the following orders:

   1. (1)

      The Notice of Motion filed on 11 February 2026 be made returnable and heard instanter.

   2. (2)

      The time for service of the Notice of Motion and the affidavit in support of Rachel King affirmed 11 February 2026 be abridged to 6 pm on 12 February 2026.

   3. (3)

      The Plaintiff be granted leave to effect service of the Summons, Notice of Motion, the Affidavit of Rachel King affirmed 11 February 2026, the Affidavit of Sheena affirmed 11 February 2026 and any orders made by the Court on 11 February 2026 with respect to the Notice of Motion by:

   4. (4)

      Upon the Plaintiff by its Counsel giving the undertakings referred to in Schedule A of the freezing order attached to these orders, a freezing order against the Defendant in the form annexed and marked “A”.

   5. (5)

      An order that these orders be entered forthwith.

   6. (6)

      The Notice of Motion be listed before the Common Law Duty Judge at 10 am on 17 February 2026.

   7. (7)

      Costs reserved.

   8. (8)

      The Plaintiff has liberty to relist the matter on 12 hours’ notice.

   9. (9)

      The parties have liberty to relist on 3 days’ notice.

   10. (10)

       A copy of the transcript of today is to be obtained by the Plaintiff and the Plaintiff is to provide a copy of that transcript to the Defendant within 24 hours of its receipt.