Abdullayev & Abdullayev

[2024] FedCFamC1F 706

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Abdullayev & Abdullayev [2024] FedCFamC1F 706

File number(s):

BRC 11011 of 2022

Judgment of:

BAUMANN J

Date of judgment:

23 October 2024

Catchwords:

FAMILY LAW – PRACTICE & PROCEDURE – JOINDER – Injunctive relief sought – Orders made for joinder of some parties – Applications for injunctions dismissed

Legislation:

Family Law Act 1975 (Cth) ss 79, 90AF, 114

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.01, 3.03

Cases cited:

Anderson & Kelleher and Anor (No. 3) [2007] FamCA 724

Cassar v New South Wales Crime Commission [2014] NSWCA 356

Palmer v Parbery & Ors; QNI Metals Pty Ltd & Ors v Parbery & Anor [2019] QCA 27

Patton & Patton [2015] FamCA 1083

Tsiang & Wu and Ors (2019) FLC 93-911

Wayne & Dillon & Anor (2008) 40 Fam LR 543

Division:

Division 1 First Instance

Number of paragraphs:

54

Date of hearing:

20 November 2023

Place:

Brisbane

Counsel for the Applicant & proposed Fifth Respondent:

Mr Shoebridge

Solicitor for the Applicant & proposed Fifth Respondent:

Toomey Family Law

Counsel for the First Respondent:

Mr Williams KC, assisted by Mr Eade

Solicitor for the First Respondent:

Barry Nilsson Lawyers

Counsel for the proposed Second, Third, Fourth, Ninth & Tenth Respondents:

Mr Kearney SC & Mr Gray

Solicitor for the proposed Second Third, Fourth, Ninth & Tenth Respondents:

Phillips Family Law

Counsel for the proposed Sixth Respondent:

Mr Rogan

Solicitor for the proposed Sixth Respondent:

Pearson Emerson Family Lawyers

Counsel for the proposed Seventh & Eighth Respondents:

Mr Barnett

Solicitor for the proposed Seventh & Eighth Respondents:

Broun Abrahams Burreket

ORDERS

BRC 11011 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ABDULLAYEV

Applicant

AND:

MS ABDULLAYEV

First Respondent

D1 PTY LTD

Second Respondent

C PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	23 OCTOBER 2024

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That pursuant to r 3.03(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the following corporate entities are joined to these proceedings as parties and to be identified as follows:

(a)D1 Pty Ltd as Second Respondent;

(b)C Pty Ltd as Third Respondent;

(c)E Pty Ltd as Fourth Respondent;

(d)F Pty Ltd as Fifth Respondent;

(e)G1 Pty Ltd as Sixth Respondent; and

(f)D2 Pty Ltd as Seventh Respondent.

2.That the Application to join Ms B Abdullayev, Ms J and Ms K as parties to these proceedings is dismissed.

3.That the wife’s application for injunctive relief set out in the proposed orders 3 to 16 inclusive (marked Exhibit 1 on 20 November 2023), be dismissed.

4.That these proceedings be adjourned for Case Management Hearing at 9.30am (AEST) on 13 November 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane, with a view to determining any further hearing dates for other pending applications.

5.That the competing applications for orders for costs be listed on a date to be fixed.

IT IS NOTED:

A.That the Court acknowledges, as the Reasons for Judgment delivered 23 October 2024 reflect, that the parties have offered to enter into written undertakings to the wife and should be able to do so within fourteen (14) days.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

INTRODUCTION

1. The husband, Mr Abdullayev (aged 46), and the wife, Ms Abdullayev (aged 45), commenced a relationship in 2001; married in 2003 and separated in January 2021.

2. Their union produced four children – Y (now 15 years of age); X (17 years of age); Mr L (19 years of age) and Ms M (20 years of age).

3. Proceedings for property settlement were commenced in September 2022 and because of the size of the property interests, the proceedings were transferred to Division 1 on 12 October 2022.

4. A number of directions were made in response to the wife’s Application in a Proceeding filed initially on 23 December 2022 but further amended on 3 April 2023. In particular, the wife sought to join a number of parties to the litigation, and if joined, sought various interlocutory injunctions pursuant to ss 90AF and 114 of the Family Law Act 1975 (Cth) (“the Act”).

5. Although the Court is aware the parties have been engaged in mediation as recently as 30 September 2024 in an effort to resolve the substantive proceedings, that is not a sufficient explanation for the delay in publishing this Judgment, for which the Court expresses regret.  Certainly, at some level, the Court hoped the parties may have been able to resolve the issues.

   ISSUES FOR DETERMINATION

6. Although the wife’s amended Application in a Proceeding filed 3 April 2023 sought a number of interim orders (in Annexure “A” – orders 1 to 2 and further in Annexure “C” – orders 1 to 44), the proceedings dealt with on 20 November 2023 were of a more narrow focus, best encapsulated by the minute of order proposed by the wife and being Appendix One to these Reasons.

7. The issues crystalised as being:

   (a)should the Court join F Pty Ltd (the proposed Fifth Respondent) as a party to these proceedings.  This Application is consented to by the husband, represented by Mr Shoebridge of Counsel (as he then was);

   (b)should the Court join the interrelated corporate entities, described at proposed orders 1.1, 1.2, 1.3, 1.8 and 1.9 (hereafter described as the proposed Second, Third, Fourth, Ninth and Tenth Respondents) and described at the commencement of these Reasons).  These parties, through their Counsel Mr Kearney SC, submitted that whilst they did not oppose joinder, there was no necessity for them to be joined;

   (c)whether Ms B Abdullayev (the husband’s mother) should be joined as a party.  Counsel for Ms B Abdullayev (the proposed Sixth Respondent), Mr Rogan of Counsel, submitted she should not be joined;

   (d)whether the husband’s sisters Ms J  and Ms K  should be joined as parties.  Counsel for these proposed Seventh and Eighth Respondents, Mr Barnett, submitted they should not be joined; and

   (e)in circumstances where undertakings were offered by entities and persons who may not become parties (depending on the result of the joinder applications), should instead the Court make the injunctions/restraining orders as identified in the minute of order.

   BACKGROUND

8. Reflective of the complexity of the issues in this property case, at Appendix Two to these Reasons is attached a diagram of the “[E Group] Structure”.  The interconnection between the entities so depicted is clear, and for the purpose of these discrete Reasons, it is not presently necessary to provide a description of each entity.

9. Although the wife’s engagement formally arose from her responding to the husband’s Initiating Application seeking various s 78 declarations and ancillary orders under s 79 of the Act, the wife has filed on 3 April 2023 Points of Claim (“POC”) to which the proposed Second to Fourth and Ninth and Tenth Respondents have each filed a Response. The POC comprise 92 pages of pleaded facts or relief.

10. I regard it as fairly uncontroversial to adopt the succinct summary in the wife’s outline of case document filed 10 November 2023 at paragraphs19 to 25, as follows:

    19.Throughout the marriage, the parties resided on (and worked in furtherance thereof) [livestock] properties operated by the husband’s family in […] Queensland.  The husband, and his two sisters, are the children to his mother and late father, the latter of whom passed away [in] 2017.

    20.[In early] 2017 the husband’s late father executed his Last Will, and which followed estate planning advice received by the husband’s parents (the husband’s father had then been diagnosed as suffering [a medical condition]) at some time prior to [early]2016.  One objective of the husband’s father was for his two daughters to receive a cash payment, and the balance of the estate to pass to the husband and to ensure there was no legal impediment to the husband “taking over 100% of the [agricultural] operations”.  The husband’s late father was concerned to protect his estate from any claim by his children’s spouses.

    21.On his death, the husband’s late father left a significant estate consisting of landholdings and [livestock], which was subsequently managed by the husband and wife during the marriage and supplemented by the acquisition of other real property.

    22.In further of that stated objective, aside from a $2m cash payment to the husband’s mother and her retention of other specified personal assets, by his Last Will, inter alia, three testamentary trusts were established (comprising one for each of the husband and his two sisters).  The trusts to benefit the husband’s sisters were to each receive $3,000,000 in cash (payable in instalments), and the [N Trust] (being that for the husband) was to receive the balance of the Estate.

    23.Annexed hereto is a corporate diagram prepared to identify the inter‑relationship of four trust and sixteen entities in which the husband directly or indirectly holds an interest which the wife has estimated to have an approximate value of $500,000,000.

    24.The husband estimated the land holdings and [livestock] bequeathed to the [N Testamentary Trust] at $100,000,000.

    25.That notwithstanding, he quantifies the parties’ property standing for alteration pursuant to sec 79 at just $2,413,604.

    (As per the original)

11. Put simply, the benefits accruing to the husband as a result of the Will of his father Mr O (who died in 2017 over three years before the husband and wife separated) and various transactions designed to implement his testamentary intentions, lie at the heart of establishing whether the interests of the husband and wife, as the husband asserts are in the vicinity of $2.4 million or more in the vicinity of $500 million as the wife estimates.

12. Before dealing with the issues to be determined, some further context is helpful.

    WILL OF MR O

13. The Will of Mr O (as he was known and referred to in the submissions made before me) was dated 13 January 2017 by which his wife Ms B Abdullayev was appointed Executor and Trustee.  Mr O died in 2017, and the carefully crafted Will manifested the Testator’s intention to create four Testamentary Trusts.  In these proceedings, the relevant trust is named N Testamentary Trust, of which the husband is the nominated beneficiary and where:

    (a)Ms B Abdullayev and the husband were the initial Trustees;

    (b)Ms J was the “backup” Trustee with Ms K a further backup Trustee; and

    (c)Ms B Abdullayev and the husband were the initial Principals with Ms J and then Ms K to be “backup” Principals to fill any vacancy.

14. Ms B Abdullayev deposes to the following relevant events:

    (a)Although the E Family Trust was created in 2016 and upon Mr O’s death the Power of Appointment vested in her, with her consent the Trust Deed was varied such that Ms B Abdullayev no longer holds the Power of Appointment;

    (b)Relevantly, the N Testamentary Trust, in which the Will appointed Ms B Abdullayev and the husband as initial Principals, subsequent to separation between the husband and wife, was varied by:

    (i)Deed dated September 2021 whereby the husband could no longer continue as Principal as he conceded he had “suffered an event of disqualification” and upon his retirement the new Principals were Ms B Abdullayev (continuing) and Ms J; and

    (ii)Deed dated September 2021 the then “current” Principals each appointed Ms K as their successor, upon an event of disqualification occurring to either or both of them.

15. As is clear, and seemingly consistent with the intention of the deceased, Mr O, that control of the N Testamentary Trust currently vests in Ms B Abdullayev and Ms J.  It is acknowledged by the husband that this Trust is the primary asset holder from the initial inheritance although the other corporate entities have related entitlements as set out in Appendix Two.

16. In an endeavour to preserve control of the “family asset” in the family, and as the depositions in September 2021 reflect, the trigger for changes of Principals relies upon the occurrence of an “event of disqualification”, which for the purpose of this hearing includes:

    (p)the person suffering a relationship ‘breakdown’ within the meaning of the Family Law Act; or

    (q)the person separating from their Spouse within the meaning of ‘separation’ under the Family Law Act.

    (As per original)

17. These were the triggers for the husband’s exiting.

18. However, Ms B Abdullayev, Ms J and Ms K are concerned about the effect of definition (o) which prescribes as an event of disqualification “any application being made for an order under the Family Law Act in respect of the person”.

    RULES ON JOINDER

19. Rule 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provide “a person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party”.

20. I adopt the well-known comments by Warnick J in Wayne & Dillon & Anor (2008) 40 Fam LR 543 about a similar rule, where his Honour found that “necessary” means something more than “useful” or “expeditious”.

21. In any litigation, but I find particularly where the primary litigators are the husband and wife and any clearly related entities, joining other parties requires a careful consideration of the discretion to join.  Those considerations must include the impact, both financially and collaterally, upon the proposed parties to be joined.

22. Furthermore, even if a party is not joined at one stage of the proceedings, as the litigation continues, there can be developments or specific orders sought which compel, in the interests of procedural fairness, a person to be joined.

    DISCUSSION OF COMPETING PROPOSALS IN RESPECT OF JOINDER

23. Having carefully considered both the written and oral submissions, I will make an order to join the proposed Fifth Respondent F Pty Ltd (with its consent) and the other corporate entities:

    (a)D1 Pty Ltd (proposed Second Respondent);

    (b)C Pty Ltd (proposed Third Respondent);

    (c)E Pty Ltd (proposed Fourth Respondent);

    (d)G1 Pty Ltd (proposed Ninth Respondent); and

    (e)D2 Pty Ltd (proposed Tenth Respondent).

24. These entities can, as now, be represented by the same firm thus reducing costs.  Where the POC identifies a claim against them (and they have caused a Response to be filed) – even though Mr Kearney SC was apt to describe the claims as spurious and with no merit – it is necessary for them to be joined at this stage.

25. I have concluded that the Application to join Ms B Abdullayev, Ms J and Ms K should be dismissed for the following reasons:

    (a)I am not satisfied at this stage, in their roles as current or potential Principals for the N Testamentary Trust, that it is necessary for them to be joined;

    (b)I also accept the submissions of Mr Barnett of Counsel (adopted in joint submissions by Mr Rogan of Counsel) that for these three persons, there is a risk of applications being pursued, once joined, that could be construed as an event of disqualification;

    (c)If that were to occur, I accept the submissions made on their behalf that the consequence for removal of these three Principles (because of the more likely subsequent applications) could have a quite catastrophic effect on the control and management of the husband’s Testamentary Trust; and

    (d)I do not construe the Application to join them, which I will dismiss, as an application “for an order” which attacks their legal position as a Principal – rather, much like a “letter of demand”, it is an an indication that further proceedings might follow.

26. I accept that the wife is not foreclosed, if at some future time, she decides to articulate some relief for specific orders against Ms B Abdullayev, Ms J and Ms K or the Testamentary Trust, from bringing a fresh application for joinder.

27. However, the current application is premature at best.

28. In reaching this conclusion, I am aware that these relations of the husband are likely, because of his evidence of management of the various interests which devolved in large part to him under the terms of his late father’s Will, to be well aware of these proceedings.

29. I am satisfied, that at this stage on the evidence, they have evinced no behaviour which could be construed as seeking to reduce the husband’s interest in his Testamentary Trust as beneficiary, even though they may have legal control under the Deed.  I return to this subject when I next discuss the issue of restraining orders.

30. Finally, it was, in my view, conceded before me that the N Testamentary Trust could be joined to these proceedings at this time.  I am not satisfied it is necessary to do so, but again, if the litigation progresses in a way where orders are sought against the Trust, then the wife may be required to commence a fresh joinder application.

    INJUNCTIVE RELIEF

31. The wife’s Application enlivens the jurisdiction created by the statute at s 114 and/or s 90AF namely:

    (a)under s114(1), the discretion to make such order as the Court considers “proper” and under s 114(3) “in any case in which it appears to the Court to be just and convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate”; and

    (b)under s 90AF, where in proceedings under s 114 the Court is empowered to make an order or grant an injunction, even against a third party of the nature sought by the wife but only if the requirements of s 90AF(3) are satisfied, in particular, the Court being satisfied it is “proper” to order or restrain and it is “just or convenient” to grant an injunction.

32. In this jurisdiction the Full Court decision in Tsiang & Wu and Ors (2019) FLC 93-911 and the principles enunciated at [20]–[27], which of course bind me, are oft quoted. Further an earlier useful discussion was undertaken by Kent J in Patton & Patton [2015] FamCA 1083, when his Honour said:

    28.      The following principles would seem to be well settled by authority:

    a)The applicant has the onus of demonstrating two central requirements, namely:

    i)That the applicant has an existing (or potential) claim to an order altering property interests under s 79 of the Act; and

    ii)An objective risk or danger that the claim may be prejudiced unless an injunction is granted;

    b)There is no “fundamental” or “threshold” question whether a scheme to defeat a judgment exists, to be answered in the affirmative on the balance of probabilities in every case before an order preserving property can be made.  In an inquiry into the risk of disposal of assets, the question of an intention or scheme is but one of a number of factors relevant to the objective risk of disposition to defeat an order;

    c)The Court is required to take into account the balance of hardship and the balance of convenience between the parties and in that context the Court will not usually restrain a party from ordinary business dealings unless there exists a substantial risk of dissipation of assets or some substantial reason justifying such a restriction;

    d)Any injunction granted ought be limited to that which is in the reasonable protection of a legal or equitable right and it is not the function of an injunction to provide an applicant with security in advance of a judgment.

    (Footnote omitted)

    29.In Sieling & Sieling (supra) the Full Court observed:

    The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly.  The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction that is necessary to achieve the protection of the applicant’s interest.  It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim.

    (Citation omitted)

1. As was developed during submissions, a critical factor in this analysis, in this case, is the determination of the existence of the risk and its magnitude, and in that respect the Full Court in Tsiang & Wu and Ors (supra) adopted the statement of principle of McMurdo JA (with whom Fraser and Gotterson JJA agreed) at [119] of Palmer v Parbery & Ors; QNI Metals Pty Ltd & Ors v Parbery & Anor [2019] QCA 27 that:

   119.…involves the evaluation of, rather than the ascertainment of historical facts. The risk of dissipation might justify an order although the probability of the risk eventuating is less than 50 per cent. But, as the risk of dissipation must be a real and not merely a theoretical one, it must have an evidentiary basis.

   …

   A freezing order is interlocutory in nature; it does not involve a final determination of the parties’ positions. Usually it is made in circumstances of urgency in which the court is unable to conduct an extensive and conclusive factual inquiry in a way which is fair to both parties. Where the factual basis for the plaintiff’s case about the risk of dissipation is disputed, the risk will commonly have to be evaluated with the recognition that the factual basis for it is in doubt. Nevertheless, the possibility of the plaintiff’s evidence being correct, considered with other facts and circumstances, might mean that there is a sufficiently serious risk of the frustration of the satisfaction of a judgment as to justify the making of a freezing order. …

   (Footnotes omitted)

2. For the following reasons, I am not satisfied that it is proper or just and convenient to make the orders and injunctions sought because:

   (a)the complexity of the matter and the extensive pleadings, at first blush on the evidence currently available, assert the wife’s claim for relief under s 79 could extend beyond the pool of interests currently identified;

   (b)however, I am not satisfied, on the current untested evidence, that the wife’s claim against potential other interests is at risk or would be prejudiced if the injunctions are not granted.  In that regard, the nature of the interests being extensive real estate (agricultural) and livestock and machinery are in all respects likely to remain intact.  The husband is on notice that the wife is hypervigilant and well represented so as to be alert to any changes that could have a permanent effect on her potential rights;

   (c)the highest the risk rises, at this point on the evidence, is some suggestion the husband communicated to one of the children that he was considering resigning directorship.  That evidence, said to have occurred many months ago, has both been denied by the husband and he has done nothing to suggest any intended resignation; and

   (d)apart from this evidence, the wife’s Counsel contends that a failure by the husband to agree to an injunction creates an inference he is likely to do or plan to do something which would cause prejudice to the wife’s claim.  I disagree.

3. The arrangements put in place in 2017 arising from the Will of Mr O and creating the Testamentary Trust – that had the effect of approximately 90% of significant family assets/holdings vesting in the husband’s Trust – were designed whilst the husband and wife were an intact couple.

4. The wife might assert she can establish the Will and intentions of the Deceased were designed to exclude her claims under s 79 of the Act, if the marriage between the husband and wife ended. The husband says his father’s intentions were manifest and that it was to protect family wealth created over generations.

5. Many timetable issues arise from this competing propositions, however the history of this matter at this stage, and the evidence (although untested) adduced, does not satisfy me that it is proper or just and convenient to make the injunctions sought by the wife as no real risk is established.

6. I will order those Applications be dismissed.

7. Having done so, there is still a necessity for the Court to engage in the dispute about the offer of various interparty undertakings, which I will do so next.

   UNDERTAKINGS

8. During his submissions, Mr Williams KC contended that if the parties who had offered “undertakings” to other parties had accepted that the undertakings should be given to the Court, that would have brought most of the relief sought to an end.

9. When the precise minute of order contended for by the wife in respect of injunctive relief was produced, as I understand the other parties’ positions, they all essentially agreed to give an undertaking – but, save for the husband who is a party – similar terms but not to the Court.

10. The form of injunction sought related to the:

    (a)N Testamentary Trust (3.1 to 3.3);

    (b)P Trust (4);

    (c)E Family Trust (5.1 to 5.2); and

    (d)F Trust (6.1 to 6.3),

    each including a provision that the restraint requires first providing the wife with at least 28 days’ written notice of the action proposed to be taken.

11. The husband, through his Counsel Mr Shoebridge, and broadly consistent with the exchanges in correspondence being collated as Exhibit 2, indicated the husband maintains his offer to provide an undertaking to the Court prescribed in the proposed orders 3.1, 3.2, 5.2, 6.1, 6.2 (on behalf of F Pty Ltd) 6.3, 7.1, 7.2, 11 (on behalf of F Pty Ltd) and 16 (on behalf of F Pty Ltd).

12. Although the relief initially pleaded in the wife’s Application in a Proceeding is slightly different form the minute now sought in Exhibit 1, in submissions:

    (a)Mr Kearney SC, on behalf of the corporate entities, also indicated they were prepared to provide a written undertaking; and

    (b)even though they will not be parties, Mr Rogan for Ms B Abdullayev and Mr Barnett for Ms J and Ms K both confirmed their clients would give an undertakings in essentially the terms sought in the minute.

13. Mr Williams KC advanced the argument that risks of enforcement will arise if the undertakings so offered are not offered to the Court, in that:

    (a)an undertaking to the Court has the same effect as an order of the Court, and as such its enforcement is achieved by utilising the various enforcement options under the Rules, including to found a charge of contempt, as was the case in Anderson & Kelleher and Anor (No. 3) [2007] FamCA 724. I agree.

    (b)enforcing an undertaking given by one party to another, or as is offered in this case at this time, by non-parties (Ms B Abdullayev, Ms J and Ms K) to a party (the wife), operates as an actionable representation enforceable applying the laws of contract (see Cassar v New South Wales Crime Commission [2014] NSWCA 356). As a result, Mr Williams KC says the wife suing on the contract creates delays, costs and, I infer, forum issues – all avoided by having the undertaking given to the Court.

14. In circumstances where I have found, as earlier discussed, that at this stage of the proceeding the Court is not persuaded that it is just and convenient for injunctions to be made (even in the limited and nuanced way sought by the wife in her application), the offer of the undertakings represents a genuine endeavour to provide the wife with some comfort that the husband, and entities associated with him, understand the importance of keeping the wife informed.

15. As Mr Kearney SC, I find, sensibly and pragmatically contended, having offered the undertakings in the context of this matter, any asserted breach or potential breach would enliven the wife’s ability to bring a further application to the Court to seek a formal injunction, and a person in breach of the “contractual” undertaking may find it more difficult to resist such an order.

16. Mr Williams KC points out of course that the wife having to undertake such action after the person has breached the undertaking, might be a futile exercise.

17. The difficulty with that proposition, is the same as the finding already made, that the wife has not established on the evidence at this stage any real risk or intention of the husband or the corporate entities, taking steps designed to defeat the wife’s claims under s 79 of the Act or the more specific relief identified in the Points of Claim.

18. I will make a notation that signed undertakings as offered will be provided to the wife within 14 days from the date of this order.

    FURTHER PROGRESS OF THIS MATTER

19. It is expedient to allow the parties a short time to consider the impact of the orders I make today, before designing a case management plan that could progress these complex proceedings to a final hearing.

20. In that respect, I accept that some of the interlocutory relief sought in the amended Application in a Proceeding has not been dealt with, and was not the subject of submissions before me.

21. For that reason, I am not prepared at this stage to otherwise dismiss the wife’s Application in a Proceeding but will list the matter for case management hearing before me at 9.30am (Queensland time) on 13 November 2024 to hear submissions as to the further steps needed to progress the matter to trial and whether any further relief sought in the wife’s amended Application in a Proceeding is pressed.

22. I do not ignore that the parties have sought orders for costs arising from this interlocutory proceeding. Although my inclination is to reserve the issue of costs to the final hearing, in circumstances where I heard no submissions on costs and the factors under s 117(2A) of the Act to be considered, I will not make any order as to costs, but leave this issue for further discussion before me at the allocated case management hearing.

I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       23 October 2024

APPENDIX ONE

Joinder

1.   That leave be granted pursuant to Rule 3.03(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to join the following parties, and the following parties are hereby joined to these proceedings:

1.1D1 Pty Ltd as second respondent;

1.2C Pty Ltd as third respondent;

1.3E Pty Ltd as fourth respondent;

1.4F Pty Ltd as fifth respondent;

1.5Ms B Abdullayev as sixth respondent;

1.6Ms J as seventh respondent;

1.7Ms K as eighth respondent;

1.8G1 Pty Ltd as ninth respondent; and

1.9D2 Pty Ltd as tenth respondent.

2.   That within seven (7) days of the date of these Orders, the Wife will file and serve an Amended Response to Initiating Application in accordance with the final relief annexed to the Amended Application in a Proceeding filed by the Wife on 3 April 2023 (Application) and marked “B” and the interim relief annexed to the Application marked “C” (amended as necessary upon Orders being made following the discrete hearing before His Honour Justice Baumann on 20 November 2023).

Injunctions
N Testamentary Trust

3. Pursuant to sections 90AF and 114 of the Act, until further or other order of this Court:

3.1the Husband, the sixth respondent, the seventh respondent and the eighth respondent be restrained from exercising as Principal the powers in clauses 19.1, 20, 21.1(b), 21.1(c) and 21.1(d) of the N Testamentary Trust Deed;

3.2the Husband be restrained from exercising as beneficiary the power in clause 13.5 of the N Testamentary Trust Deed; and

3.3the second respondent, whether by itself, its directors, officers, employees or agents, be restrained from exercising as Trustee the powers in clause 13.1 (to the extent the second respondent has the power to pay or apply the while or any part of the capital of the trust fund), 13.2, 13.4, 19.1 and 22.1 of the N Testamentary Trust Deed

without first providing the Respondent Wife with at least 28 days written notice of the action proposed to be taken.
P Trust

4. Pursuant to sections 90AF and 114 of the Act, until further or other order of this Court, the third respondent, whether by itself, its directors, officers, employees or agents, be restrained from exercising as Trustee the powers in:

a.   clause 5.01;

b.   clause 5.02 (to the extent the third respondent has the power to pay or transfer the whole or any part of the Trust Fund as defined);

c.   clause 6.01(b) (to the extent the third respondent has the power to lend any sum or sums out of the Trust Fund as defined);

d.   clause 6.01(c) (to the extent the third respondent has the power to pay or apply the whole or any part of the capital);

e.   clause 10.1;

f.    clause 11.1;

g.   clause 11.2; and

h.   clause 11.3,

of the P Trust Deed, without first providing the Respondent Wife with at least 28 days written notice of the action proposed to be taken.
E Family Trust

5. Pursuant to sections 90AF and 114 of the Act, until further or other order of this Court:

5.1the fourth respondent, whether by itself, its directors, officers, employees or agents, be restrained from exercising as Trustee the powers in clauses 7, 13.1, 13.2, 18.1 and 18.3 of the E  Family Trust Deed; and

5.2the Husband be restrained from exercising as beneficiary the power in clause 22 of the E Family Trust Deed

without first providing the Respondent Wife with at least 28 days written notice of the action proposed to be taken.
F Trust

6. Pursuant to sections 90AF and 114 of the Act, until further or other order of this Court:

6.1the Husband be restrained from exercising as Appointor the powers in clauses 13.3, 19.1 and 19.2 of the F Trust Deed;

6.2the fifth respondent, whether by itself, its directors, officers, employees or agents, be restrained from exercising as Trustee the powers in clauses 7, 13.1, 13.2 and 19.4 of the F Trust Deed; and

6.3the Husband be restrained from exercising as beneficiary the power in clause 23 of the E Family Trust Deed

without first providing the Respondent Wife with at least 28 days written notice of the action
proposed to be taken.
Restrictions on the issuance and transfer of shares

7. Pursuant to sections 90AF and 114 of the Act, until further or other order of this Court, the Husband be restrained from transferring or disposing of his shares in each of the following Companies, without first providing the Respondent Wife with at least 28 days written notice of the action proposed to be taken:

7.1D1 Pty Ltd; and

7.2F Pty Ltd.

8. Pursuant to sections 90AF and 114 of the Act, until further or other order of this Court, the second respondent, whether by itself, its directors, officers, employees or agents, be restrained from transferring or disposing of its shares in each of the following Companies, without first providing the Respondent Wife with at least 28 days written notice of the action proposed to be taken:

8.1D2 Pty Ltd;

8.2C Pty Ltd;

8.3E Pty Ltd;

8.4G3 Pty Ltd;

8.5G1 Pty Ltd;

8.6S Pty Ltd;

8.7T Pty Ltd;

8.8U Pty Ltd;

8.9Q Pty Ltd.

9. Pursuant to sections 90AF and 114 of the Act, until further or other order of this Court, the third respondent, whether by itself, its directors, officers, employees or agents, be restrained from transferring or disposing of its shares in G1 Pty Ltd, without first providing the Respondent Wife with at least 28 days written notice of the action proposed to be taken.

10. Pursuant to sections 90AF and 114 of the Act, until further or other order of this Court, the fourth respondent, whether by itself, its directors, officers, employees or agents, be restrained from transferring or disposing its shares in each of the following Companies, without first providing the Respondent Wife with at least 28 days written notice of the action proposed to be taken:

10.1G2 Pty Ltd; and

10.2G4 Pty Ltd.

11. Pursuant to sections 90AF and 114 of the Act, until further or other order of this Court, the fifth respondent, whether by itself, its directors, officers, employees or agents, be restrained from transferring or disposing its shares in R Pty Ltd, without first providing the Respondent Wife with at least 28 days written notice of the action proposed to be taken.

12. Pursuant to sections 90AF and 114 of the Act, until further or other order of this Court, the ninth respondent, whether by itself, its directors, officers, employees or agents, be restrained from transferring or disposing its shares in each of the following Companies, without first providing the Respondent Wife with at least 28 days written notice of the action proposed to be taken:

12.1S Pty Ltd;

12.2T Pty Ltd;

12.3U Pty Ltd; and

12.4Q Pty Ltd.

13. Pursuant to sections 90AF and 114 of the Act, until further or other order of this Court, the tenth respondent, whether by itself, its directors, officers, employees or agents, be restrained from transferring or disposing its shares in H Pty Ltd, without first providing the Respondent Wife with at least 28 days written notice of the action proposed to be taken.

14. Pursuant to sections 90AF and 114 of the Act, until further or other order of this Court, each of the second respondent, third respondent, fourth respondent, G2 Pty Ltd, G3 Pty Ltd, G4 Pty Ltd, the ninth respondent, S Pty Ltd, T Pty Ltd, U Pty Ltd and Q Pty Ltd, whether by itself, its directors, officers, employees or agents, be restrained from issuing any additional shares without first providing the Respondent Wife with at least 28 days written notice of the action proposed to be taken.

15. Pursuant to sections 90AF and 114 of the Act, until further or other order of this Court, each of the tenth respondent and H Pty Ltd, whether by itself, its directors, officers, employees or agents be restrained from issuing any additional shares without first providing the Respondent Wife with at least 28 days written notice of the action proposed to be taken.

16. Pursuant to sections 90AF and 114 of the Act, until further or other order of this Court, the fifth respondent, whether by itself, its directors, officers, employees or agents, be restrained from issuing any additional shares without first providing the Respondent Wife with at least 28 days written notice of the action proposed to be taken.

17.  That the proceedings be otherwise adjourned to hearing on a date to be fixed in relation to the interlocutory orders to be sought by the wife in the Amended Response to Initiating Application to be filed pursuant to Order 2.

Costs
18.That the Respondent Wife’s costs of and incidental to these proceedings be reserved.

APPENDIX TWO

Appendix two omitted to comply with Part XIVB of the Family Law Act 1975 (Cth)

SCHEDULE OF PARTIES

BRC 11011 of 2022
Respondents
Fourth Respondent:	E PTY LTD
Fifth Respondent:	F PTY LTD
Proposed Sixth Respondent:	MS B ABDULLAYEV
Proposed Seventh Respondent:	MS J
Proposed Eighth Respondent:	MS K
Ninth Respondent:	G1 PTY LTD
Tenth Respondent:	D2 PTY LTD