Allan and Allan and Ors - [2014] FamCA 250

FAMILY COURT OF AUSTRALIA

ALLAN & ALLAN AND ORS

[2014] FamCA 250

FAMILY LAW – INJUNCTIONS – where orders were made in 2010 restraining the husband from doing any act in his capacity as protector of the family trust – where the husband sought that injunction be lifted for the purpose of removing the current Trustee of the family trust – where the current trustee of a family trust, Receivers of a second family trust and the wife seek consent orders consistent with a settlement deed executed by them – where consent orders are made prior to the injunction being discharged – where restraint then lifted to enable a new trustee to participate in the continued dispute in relation to the remaining funds

Family Law Act 1975 (Cth)

Ashton & Ashton (1986) FLC 91-777
Davidson (1991) FLC 92-197

Goodwin & Goodwin Alpe (1991) FLC 92-192

APPLICANT:

Mrs Allan

1^st RESPONDENT:

Mr Allan

3^rd RESPONDENT:

Ms C Allan

4^th RESPONDENT:

Mr L Allan

5^th RESPONDENT:

Ms H Allan

6^th RESPONDENT:

Ms E Allan

12^th RESPONDENT:

Mr Senne as trustee for AM Trust

13^th RESPONDENT:

Mr Senne

INTERVENORS :

Mr D & Mr CP (Receivers)

FILE NUMBER:

SYC

3842

2008

DATE DELIVERED:

14 April 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

13 June 2013

REPRESENTATION

SOLICITOR FOR THE WIFE:

Paul & Paul Lawyers

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Green with Ms Oliak

SOLICITOR FOR THE 1^ST RESPONDENT:

Hudson Law

SOLICITOR FOR THE 12^TH RESPONDENT:

Delaney Lawyers

COUNSEL FOR INTERVENORS:

Mr Roberts

SOLICITOR FOR INTERVENORS:

Kelly & Co Lawyers

Orders

Order 3 made 17 June 2010 is discharged.
W Nominees No. 2 Pty Limited (Receivers & Managers appointed) (“the Receivers”) cause to be paid out of the account created pursuant to Order numbered 5 of the Orders made on 17 June 2010 (BankSA Investment Cash Account No. …50) (“controlled account”) the sum of $600,000.00 (inclusive of GST) into a controlled monies account (the second controlled account) under the joint control of the wife and Mr Senne as the current trustee for the AM Trust to abide the further order of the Court.
The Receivers be at liberty to have access to and deal with the balance of the funds remaining in the controlled account following the payment contemplated by Order 2 above in accordance with their obligations as Receivers and Managers of W Nominees No. 2 Pty Ltd (Receivers and Managers Appointed) (in liquidation).
The Receivers be relieved from the undertaking referred to in paragraph 1 of the Orders of this Court dated 4 November 2010 and that they be at liberty to sell the items identified in paragraph 9 of the affidavit of Mr Senne sworn on 2 November 2010 and filed in these proceedings and retain the proceeds of that sale or sales.
Subject to orders 2 to 4 made this day, order 4 made 17 June 2010 is discharged.
This matter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FamCA 250
Decision Date: 14 April 2014

CaseChat Overview and Summary

The proceedings involved the parties Allan and Allan and Ors, with Watts J presiding. The dispute concerned the management and distribution of funds held in a controlled account, with specific orders being made regarding the discharge of previous orders, the payment of a substantial sum into a new controlled account, and the liberty of receivers to deal with remaining funds.

The court was required to determine the appropriate disposition of funds held in a controlled account, particularly the release of $600,000 to a new controlled account pending further order, and to clarify the powers of receivers over the remaining balance. Additionally, the court considered the discharge of prior orders and the liberty of the receivers to sell certain assets and retain the proceeds.

Watts J ordered the discharge of specific previous orders, including Order 3 made on 17 June 2010. A key directive was for the Receivers to pay $600,000 from the existing controlled account into a new controlled account, to be held jointly by the wife and the current trustee for the AM Trust, awaiting further court directions. The Receivers were granted liberty to access and deal with the remaining funds in the original account in accordance with their duties. Furthermore, the Receivers were relieved from an undertaking given on 4 November 2010 and permitted to sell specified items, retaining the proceeds. The matter was relisted for further consideration, with directions for parties seeking orders regarding the $600,000 fund to submit minutes and explanations.

Orders

Orders of the court

Order 3 made 17 June 2010 is discharged.

W Nominees No. 2 Pty Limited (Receivers & Managers appointed) (“the Receivers”) cause to be paid out of the account created pursuant to Order numbered 5 of the Orders made on 17 June 2010 (BankSA Investment Cash Account No. …50) (“controlled account”) the sum of $600,000.00 (inclusive of GST) into a controlled monies account (the second controlled account) under the joint control of the wife and Mr Senne as the current trustee for the AM Trust to abide the further order of the Court.

The Receivers be at liberty to have access to and deal with the balance of the funds remaining in the controlled account following the payment contemplated by Order 2 above in accordance with their obligations as Receivers and Managers of W Nominees No. 2 Pty Ltd (Receivers and Managers Appointed) (in liquidation).

The Receivers be relieved from the undertaking referred to in paragraph 1 of the Orders of this Court dated 4 November 2010 and that they be at liberty to sell the items identified in paragraph 9 of the affidavit of Mr Senne sworn on 2 November 2010 and filed in these proceedings and retain the proceeds of that sale or sales.

Subject to orders 2 to 4 made this day, order 4 made 17 June 2010 is discharged.

This matter be relisted before myself on 29 May 2014 at 10am.

By 2 May 2014 any party to these proceedings who wishes to seek an order in respect of the amount of $600,000 or part of it in the second controlled account, should forward to my associate a minute setting out what orders they seek in relation to the fund together with a short explanation as to the basis upon which that order is sought and a minute of any other consequential orders that are still sought.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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