Anand & Chaudhary
[2022] FedCFamC1F 701
Federal Circuit and Family Court of Australia
(DIVISION 1)
Anand & Chaudhary [2022] FedCFamC1F 701
File number(s): MLC 13409 of 2019 Judgment of: HARTNETT J Date of judgment: 15 September 2022 Catchwords: FAMILY LAW – Financial – Interim Orders – Where the wife sought that the husband make all mortgage and/or rental repayments and/or all and any arrears of a property – Where the wife sought to have sole use and occupation of the property – Where part of the wife’s application had been addressed by a Senior Judicial Registrar – No review application – Where the husband opposed the orders – Where no change of circumstances to warrant consideration of the orders – Wife’s application dismissed.
FAMILY LAW – Practice and Procedure – Where the wife sought the joinder of six parties including two persons, three companies and a unit trust – Where the wife also sought a stay of proceedings in the County Court –Where personal service not effected on one of the proposed joinder respondents, no orders made –Joinder of companies and unit trust dismissed – Joinder of individual to whom the husband transferred shares and units is appropriate – No change of circumstances that would warrant reconsideration of stay application in respect of County Court proceedings – Wife’s application dismissed.
Legislation: Family Law Act 1975 (Cth) s 106B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 2.50(ii), 3.01, 3.03
Federal Magistrates Court Rules 2001 r 11.01
Supported Residential Services (Private Proprietors) Act 2010 (Vic) s 170
Cases cited: Wayne & Dillon & Anor [2008] FamCAFC 204 Division: Division 1 First Instance Number of paragraphs: 58 Date of hearing: 19 August 2022 Place: Melbourne Counsel for the Applicant: Dr Ingleby Solicitor for the Applicant: Aitken Partners Counsel for the Respondent: Ms O’Connell Solicitor for the Respondent: Shapra Lawyers Proposed Second Respondent: Litigant in person Counsel for the Proposed Fifth and Sixth Respondent: Mr Dickson QC Solicitor for the Proposed Fifth and Sixth Respondent: Asher Freeman Lawyers ORDERS
MLC 13409 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ANAND
Applicant
AND: MR CHAUDHARY
Respondent
order made by:
HARTNETT J
DATE OF ORDER:
15 September 2022
THE COURT ORDERS THAT:
Pursuant to rule 3.03(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) Ms Sarai be joined as a Second Respondent to the proceeding.
Within 7 days Ms Sarai file and serve a Notice of Address for Service.
The parties to the proceeding, save the Second Respondent, with respect to any company/corporate interest or trust, hereby be restrained by injunction from:
(a)resigning as an officeholder of any company/corporate entity;
(b)directing, authorising or causing any other person to deal with, sell, transfer, encumber, further encumber, or assign the parties’ interest in any company/corporate entity;
(c)dealing, selling, transferring, encumbering, further encumbering or assigning the parties’ shareholding or interest in any company/corporate entity; or
(d)directing, authorising or causing the issue of any shares in a company/corporate entity in which the parties’ have an interest, and which may reduce or dilute the Respondent’s and/or the Applicant’s interest in such company/corporate entity;
save by written agreement between the parties or by Court order.
The Second Respondent, with respect to B Pty Ltd, C Pty Ltd, D Pty Ltd, and with respect to her unit holding C Trust, be hereby restrained by injunction from:
(a)resigning as an officeholder of such company/corporate entity;
(b)directing, authorising or causing any other person to deal with, sell, transfer, encumber, further encumber, or assign the Second Respondent’s interest in such company/corporate entity or trust;
(c)dealing, selling, transferring, encumbering, further encumbering or assigning the Second Respondent’s shareholding or interest in such company/corporate entity or trust; or
(d)directing, authorising or causing the issue of any shares in such company/corporate entity and which may reduce or dilute the Second Respondent’s interest in such company/corporate entity;
save by written agreement between the parties or by Court order.
The parties costs of and incidental to this Application in a Proceeding be reserved.
The application for costs of the proposed joinder Fifth and Sixth Respondents not so joined is to be determined by the Court upon the receipt of written submissions from the proposed Fifth and Sixth Respondents within 28 days hereof together with any written submissions from the parties or any of them within a further 14 days thereafter. A right of reply shall be available to the Fifth and Sixth Respondent within 7 days thereafter.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Anand & Chaudhary has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
Preliminary
On 19 August 2022, the following order was made by consent:
Pursuant to rule 2.50(ii) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the applicant be granted leave to file the Further Amended Initiating Application sealed 5 August 2022 at 2:40pm.
The Further Amended Initiating Application relevantly seeks to set aside various transactions pursuant to s 106B of the Family Law Act 1975 (Cth) (“the Act”).
The Amended Application in a Proceeding filed 10 August 2022 by the Applicant wife (“the wife”) proposes the joinder of various entities and individuals to the substantive proceeding for property orders; seeks an order to restrain the relevant parties including the proposed joined parties, from taking any further steps in the proceedings in the County Court of Australia file numbers … and …; seeks orders that the Respondent husband (“the husband”) and proposed joined parties be subject to restraints including from resigning as an officeholder of any company or corporate entity and from encumbering, dealing, selling, transferring or assigning any interest in any company or corporate entity; seeks an order for the sole occupation and use by the wife of the real property situated at E Street, Suburb G (“the Suburb G Property”); and seeks an order that the husband pay all mortgage repayments and associated outgoings in respect of the Suburb G Property together with all arrears of those outgoings and mortgage repayments. The wife also seeks an order for her costs of and incidental to her Amended Application in a Proceeding.
On 18 August 2022, the husband filed a Response to the Amended Application in a Proceeding seeking that it be dismissed and the wife pay his costs of and incidental to the Amended Application in a Proceeding.
On 19 August 2022, the hearing was conducted via Microsoft Teams. Both parties were represented by counsel. Ms Sarai (“Ms Sarai”), an individual, proposed by the wife to be joined, appeared as a litigant in person. She opposed the order sought to join her to the proceedings and opposed any orders sought against her. B Pty Ltd (“B Pty Ltd”) and C Pty Ltd (ACN …) (“C Pty Ltd”) were both represented by Queen’s Counsel. C Pty Ltd and B Pty Ltd opposed all of the orders sought against them, including joinder, and sought costs.
Mr F, an individual proposed to be joined by the wife, was in Country M and as conceded by counsel for the wife, had not been sufficiently served with notice of the proceeding and the necessary material. No orders could be made in respect of him.
The husband is the sole director of D Pty Ltd (“D Pty Ltd”) and was the sole shareholder. The wife sought joinder of that company and effected service upon the registered office of the company. The company was not represented nor did it appear.
C Pty Ltd was sought to be joined to the proceeding in its capacity as trustee of the C Trust.
The C Trust is not a separate legal entity capable of being joined as a party to the proceeding. Nevertheless, the wife sought such joinder. Obviously, that application could not succeed.
Legal Principles
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) sets out the procedure for the joinder of a party to the proceeding. Rule 3.01 states that:
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 to the proceeding.
The word “necessary” was described by Warnick J in Wayne & Dillon & Anor [2008] FamCAFC 204, (I note in reference to the then Federal Magistrates Court Rules 2001, rule 11.01, which was similar to the current rule), as meaning:[1]
...something more than “useful” or “expeditious”. In my view, if there are available alternative means to joinder to the substantive proceedings, of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified “case”, joinder is unlikely to be “necessary”.
However, if a cause of action, recognisable at law, against a “third person” is particularised, then it is at least highly likely that joinder will be “necessary for the court to completely and finally determine all matters in dispute.”
[1] Wayne & Dillon & Dillon [2008] FamCAFC 204 at [18]-[19].
Pursuant to r 3.03(4) of the Rules, a party who seeks to add another party to the proceeding, after the first court date, may only do so with the leave of the Court. The party must also comply with r 3.03(5). There is no issue about the applicant’s compliance with that rule.
Material Relied Upon
The wife relied upon:
her Amended Application in a Proceeding filed 10 August 2022;
her Further Amended Initiating Application filed 5 August 2022;
her affidavit filed 5 August 2022;
her Financial Statement filed 21 February 2022; and
her written submissions filed 17 August 2022.
The husband relied upon:
his Response filed 17 August 2022; and
his affidavit filed 18 August 2022.
Ms Sarai did not rely upon any material, but made oral submissions during the course of the hearing.
The proposed respondent, B Pty Ltd, relied upon an affidavit of Ms Sarai, director of that company, filed on 22 August 2022. Queen’s Counsel acknowledged that the affidavit was filed out of time. Leave was granted by the Court for that affidavit to be relied upon.
C Pty Ltd relied upon:
an affidavit of Ms Sarai filed 16 February 2022; and
an affidavit of Ms Sarai sworn 18 March 2021 and filed 17 August 2021.
Both B Pty Ltd and C Pty Ltd relied upon written submissions filed on 18 August 2022.
Relevant Background
The wife was aged 47 years at the interim defended hearing. The husband was aged 56 years. Neither of them, as claimed, were in receipt of income other than Centrelink benefits. The parties were married in 2014 and separated on 12 July 2019.
There is one child of the marriage, X, born in 2018 and aged 4 years (“X”).
The husband and wife, and subsequently X, resided in the Suburb G Property from early 2018 (on the wife’s case) until separation in July 2019. The wife and child have continued their occupation of the Suburb G Property since the separation of the husband and wife in July 2019, initially supported by agreement of the husband and wife and then by a sole use and occupation order in the wife’s favour, and thereafter with a refusal by the wife to vacate the premises despite having no order for ongoing sole use and occupation, and a challenge to the legitimacy of the wife’s occupation as evidenced by the County Court proceedings (which replaced earlier VCAT proceedings) referred to in paragraph [3] above.
That challenge to the wife’s ongoing occupation of the property is by C Pty Ltd, the registered proprietor of the property. In late 2013, the husband and Mr H purchased the Suburb G Property, in their capacity as joint directors of C Pty Ltd, for $143,000. C Pty Ltd holds the property in its capacity as trustee of the C Trust. At the date of separation of the parties, the units in the C Trust were owned by D Pty Ltd, with that company holding 99 units, and by P Pty Ltd as trustee for the H Family Trust, which held one unit. Similarly, at separation, the shares in C Pty Ltd, as trustee for the C Trust, were owed 99 per cent by the husband and one per cent by Mr H.
C Pty Ltd is a company that was set up for the purposes of securing National Disability Insurance Scheme (“NDIS”) registration to house disabled people. The husband claims that C Pty Ltd purchased the Suburb G Property to be adapted and used for that purpose. The building was built to include:[2]
[2] Affidavit of Ms Sarai filed 16 February 2022, paragraph 5.
N-52 double Glaze windows throughout the building to withstand high impact of force;
high impact plaster board;
high noise suppression and fire-resistant exterior walls;
cabinets to resist heavy use;
stone based kitchen and vanity benchtops to prevent risk of fire and resist high impact damage; and
bathroom showers and toilets built with materials used for high resistance of force.
During the occupation of the Suburb G Property by the husband and wife, the husband paid a monthly rental sum to C Pty Ltd. Their occupation was for a limited period as claimed by the husband.
Following separation in July 2019, and on 26 November 2019, the wife filed an Initiating Application seeking property orders. The orders were not particularised.
In early 2020, the NDIS licensing application in respect of the Suburb G Property was intended to be lodged by C Pty Ltd. At that time, the husband was one of the Directors of C Pty Ltd. Ms Sarai’s evidence, Ms Sarai now being a director of C Pty Ltd, is that it was agreed the husband and/or wife would continue to reside in the Suburb G Property, paying the rental sum, which was applied to mortgage re-payments, pending receipt of the NDIS registration. The lodging of the license application was subsequently delayed by that occupation to mid-2020.
The wife alleges around this time, being early January 2020, the husband relevantly transferred various shareholdings and units as held by him such that:
(a)on 9 January 2020, he transferred 40 units in the C Trust from D Pty Ltd to Ms Sarai; and
(b)on 9 January 2020, he transferred a 40 per cent shareholding in C Pty Ltd to Ms Sarai.
In late 2020, some 14 months after the separation of the parties, B Pty Ltd was registered with the husband being a 50 per cent shareholder and Ms Sarai being a 50 per cent shareholder. The husband and Ms Sarai became joint directors.
On 12 November 2020, the wife filed an Amended Initiating Application seeking final property orders including that the ownership of the Suburb G Property be transferred to the wife. This was the first time the husband was provided with notification that the wife was seeking such an order.
In late 2020, on the husband’s evidence, he resigned as a director of B Pty Ltd and transferred his 50 per cent shareholding to Ms Sarai. Ms Sarai became the sole shareholder and sole director of B Pty Ltd.
In early 2021, B Pty Ltd became the registered proprietor of J Street, Suburb K.
On 21 January 2021, a Senior Registrar made interim property orders including that until further order the husband be restrained “from dealing [with] or selling real estate or shares in his name and control.”
On the wife’s evidence, following the making of orders on 21 January 2021, the husband proceeded to deal with and/or sell the following:
(a)100 shares in B Pty Ltd, which the husband transferred to Ms Sarai (on 12 February 2021);
(b)his remaining 59 units in the C Trust, which he transferred to Mr F (on 11 April 2021);
(c)the remaining 59 per cent of his shareholding in C Pty Ltd, which the husband transferred to Mr F (on 15 April 2021); and
(d)50 per cent of his shareholding in D Pty Ltd, which the husband transferred to Ms Sarai (on 27 August 2021).
The husband conceded (a) above in so far that he transferred his 50 per cent share to Ms Sarai, making her the sole shareholder, on 15 December 2020. The husband further agreed he made the transfer in (b) above, claiming he was asked by C Pty Ltd to give up his units. In relation to (c), the husband contends C Pty Ltd took over his shares and the directors and shareholders of C Pty Ltd determined Mr F was to receive them. The husband contends he had debt owing to Mr F and further that he still owes Mr F $140,000. In relation to (d) the husband contends that it was determined by the company that his shares should be transferred to minimise the exposure of D Pty Ltd to the prospect that the supported residential services (“SRS”) business would be closed by the regulatory authority and involved in litigation.
In early 2021, the husband resigned as director of C Pty Ltd, D Pty Ltd, and two other companies. He later again became a director of D Pty Ltd in mid-2021, in part, he claims, to keep the company afloat.
In early 2021, NDIS registration was approved for C Pty Ltd. However, further modifications were required to the Suburb G Property including changes to the floor plan, the bathrooms, and completion of the unfinished bathrooms.[3] C Pty Ltd has not been able to complete these works to date as the wife has refused access to the property. This has caused, as claimed, ongoing financial loss to C Pty Ltd, and prevented the NDIS registration to be finalised, which prevents the intended income from being generated.
[3] Affidavit of Ms Sarai. filed 16 February 2022, paragraph 10.
On 7 June 2021, the wife filed an Application in a Case which sought to join C Pty Ltd and its directors; for her sole use and occupation of the Suburb G Property; restraints on C Pty Ltd pursuing vacant possession proceedings in VCAT; and orders for the husband to meet the mortgage payments, outgoings and arrears of the Suburb G Property.
On 23 July 2021, a Senior Registrar made orders that until further order the wife continue to reside at the Suburb G Property (Order 1) and the husband pay the mortgage and any outgoings in addition to all arears in relation to the Suburb G Property (Order 2). Further orders were made, relevantly, in respect of the then VCAT proceedings issued by C Pty Ltd for vacant possession of the Suburb G Property, as follows:
3. That until further Order, [C Pty Ltd] be restrained from issuing or continuing with proceedings against the Wife with respect to the [Suburb G Property].
4.That the Wife be at liberty to provide the Victorian Civil and Administrative Tribunal with a sealed copy of these Orders AND IT IS REQUESTED that the solicitor for the Wife provide said orders as soon as practicable.
(Emphasis in original)
The matter was otherwise adjourned for interim defended hearing to determine, relevantly, whether C Pty Ltd should be joined to the proceedings.
On 23 August 2021, a Senior Registrar made orders, relevantly, that C Pty Ltd5 be joined to the proceedings; that the wife file and serve an Amended Application in a Case and an affidavit attaching a Statement of Claim; and otherwise adjourning the matter for a defended hearing.
In early 2022, L Company was appointed as Administrator for D Pty Ltd pursuant to s 170 of the Supported Residential Services (Private Proprietors) Act 2010 (Vic) (“the SRS Act”) following an investigation into the Suburb G Property facility by the Human Services Regulator.
On 4 April 2022, a Senior Registrar made orders, amongst other orders, discharging Orders 1, 2 and 3 of the orders of 23 July 2021, and ordering that C Pty Ltd be removed as a party to the proceedings. The effect of the totality of the orders made that day was that the wife was to vacate the Suburb G Property; the husband was not required to pay the mortgage and/or rent payable and/or any outgoings or arrears in relation to the Suburb G Property; and the restraint preventing C Pty Ltd from issuing or continuing with proceedings in the County Court of Victoria against the wife in relation to the Suburb G Property was lifted.
On 11 July 2022, a Senior Registrar made consent orders as follows:
1.[C Pty Ltd] [(ACN …)] be released, nunc pro tunc, from the implied Harman undertaking and has, in respect of the following documents filed in proceeding MLC13409/2019, leave to use them in County Court proceedings in relation [E Street, Suburb F] (including but not limited to proceedings to recover possession of the property and proceedings seeking damages for trespass):
a. Affidavit of [Mr Chaudhary] filed on 18/2/20
b. Affidavit of [Ms Anand] filed on 4/6/21
c. Affidavit of [Ms Anand] filed on 16/7/21
d.Outline of submissions filed on behalf of [C Pty Ltd] and dated 23/8/21
e. Affidavit of [Ms Anand] filed on 22/10/21
f. Outline of case filed by [Ms Anand] on 4/6/21
g. Affidavit of [Ms Sarai] filed by [C Pty Ltd] on 7/2/22
h. Affidavit of [Ms Sarai] filed by [C Pty Ltd] on 15/2/22
i.Written submissions filed on behalf of [C Pty Ltd] on 15/3/22
j. Written submissions filed by [Ms Anand] on 1/4/22
2. The release in the previous paragraph be subject to the following:
a.The release is subject to the material being redacted, with the redactions being agreed or otherwise determined by the Court pursuant to paragraph below.
b.The documents are not annexed to any affidavit filed on behalf of the [C Pty Ltd]; and
c.[C Pty Ltd] seek orders from the County Court for the documents, insofar as any part of them are retained or stored by the Court, to be kept sealed from public search and only made available to the County Court and the parties to the County Court Proceedings.
3. For the purposes of redactions of the material:
a.The applicant wife’s solicitor will produce proposed redactions to [C Pty Ltd] for its review by no later than 4:00pm on 12 July 2022;
b.In the event [C Pty Ltd] and the applicant wife reach agreement on proposed redactions, they shall cause those redactions to be made to the material prior to any material being used in the County Court of Victoria; and
c.In the event [C Pty Ltd] and the applicant wife cannot reach agreement on proposed redactions by midday on Friday 15 July 2022, the parties shall contact the chambers of [the Snr Judicial Registrar] to list the matter for further argument.
4.A copy of these orders may be produced in the County Court of Victoria and all parties involved in proceedings in that court if required.
Consideration
Joinder of Mr F
As earlier referred to, the proposed third respondent, Mr F, was not present at the hearing on 19 August 2022. Counsel for the wife submitted that Mr F was in Country M and that the wife was unable to effect personal service on him as required by the Rules. The documents had been emailed to him on 15 August 2022. No reply email was received by the wife to that email. Counsel for the wife accepted that they could not proceed with the application for joinder of Mr F given the circumstances.
Joinder of C Pty Ltd and B Pty Ltd
Queen’s Counsel for these two proposed joined parties submitted that neither company was a necessary party. No final relief is sought against either company. As submitted, with respect to C Pty Ltd, the relevant relief sought is simply to reinstate the husband as a shareholder of C Pty Ltd and D Pty Ltd as a unit holder of C Trust and, thereafter, to have such shares and units transferred to the wife. As further submitted, with respect to B Pty Ltd, the relief sought is again directed at the level of ownership of the shares, as opposed to any adjustment to any asset owned by that entity. The relevant persons necessary to determine the dispute about the ownership of the shares will be before the Court even if the entity itself remains a non-party.
Those submissions are accepted by the Court.
In these circumstances, why should the Court exercise an injunctive power against third parties? In my view, there is no basis to do so.
C Pty Ltd was before the Court, as a party to the proceedings, on 4 April 2022. This same application for injunctions against C Pty Ltd was heard and determined by the Senior Registrar. The Senior Judicial Registrar refused the application. No application was made to review his decision.
Likewise, the wife’s application for ongoing sole use and occupation of the Suburb G Property and for the husband to meet the expenses of that occupation, was heard and determined on the merits by the Senior Registrar. The wife was unsuccessful. There was again no review application.
There is no change of circumstances that would relevantly cause the Court to revisit the orders made on 4 April 2022. There might now be a legally competent s 106B application by the wife, with the four month delay in filing same not explained, but it is in the context of the County Court proceedings being considerably advanced. Those proceedings are agitated by C Pty Ltd in circumstances where there are no mortgage repayments being made by the husband and/or the wife (by virtue of rental payments to the owner of the Suburb G Property which were applied to the mortgage repayments) and where there is no ability for C Pty Ltd to earn an income from the property, as intended, given the wife’s ongoing occupation which has precluded necessary modification works. In seeking the anti-suit injunction the wife seeks effectively to continue her occupation of the Suburb G Property in circumstances where she makes no payment to the owner of the property for such occupation, and where she puts before the Court no evidence of a material changed circumstance.
Given the above, I find the balance of convenience also does not support the making of an injunctive order. The non-payment of the mortgage has been ongoing since the 4 April 2022 orders. The likelihood of a mortgagee sale is real. There is significant prejudice to C Pty Ltd as described above which the wife does not address. The wife again seeks the husband make payments of rental and outgoings, having sought that order before the Senior Registrar. The Senior Judicial Registrar did not grant that order and the wife made no application for review of that decision. Has anything of relevance changed? The answer must be no. The wife’s Financial Statement filed on 21 February 2022 indicates the wife continues to be engaged in home duties and to be in receipt of Centrelink benefits of $317.65 per week. Her weekly expenses as claimed are $632, with nil mortgage payments. Her assets and superannuation benefits are minimal. An asserted fact disputed by the husband. She has some debt.
The husband deposes, in his Financial Statement filed 16 February 2022, to receipt of nil income. He claims to have no current income earning capacity and an excess of liabilities over assets in the sum of approximately $3,300,000. Those matters are challenged by the wife.
The parties’ financial circumstances remain unchanged. There is before the Court no more other recent financial statements.
Whilst complaint is made about the wife’s not giving of any undertaking as to damages in the event of an injunction being granted, the reality is the wife’s financial position on the evidence, though challenged by the husband, at this interim hearing without cross-examination, precludes the prospect of any ability on her part to do so.
Joinder of D Pty Ltd
The proposed fourth respondent, D Pty Ltd, which trades under the name N Company, formerly trading under O Company, is also not a necessary party. D Pty Ltd is now in administration. It was the wife’s submission, however, that section 169 of the SRS Act provided that the Corporations Act does not apply to D Pty Ltd. Section 172 of the SRS Act sets out that the administrator’s functions are managerial in nature. Counsel for the wife submitted that it was not a type of administration that prevented D Pty Ltd from being joined to the proceeding as a party. Even if that were the case, and I am inclined to accept that position, no final order is sought by the wife against D Pty Ltd. The relief sought is again directed at the level of ownership of the Units and the husband’s 50 per cent shareholding. The necessary persons will be before the Court whilst the entity can remain a non-party.
I also note that whilst the husband contends he resigned as a director of D Pty Ltd in early 2022, and further contends that due to the Department of Families, Fairness and Housing requirements, he cannot be reinstated as a director of D Pty Ltd as there are pending charges against him, an ASIC search on the hearing date confirmed that the husband is still recorded as the sole director of D Pty Ltd. The husband claims considerable personal liability is attached to him in respect of D Pty Ltd entering into administration.
Joinder of Ms Sarai
To effect any return of the shareholdings and unit holdings transferred to Ms Sarai by the husband, it is necessary to join her to the proceedings.
I note it is conceded by the husband that he made transfers of shareholdings and units to Ms Sarai post the making of restraining orders on 21 January 2021. Ms Sarai is a relevant person necessary to determine the dispute between the parties as to share and unit ownership, and accordingly will be joined as a party to the proceeding.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 15 September 2022
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