B Pty Ltd and Decastro and Anor - [2020] FamCA 521

FAMILY COURT OF AUSTRALIA

B PTY LTD & DECASTRO AND ANOR

[2020] FamCA 521

FAMILY LAW – PROPERTY – Interim injunctions – Where an urgent interim application is made by the Applicant Company for financial and injunctive relief against the Respondent husband and wife – Where the Board of directors of the Applicant Company comprises of the Respondent husband and wife and their two adult children – Where the company operates as trustee for the family trust and self-managed family superannuation fund and as a service entity for the businesses conducted by the Respondent husband – Where monies are owed to the Applicant Company and its entities – Where it is contended that the exists circumstances of urgency requiring the monies to paid for the Applicant Company to meet its current liabilities and mitigate any potential adverse action against the company by the Australian Taxation Office – Where complex circumstances exists in respect to the affairs of the Company and its directors – Where the parties are in agreement as to repayment of the monies – Where the parties are in dispute about the source of funds for the repayment – Whether the Court should grant injunctive relief – Whether the Court should make an order for partial property distribution between the parties – Orders made for the minimum repayment of the Div 7A of the Income Tax Assessment Act 1936 (Cth) to be payed from the husbands term deposit account – Orders made for the businesses to be sold and, following disbursements, the balance of the proceeds of sale to remain in a joint interest bearing account – Orders made restraining the husband from conducting business and issuing directions on behalf of the Applicant Company.

Family Law Act 1975 (Cth) s 114
Income Assessment Act 1936 (Cth) div 7A
Superannuation Industry (Supervision) Act 1993 (Cth)

Aitken & Murphy (No 2) [2012] FamCA 239
In the Marriage of Farr (1976) FLC 90-133
Jeeves & Jeeves (No 2) [2008] FamCA 1148
Kelleher & Anderson [2007] FamCA 137

Martin v Martin (2013) 49 Fam LR 606

Mertens & Mertens [2016] FamCAFC 136

Philips & Samuels [2017] FamCA 125

Strahan & Strahan (Interim property orders) (2011) FLC 93-466

APPLICANT:

B Pty Ltd

FIRST RESPONDENT:

Mr Decastro

SECOND RESPONDENT:

Ms Decastro

FILE NUMBER:

SYC

5179

2018

DATE DELIVERED:

30 June 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

19 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms M A Giles SC

SOLICITOR FOR THE APPLICANT:

Landers & Rogers

SOLICITOR FOR THE FIRST

RESPONDENT:

Mr Reeve of Marsdens Law Group

SOLICITOR FOR THE SECOND

RESPONDENT:

Mr P Doolan of Barkus Doolan

Orders

That Mr Decastro (“the husband”) forthwith disburse the balance in his Commonwealth Bank Term Deposit Account (BSB: … Account Number: …85) in the following manner and priority:
(a)a sum of $123,548.77 to B Pty Ltd as trustee for the Decastro Family Trust for the purpose of the Decastro Family Trust meeting the minimum repayment required by the…

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.

Keep reading for free

Create a free CaseChat account to read B Pty Ltd and Decastro and Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FamCA 521
Decision Date: 30 June 2020

CaseChat Overview and Summary

This matter concerned orders made by McClelland DCJ in relation to financial matters between B Pty Ltd, as trustee for the Decastro Family Trust, and the husband and wife parties, Mr Decastro and Ms Decastro. The dispute involved the disbursement of funds from the husband's term deposit, the sale of businesses, and the satisfaction of various tax liabilities and other commitments.

The court was required to determine the appropriate distribution of funds from the husband's term deposit, including a specific sum to be paid to B Pty Ltd to meet minimum repayment obligations under Division 7A of the *Income Tax Assessment Act 1936* (Cth). Further issues included how B Pty Ltd should apply these funds, including payments to the Australian Taxation Office for various liabilities of B Pty Ltd and the Decastro Family Trust, and other business expenses. The court also needed to address the sale of two businesses, D Business and E Business, and the priority of payments from the sale proceeds, including outstanding loan accounts owed to B Pty Ltd. Finally, the court considered the husband's obligations to provide information for tax lodgements and imposed restrictions on his ability to conduct business on behalf of B Pty Ltd.

McClelland DCJ ordered that the husband forthwith disburse the balance of his Commonwealth Bank Term Deposit Account. A sum of $123,548.77 was to be paid to B Pty Ltd as trustee for the Decastro Family Trust to meet minimum repayment obligations under Division 7A. B Pty Ltd was then directed to use these funds to satisfy specific liabilities to the Australian Taxation Office for B Pty Ltd, the Decastro Family Trust, and a joint BAS, as well as meeting other commitments, with itemised accounts to be provided to the spouse parties. The husband was also ordered to take all necessary steps to ensure the sale of D Business and E Business at the earliest possible date, with the proceeds to be applied first to selling costs, then to discharge any unpaid loan account owed by the husband to B Pty Ltd, with the balance to be held in a joint interest-bearing account. The husband was further ordered to provide information to enable the lodgement of a Business Activity Statement and was restrained from making representations or conducting business on behalf of B Pty Ltd without the prior written consent of its Board.

Orders

Orders of the court

That Mr Decastro (“the husband”) forthwith disburse the balance in his Commonwealth Bank Term Deposit Account (BSB: … Account Number: …85) in the following manner and priority:

(a) a sum of $123,548.77 to B Pty Ltd as trustee for the Decastro Family Trust for the purpose of the Decastro Family Trust meeting the minimum repayment required by the Trust to B Pty Ltd under Div 7A and as per the advice of C Pty Limited.

That B Pty Ltd use the funds in Order 1 above, being $123,548.77, to meet its obligations as follows:

(a) The sum of $25,922.99 to be paid to the Australian Taxation Office in satisfaction of the liability presently owed by B Pty Ltd to the Australian Taxation Office;

(b) The sum of $16,565.37 to be paid to the Australian Taxation Office in satisfaction of the liability presently owed by the Decastro Family Trust to the Australian Taxation Office;

(c) The sum of $1,252.00 to be paid to the Australian Taxation Office on behalf of B Pty Ltd ATF Decastro Family Trust in satisfaction of the outstanding BAS referable to the 2019 calendar year.

(d) Meeting its other commitments including those to its professional advisors providing that the spouse parties are provided with itemised accounts for all claimed invoices for both lawyers and accountants in advance; and,

(e) The balance then remaining as determined by the directors.

That the husband forthwith do all things and acts necessary to cause D Business and E Business to be sold at the earliest possible date at a price to be agreed upon between Ms Decastro (“the wife”) and the husband and B Pty Ltd.

For the purpose of Order 3 above, the parties shall do the following:

(a) Continue the appointment of F Firm as the business broker for D Business and E Business;

(b) Ensure that all business financial reports and statements including profit and loss statements and tax returns are up to date and provided to F Firm within seven (7) days of being requested to do so by F Firm;

(c) At the earliest possible date apply the proceeds of sale of the business in the following manner and priority, upon completion of the sale:

(i) payment of the business selling agents’ commissions and expenses, if any;

(ii) payment of legal costs and disbursements for the solicitors acting on the sale;

(iii) A sum necessary to discharge any unpaid loan account of the husband, which he owes to B Pty Ltd as trustee for the Decastro Family Trust.

(iv) the balance then remaining to be paid into a joint interest-bearing account agreed to by the husband and the wife with funds to be disbursed from that account only with the consent of both parties.

That within seven (7) days of the date of these Order, the husband shall provide, or cause to be provided, all relevant particulars and information sought by, and to enable, B Pty Ltd as trustee for the Decastro Family Trust and Decastro Family Superannuation Fund to complete and lodge the Business Activity Statement that fell due on 28 April 2020.

That the husband shall be and hereby is restrained from making representations, authorising transactions, executing instruments, issuing directions and/ or conducting business on behalf of B Pty Ltd, including but not limited to:

(a) issuing directions to, and/or conducting negotiations with, any agent appointed to manage the real property(ies) owned by B Pty Ltd in respect of tenancy arrangements and/or receipt and application of rental income and the like; and

(b) issuing directions to, and/or conducting negotiations with any tenant or prospective tenant in respect of the real property(ies) owned by B Pty Ltd without first obtaining the prior written consent of the Board of B Pty Ltd.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.