Baghti and Baghti (No. 2)

[2010] FamCA 1260

FAMILY COURT OF AUSTRALIA

BAGHTI & BAGHTI (NO. 2) [2010] FamCA 1260

FAMILY LAW - PROPERTY – Anton Pillar order – ex parte

Family Law Act 1975 (Cth)

APPLICANT: Mr Baghti

1^ST RESPONDENT: Ms Baghti

2^ND RESPONDENT: Ms B

FILE NUMBER: SYC 2145 of 2009

DATE DELIVERED: 3 November 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 3 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

The Court noted that:

(A)Neither the wife nor the second respondent to the Case Application has been served with a copy of the application or affidavits in support.

(B)It is considered that this matter is one where some urgent action is required and for this reason the orders are made ex parte.

(C)The undertakings given to the court in writing by the husband and by David Courtney, solicitor (‘the solicitor”) and by Mr K, agent, and the representations of Mr Hargreave the solicitor for the applicant in relation to that undertaking.

Orders

1. Until further order the wife and the second respondent to the Case Application be restrained by injunction from selling, transferring, assigning, encumbering or alienating the business trading as “D Business” and/or (“the business”) or any stock, property, money, plant and equipment used in relation to the business other than in the ordinary course of business.

2. Until further order the wife and the second respondent to the Case Application by their servants and agents be restrained from removing from the premises of the business any stock, plant equipment or monies other than in the ordinary course of business and they are restrained from doing any act of thing to cause the business to trade other than in the ordinary course of business, pending further order.

3. The wife and the second respondent to the Case Application by their servants and agents forthwith upon service of a sealed copy of this order shall personally and by their servants and agents do all acts and things necessary to:

   3.1permit full and unfettered access to Mr K (“the agent”) and or his staff to all areas of the business premises at A suburb for a period of seven full trading days (“the observation period”) during ordinary business hours of the business (including hours preparation work is undertaken but the business is not open to customers), from the time of service of this order;

   3.2permit the agent throughout the observation period to place in the business a cash register which they and their employees shall faithfully use to record all sales as made and shall do no act or thing to interfere with the agent’s observation of sales and independent recording of sales;

   3.3ensure that stock is ordered in the ordinary course of business during the observation period;

   3.4ensure that no monies are removed from the cash register (other than providing change to customers or paying creditors in the ordinary course of business) until the end of the day when they shall be counted in the presence of the agent and then the agent shall be permitted to count, save that in the event that surplus cash would in the ordinary course be removed from the register during the course of the day then it shall happen in the presence of the agent and the agent shall be permitted to count and record the amounts so removed;

   3.5shall permit the agent to carry out a thorough stock-take immediately upon service of these orders and again at the conclusion of the day’s trading on the last day of the observation period;

   3.6shall permit the agent to inspect and make a record of all stock delivered during the said seven day period and shall provide the agent with a copy of any accounts or tax invoices in relation to such stock.

   3.7shall permit the agent to inspect and make a record of all and any soiled or spoiled stock that is to be dumped or otherwise disposed of during the observation period.

   3.8shall do or say nothing to hinder or prevent the agent from the fullest opportunity to carry out his duties pursuant to these orders.

   3.9permit the solicitor or his permitted substitute to be present throughout the observation period.

4. The solicitor shall be present throughout the observation period occurring on the day of service of these orders and thereafter he shall be permitted to have a substitute provided that substitute is a solicitor of not less than 5 years standing, who has no connection with the applicant husband and who prior to attending the business premises files an undertaking in writing with the Associate to Fowler J by facsimile, and causes a copy thereof to be provided to those present at the business premises declaring himself to undertake the duties of observer and to otherwise act independently as an officer of the court.

5. Should the solicitor or a substitute permitted by these orders fail to file an undertaking pursuant to these orders or otherwise be unavailable then the observation and activities of the agent pursuant to these orders shall be suspended until that position is rectified.

6. The wife and the second respondent to the Case Application shall have liberty to apply to discharge, vary of modify these orders on 24 hours notice.

7. At the time of service of these orders upon each of the wife and the second respondent to the Case Application they shall also be served with a copy of the application, affidavit in support and undertakings tendered to the court.

8. The NSW Police Service be served with a copy of these orders at G Police Station prior to the orders being served on the respondents and the police are requested to provide every assistance to ensure that these orders are complied with upon service.

9. The applicants’ costs of the present application and the costs and expenses incurred in giving effect to these orders are reserved to be determined by the court upon application subsequent to the other parties having notice of the application.

IT IS NOTED that publication of this judgment under the pseudonym Baghti & Baghti (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2145  of 2009

Mr Baghti

Applicant

And

Ms Baghti

1^st Respondent

And

Ms B

2^nd Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for orders requiring a cash audit for a business operated by the wife in these proceedings in partnership with her sister.

2. In this case I believe that there has been demonstrated on the material provided a strong case that there is a likely cash deficiency in the records of this business.  I accept that the determination of the actual cash position of this business is an important part of the husband’s case and that it would be central to the court determining the value of the property in the proceedings and the cash flow of the wife available to her.  The evidence in terms of the statement to the bankers and the comparison with the returned income appears to be unable to be explained, at least at the moment.  I believe that the order can be made.  I believe it should be made, but I want to do a number of things to try and protect the people to whom it is directed.

RECORDED : NOT TRANSCRIBED

1. That for those reasons and the reasons otherwise set forth in the exchange between counsel and the bench today I am satisfied that a case has been made out for the making of the order.  Accordingly I make an order in terms of the document titled Order dated this day and signed by me.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 3 November 2010.

Associate:  M. Rankin

Date:  25 February 2011