Becker and Vale

[2020] FamCA 126

FAMILY COURT OF AUSTRALIA

BECKER & VALE [2020] FamCA 126

FAMILY LAW – INJUNCTIONS – where under final property orders the wife was to receive a property to which the wife now alleges the husband has caused damaged to or removed fixtures – where the wife seeks an urgent injunction to restrain the husband from dealing with property under his control and prior to the husband leaving the Commonwealth – injunctions made subject to an undertaking as to damages being filed by the wife.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Becker

RESPONDENT: Mr Vale

FILE NUMBER: BRC 387 of 2016

DATE DELIVERED: 27 February 2020

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Baumann J

HEARING DATE: 27 February 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Evans Brandon Family Lawyers

THE RESPONDENT: Self-represented

Orders

1. That by no later than 4.00pm on 3 March 2020 the Applicant file and serve a written Undertaking that she will meet and be responsible for any damages assessed by the Court to flow that would be, if thought appropriate by the Court, payable by her arising from the injunctions imposed by the Court by this Order of 27 February 2020.

2. That if the Applicant fails to file an Undertaking in the terms provided in Order 1 hereof by 4.00pm on 3 March 2020, the injunction herein made today shall be discharged.

3. That the Respondent shall, in his capacity as Director of D Pty Ltd ACN … as trustee for The Vale Family Trust ABN …, be restrained and an injunction hereby granted restraining him from disposing of the property situated at Unit 1 P Street, Q Town in the State of Queensland.

4. That the Respondent shall be restrained and an injunction hereby granted restraining him from dealing in any manner whatsoever with his interest in D Pty Ltd ACN … and/or The Vale Family Trust ABN … including but not limited to:

   (a)transferring, assigning or encumbering any interest or shareholding he holds in either entity; and/or

   (b)resigning, or otherwise causing himself to be removed, from any position he holds within either entity.

5. That the parties shall forthwith do all acts and things as are necessary, including but not limited to signing documents, to cause a Consent Caveat to be lodged against the property situated at Unit 1 P Street, Q Town in the State of Queensland in favour of the Applicant.

6. That noting the Respondent is due to travel overseas on 10 March 2020 and is unable to sign the Consent Caveat as required under Order 5 hereof, a Registrar of this Court at Brisbane is appointed, pursuant to Section 106A of the Family Law Act 1975, to execute the said Consent Caveat in the name of the Respondent (for and on behalf of D Pty Ltd) and to do all acts and things necessary to give validity and operation to this Order.

7. That upon an Undertaking as to damages being filed, the Applicant shall cause to be sent to the secured mortgage of the property at Unit 1 P Street, Q Town a copy of this Order with an explanation that the Orders have been made on a temporary basis so as to allow the Court to consider the Applicant’s application for damages against the husband or his entity in respect of the costs of replacing fixtures the Applicant asserts were removed by the Respondent or his agents at Unit 2 P Street, Q Town.

8. That by no later than 4.00pm on 14 May 2020 the Respondent shall file and serve a Response to the Application in a Case supported by Affidavit.

9. That if the Respondent files and serves a Response to the Application in a Case and supporting Affidavit and is able to press for a hearing of the Application because he is in Australia, then he may seek an earlier re-listing of the matter than the date as set out in this order.

10. That the parties’ costs of today be reserved.

11. That these proceedings be adjourned for Case Management Hearing at 9.30am on 27 May 2020 in the Family Court of Australia at Brisbane.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Becker & Vale has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: BRC 387 of 2016

Ms Becker

Applicant

And

Mr Vale

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. The parties to this mater were in a de facto relationship for many years and had contested property proceedings before the Family Court of Australia for some time before I made at a trial final orders on 23 July 2019 which were amended under the slip rule on 13 August 2019 (“the said final orders”).

2. These proceedings were complicated by the fact that there were a number of entities overseas involved in an international business enterprise conducted by the parties but primarily the husband involved with confectionary.  The said final orders were meant to bring to an end the financial connection between the parties and by the said final orders simplicity, the wife was to receive two properties -  a property at S Street, Suburb T and a property at Unit 2 P Street, Q Town.  Although the wife complains as to some delays in the transfer of these interests and/or put into effect those interests, it is agreed it seems that ultimately Unit 2 was transferred into the wife’s name on 13 December 2019.  That occurred and were facilitated by a consent order made by the Honourable Justice Carew on 13 December 2019.

3. Whilst that might have been thought to have been the end of the matter, the wife by her Affidavit filed just two days ago in this Court asserts and the husband disputes, that once she had possession of the property known as Unit 2 P Street, Q Town, the property was not in the state that she expected it to be and she says at paragraph 11 of her Affidavit that certain fixtures which she expected to be retained in the property had been removed.  She says at paragraph 12 that she is in the process of arranging to obtain evidence as to the value of replacing the fixtures which were removed.  She identifies in the relief she seeks at paragraph 1 of her Application in a Case filed 25 February 2020 that she will pursue action against the husband essentially for damages for the costs of replacing the fixtures which she asserts he caused to remove.  The property she seeks to restrain the husband from dealing with (namely Unit 1 P Street, Q Town), with the fixtures at the time of trial was estimated to have a value of approximately $790,000.  Mr Brandon who appears for the wife acknowledges that there is a registered security over the property.  He says it is for $50,000 to a lending institution called V Loans.  On the face of it therefore there may be significant equity in that property that the husband is to retain the wife seeks the restraint so that it could meet any damages award if that damages award is ultimately made.

4. The reason for the urgency in this matter is the wife says that the husband who has business interests in other parts of world and particularly Country U, is due to leave the Commonwealth of Australia and she fears he may not return.  She says that his capacity to leave Commonwealth of Australia has been enlivened because earlier bail conditions in relation to criminal proceedings pending in South Australia prevented him from leaving the Commonwealth of Australia but have recently been varied to permit him to do so.  Mr Vale has been given limited notice of these proceedings having been served, he says, or having come to his notice at 1.00pm yesterday.  He says he wishes to get legal advice.  He says that he intends to leave Australia on 10 March 2020 and intends to return to Australia on 7 May 2020.

5. Despite the difficulties of attending to this matter on a urgent basis today by telephone from Townsville where I am sitting and both where Townsville was undertaking a very significant storm which caused difficulties in hearing the parties, an issue that was shared by Mr Vale who I recall from the trial was hard of hearing and is now in another part of Australia that was also suffering a storm.  I am satisfied from the submissions I have heard that:

   a)the husband wishes to contest these proceedings

   b)the husband wishes to obtain legal advice and instruct lawyers to do so;

   c)the husband says there is no merit in the wife’s case;

   d)although the property known as Unit 1 is security for a loan to V Loans, and there is therefore some equity in the property at this stage, there are a number of other debts and obligations the husband has that may have some priority to whatever damages the wife might be able to claim against him in respect of Unit 2; and

   e)there is no other real property in Australia controlled by the husband, although the business which he retains under the said final orders still operates in Australia and I infer from that comment it has stock and equipment in Australia as well as overseas.

6. The principles to be  applied in a case where an urgent injunction is being sought, although not ex parte but certainly in the absence of any evidence from the Respondent are well known and do not need to be restated.  I need to be satisfied at least however that the basis the wife seeks to restrain the property has some merit.  It is difficult on her evidence at this stage to be satisfied that she will receive any damages for what she asserts to be problems with the state and removal of fixtures at Unit 2.  However, on her sworn evidence I am not prepared to take the view that she has no claim.

7. Secondly, the Respondent has not in the limited time he has had available, satisfied me that if there is a prejudice to him in the property not being sold that it is not a prejudice immediate.  He says he is not seeking to sell the property.  He is concerned about the company that has security, V Loans, thinking adversely about a caveat being lodged on his property.  That can in my view be somewhat remedied by a direction that the wife’s solicitors provide the secured creditor with an explanation of the current proceedings and timetable so that when they see a consent caveat it has some context.

8. The real concern in this matter is that the property is owned by an entity controlled by the husband, namely D Pty Ltd as Trustee for The Vale Family Trust.  If the husband was, from Country U or elsewhere, able to effect a sale of the property without the wife’s notice, any equity that could be used for the purposes of meeting some damages award would be lost.  In the circumstances I am prepared to make the injunction sought in the orders on a temporary basis so as to allow the husband to file some material in response however I am concerned that the wife has not offered, as I believe she should, an undertaking as to damages.

9. As best I could hear Mr Brandon, the solicitor advocate for the wife, he indicated that the wife’s financial position itself is not good and she may have some difficulties meeting a damages award however to not require an undertaking as to damages for any consequential losses if the injunction has not been placed, would be effectively to allow the wife to injunct and restrain a person from lawfully going about their business without any risk of consequence to her.  In my view, the principles of equity require the undertaking as to damages to be given and I propose to make an order that requires an undertaking as to damages in a specific form to be filed with the Brisbane registry by 4.00pm on Tuesday, 3 March 2020.

10. I propose to list this matter on a date after 7 May 2020 but on the basis that the husband can seek to have the matter re-heard by the Court more quickly than that once he has filed his material in response.  It is not likely that on the next date I will be in a position to deal with this matter as a contested matter, but as I say there is more evidence that the wife is yet to produce in relation to items removed and the cost of their value for replacement or otherwise which is not currently before the Court.

11. I accept that these ex tempore reasons have been dealt with in less than ideal circumstances but in my view it is a proper exercise of the Court’s discretion to make the orders on an interim basis, subject to the wife providing an undertaking set out at paragraphs 2,3 4, 5 and 6 of the Application filed 25 February 2020.  The order will provide that the wife is to file by 4.00pm on Tuesday, 3 March 2020 an undertaking that she will meet and be responsible for any damages assessed by the Court to flow that would be, if thought appropriate by the Court, payable by her arising from the injunctions imposed by the Court on 27 February 2020.

12. The orders will say that if the wife fails to file an undertaking in these terms by 4.00pm on Tuesday, 3 March 2020, the injunctions made today shall be discharged.  Of course the relief sought by the wife at paragraph 1 will still remain for determination by the Court.  That matter will come back before the Court for further directions on 27 May 2020 at 9.30am.

13. On the next occasion I will consider the material filed and the further directions to resolve the dispute which is essentially the wife’s application for enforcement.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 27 February 2020.

Associate:

Date:  10 March 2020