BOYLE & BOYLE - [2018] FamCA 346

FAMILY COURT OF AUSTRALIA

BOYLE & BOYLE

[2018] FamCA 346

FAMILY LAW – PROPERTY – Interim s 79 application and s 114 application for injunction by husband to seek reinstatement of his position in a trustee company for the purposes of enabling him to bring oppression proceedings concerning the sale value of the trust’s interest in another business – Where the absence of evidence to show value in such oppression action and likelihood of success militates against granting the husband’s application-application refused

Corporations Act 2001 (Cth)
Family Law Act 1975 (Cth)

Campbell and Back Office Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
Catalano v Managing Australia Destinations Pty Ltd (2014) 314 ALR 62
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Morgan v 45 Flers Ave Pty Ltd (1986) 10 ACLR 692
Re Saul D Harrison & Sons Plc [1995] 1 BCLC 14
Sieling & Sieling (1979) FLC 90-627
Stanford & Stanford (2012) FLC 93-518
Strahan & Strahan [2009] FamCAFC 166
Wayde v New South Wales Rugby League Limited (1985) 180 CLR 459

APPLICANT:

Mr Boyle

RESPONDENT:

Ms Boyle

FILE NUMBER:

MLC

3580

2018

DATE DELIVERED:

21 May 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

8 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hutchings with Mr Hibble

SOLICITOR FOR THE APPLICANT:	Tisher Liner Fc Law
COUNSEL FOR THE RESPONDENT:	Ms Vohra SC

SOLICITOR FOR THE RESPONDENT:

MDL Law

Orders

Save as otherwise set out in the following orders, the application in a case filed by the husband on 27 April 2018 (as amended by the proposed orders contained in the minutes tendered) is dismissed.
Paragraphs 7 and 11 of the minutes (relating to the re-appointment of the husband as a director) are adjourned to a date to be fixed to be relisted should the husband be so advised.
Paragraphs 5, 8, 9 and 10 of the said minutes are dismissed.
Paragraphs 4, 5, 6 and the first of the two paragraphs numbered 7 of the minutes (relating to the application under s 79 of the Act) are dismissed.
The second paragraph numbered 7 of the minutes (relating to application under s 79 of the Act) is adjourned to a date to be fixed to be relisted should the husband be so advised.
The response of the wife filed 3 May 2018 to the husband’s proposed interlocutory orders is dismissed.
The application for interim orders set out in the wife’s response filed 30 April 2018 is dismissed.
The extant applications for final orders sought by the husband and the wife are adjourned for a directions hearing before Registrar Jenkins at 9.30am on 4 July 2018.

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 Boyle & Boyle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law…

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: [2018] FamCA 346
Decision Date: 21 May 2018

CaseChat Overview and Summary

In the matter of *Boyle & Boyle*, Cronin J considered an application filed by the husband on 27 April 2018, which had been amended by proposed orders contained in minutes tendered to the court. The wife had also filed a response to the husband's proposed interlocutory orders on 3 May 2018, and an application for interim orders on 30 April 2018. The dispute concerned various proposed orders relating to the re-appointment of the husband as a director and applications under section 79 of the *Family Law Act 1975* (Cth).

The court was required to determine the disposition of the husband's amended application, the wife's response and application for interim orders, and the extant applications for final orders. Specifically, the court had to decide which of the proposed interlocutory and final orders should be dismissed, adjourned, or proceed to a further hearing.

Cronin J dismissed the majority of the husband's application, including specific paragraphs relating to his re-appointment as a director and his application under section 79 of the Act. The wife's response and application for interim orders were also dismissed. However, certain paragraphs of the husband's proposed orders concerning his re-appointment as a director and his section 79 application were adjourned to a date to be fixed, to be relisted should the husband be so advised. The extant applications for final orders sought by both the husband and the wife were adjourned for a directions hearing before Registrar Jenkins.

Orders

Orders of the court

Save as otherwise set out in the following orders, the application in a case filed by the husband on 27 April 2018 (as amended by the proposed orders contained in the minutes tendered) is dismissed.

Paragraphs 7 and 11 of the minutes (relating to the re-appointment of the husband as a director) are adjourned to a date to be fixed to be relisted should the husband be so advised.

Paragraphs 5, 8, 9 and 10 of the said minutes are dismissed.

Paragraphs 4, 5, 6 and the first of the two paragraphs numbered 7 of the minutes (relating to the application under s 79 of the Act) are dismissed.

The second paragraph numbered 7 of the minutes (relating to application under s 79 of the Act) is adjourned to a date to be fixed to be relisted should the husband be so advised.

The response of the wife filed 3 May 2018 to the husband’s proposed interlocutory orders is dismissed.

The application for interim orders set out in the wife’s response filed 30 April 2018 is dismissed.

The extant applications for final orders sought by the husband and the wife are adjourned for a directions hearing before Registrar Jenkins at 9.30am on 4 July 2018.

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

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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