Cook and Cook and Ors (No 2) - [2007] FamCA 1426

FAMILY COURT OF AUSTRALIA

COOK & COOK AND ORS (NO. 2)

[2007] FamCA 1426

FAMILY LAW – PRACTICE AND PROCEDURE – Discovery

Family Law Act 1975 (Cth)

Hatton v Attorney-General of Commonwealth of Australia, Commonwealth Bank of Australia, and Commonwealth Development Bank of Australia (2000) FLC 93-038

APPLICANT:

Ms Cook

RESPONDENT:

Mr N Cook

FILE NUMBER:

MLF

1997

2003

DATE DELIVERED:

14 November 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

15 & 16 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dickson

SOLICITOR FOR THE APPLICANT:

Marshalls & Dent

COUNSEL FOR THE RESPONDENT:

Mr Ackman & Ms Macmillan; Mr Mawson; Mr Wilson

SOLICITOR FOR THE RESPONDENT:

Kennedy Wisewoulds; Kenna Teasdale; Madgwicks

Orders

That within 21 days Z Constructions Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:
·Primary/source documents in support of the notes recorded in the detailed profit and loss accounts for the financial year ended 30 June 2006.
·Title particulars of each property that makes up the land recorded in the inventory at Note 5 and the land and buildings recorded at Note 6(a) to the financial accounts for the financial year ended 30 June 2006.
·Current market valuation of the land recorded in the inventory at Note 5 to the financial accounts.
·Valuations of the land and building recorded at Note 6(a) to the financial accounts.
·All documents in support of the loans recorded at Notes 8 and 10 of the financial accounts for the financial year 2006.
·Its asset register.
That within 21 days ZL Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:
·detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2005 (inclusive).
·All documents in support of the loans recorded at Note 4 of its financial accounts for the financial year ended 30 June 2006.
·Its asset register.
·Primary/source documents which support the loans recorded at Note 6 of its financial accounts for the financial year ended 30 June 2006.
That within 21 days Z Earth Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:
·Its asset register.
·All primary/source documents in support of loans recorded at Notes 4 and 7 of its financial accounts for the financial year ended 30 June 2006.
·Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006.
That within 21 days Z Hire Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:
·Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006 (inclusive).
·Its asset register.
·All primary/source documents which support loans recorded at Notes 4 and 7 of its financial accounts for the financial year ended 30 June 2006.
That within 21 days ZSC Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:
·Detailed profit and loss statements for the financial year ended…

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 Cook and Cook and Ors (No 2) 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: [2007] FamCA 1426
Decision Date: 14 November 2007

CaseChat Overview and Summary

This matter came before Dessau J in the Family Court of Australia concerning an application by the wife for the production of various financial documents. The application sought disclosure from numerous entities, including Z Constructions Pty Ltd, ZL Pty Ltd, Z Earth Pty Ltd, Z Hire Pty Ltd, ZSC Pty Ltd, ZSB Pty Ltd, Z Services Pty Ltd, Cook Street Pty Ltd, Cook Investments Pty Ltd, ZM Pty Ltd, the Cook Partnership (comprising W, N and D Cook), X Land Pty Ltd, X Developments Pty Ltd, XC Pty Ltd, and XA Pty Ltd. The dispute centred on the wife's need to obtain comprehensive financial information to facilitate the proper conduct of proceedings, presumably related to property settlement.

The primary legal issue before the court was the extent of financial disclosure required from the various parties and entities to ensure a fair and just resolution of the underlying family law proceedings. This involved determining whether the documents sought were relevant and necessary for the wife to ascertain the full extent of the parties' financial positions, including assets, liabilities, income, and valuations. The court was tasked with balancing the wife's right to disclosure against any potential burden or prejudice to the respondents in providing the requested information.

Dessau J ordered the production of a wide range of documents from the respondent entities and individuals within specified timeframes. These orders included the delivery of primary source documents supporting profit and loss accounts and loans, title particulars and valuations of properties, asset registers, settlement statements, financial statements, taxation returns, deeds of company arrangement, and schedules of debts forgiven. The court also ordered the disclosure of market values of specific properties and leases. Notably, the wife's Form 2 application was otherwise dismissed, and costs for all parties were reserved.

Orders

Orders of the court

That within 21 days Z Constructions Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· Primary/source documents in support of the notes recorded in the detailed profit and loss accounts for the financial year ended 30 June 2006.

· Title particulars of each property that makes up the land recorded in the inventory at Note 5 and the land and buildings recorded at Note 6(a) to the financial accounts for the financial year ended 30 June 2006.

· Current market valuation of the land recorded in the inventory at Note 5 to the financial accounts.

· Valuations of the land and building recorded at Note 6(a) to the financial accounts.

· All documents in support of the loans recorded at Notes 8 and 10 of the financial accounts for the financial year 2006.

· Its asset register.

That within 21 days ZL Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2005 (inclusive).

· All documents in support of the loans recorded at Note 4 of its financial accounts for the financial year ended 30 June 2006.

· Its asset register.

· Primary/source documents which support the loans recorded at Note 6 of its financial accounts for the financial year ended 30 June 2006.

That within 21 days Z Earth Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· Its asset register.

· All primary/source documents in support of loans recorded at Notes 4 and 7 of its financial accounts for the financial year ended 30 June 2006.

· Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006.

That within 21 days Z Hire Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006 (inclusive).

· Its asset register.

· All primary/source documents which support loans recorded at Notes 4 and 7 of its financial accounts for the financial year ended 30 June 2006.

That within 21 days ZSC Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· Detailed profit and loss statements for the financial year ended 30 June 2006.

· All primary/source documents which support loans recorded at Notes 4 and 6 of its financial accounts for the financial year ended 30 June 2006.

· Its asset register.

That within 21 days ZSB Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006 (inclusive).

· All primary/source documents which support loans recorded at Note 6 of its financial accounts for the financial year ended 30 June 2006.

· Its asset register.

That within 21 days Z Services Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· Deed of Company Arrangement.

· Schedule of debts forgiven in the financial year ended 30 June 2005.

That within 21 days Cook Street Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· Settlement statements for each sale by Cook Street Pty Ltd since 30 June 2002.

That within 21 days Cook Investments Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· The financial statements and taxation returns for Cook Investments Pty Ltd in its capacity as trustee of the Cook Equity Trust and in its own capacity from 30 June 2002 to 30 June 2006 inclusive.

10.

That within 21 days ZM Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· All financial accounts for the financial years ended 30 June 2002 to 30 June 2006.

· Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006 (inclusive).

11.

That by 21 December 2007 W, N and D Cook (in their capacity as the Cook Partnership) deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· All primary/source documents evidencing the creation of and movement in loans made by the partnership to X Land Pty Ltd, YA Pty Ltd, X Developments Pty Ltd, WL, Mr H, and XC Pty Ltd between 1 July 2000 and 30 June 2006.

12.

That within 21 days X Land Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· All primary/source documents which support the recorded loan to X Developments Pty Ltd.

· All primary/source documents which record investments in X Developments Pty Ltd, Cook Street Pty Ltd and in R Street.

13.

That within 21 days Cook Street Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· All primary/source documents in relation to the secured non-current loan of $2,601,042 in the financial year ended 30 June 2004.

14.

That within 21 days X Developments Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· All primary/source documents in relation to investments in XA Pty Ltd, XD Pty Ltd and XC Pty Ltd.

15.

That within 21 days XC Pty Ltd (as Trustee for XC Facility) deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· Market value of property recorded in the balance sheet as 30 June 2006 at $4,411,822.52.

16.

That within 21 days XA Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

· Market value of land and buildings referred to in financial accounts at 30 June 2006 at $2,753,566.

· The lease between XA Pty Ltd and its tenant.

17.

That the wife’s Form 2 application filed 1 December 2006 shall be otherwise dismissed.

18.

That all parties’ costs of this application shall be reserved.

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.