Cox & Cox - [2018] FamCA 620

FAMILY COURT OF AUSTRALIA

Cox & Cox [2018] FamCA 620

FAMILY LAW – PROPERTY – Interim proceedings – Injunctive powers pursuant to s 114 of the Family Law Act 1975 (Cth) – Matrimonial cause – Conflict between the parties – Business of the parties at risk of financial failure – Interim orders crafted to preserve the asset and do not create prejudice to either party.

Family Law Act 1975 (Cth) s 4(1)(e), 114

Jackson v Suburb J Industries Limited (1987) 162 CLR 612
R v Dovey, Ex-parte Ross (1979) 141 CLR 526
Waugh & Waugh (2000) FLC 93-052

APPLICANT: Mr Cox

RESPONDENT: Ms Cox

FILE NUMBER: ADC 710 of 2018

DATE DELIVERED: 17 August 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 10 August 2018
REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Clark

SOLICITOR FOR THE APPLICANT: Howe Jenkin

COUNSEL FOR THE RESPONDENT: Ms Kari

SOLICiTOR FOR THE RESPONDENT: Barnes Brinsley Shaw Lawyers

Orders
(1)That until further order the parties do forthwith appoint Mr B of C Accountants, (“Mr B”) as follows:-
(a)As Director of the following companies, with voting rights at any meeting of directors:-
(i)E Pty Ltd (ACN …);
(ii)D Pty Ltd (ACN …);
(iii)F Pty Ltd (ACN …),

(collectively referred to as “the companies”), with such appointment to occur at a meeting of the directors to be convened within twenty four (24) hours of the date of the making of these orders; and
(b)Upon Mr B being appointed as a Director of the companies, as Chairman of the companies and Executive Director of E Pty Ltd.

(2)That the parties do all such things as may be required to include Mr B in the Director and Officers liabilities insurance cover taken out for each of the companies at the cost of each of the companies and do provide an indemnity to Mr B for any liability incurred by him as a Director and Chairman of the companies in the ordinary course of business of the companies.
(3)That until further order the parties do attend all meetings of the directors of the companies and only attend at the business premises of the companies as directed by Mr B.
(4)That the parties do at the conclusion of the meeting of directors referred to in order 1, sign the written resolutions of the companies as annexed hereto as Appendix One to the reasons for judgment to give effect to orders 1 to 3 inclusive of these orders.
(5)That in default of either party signing the resolutions to effect orders 1 to 3 inclusive of these orders, pursuant to Section 106A of the Family Law Act 1975 (as amended), a Registrar or Deputy Registrar of the Family Court of Australia, upon proof by affidavit of such refusal or neglect, is hereby appointed to sign the resolutions on behalf of the defaulting party and do all such acts and things and execute such other documents as shall be necessary to give full force and effect thereto.
(6)That 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.

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Details

Case: [2018] FamCA 620
Decision Date: 17 August 2018

CaseChat Overview and Summary

In the matter of Cox & Cox, Berman J of the Family Court of Australia made orders concerning the directorship and management of three companies: E Pty Ltd, D Pty Ltd, and F Pty Ltd. The dispute involved parties who were required to appoint an independent director, Mr B of C Accountants, to these companies. The orders also addressed the provision of insurance and indemnities for Mr B, and regulated the attendance of the parties at company meetings and business premises.

The court was required to determine the appropriate interim orders to manage the affairs of the companies, particularly in light of potential disputes between the parties. This involved considering the appointment of an independent director with specific powers, ensuring that director's liabilities were covered, and establishing protocols for the parties' involvement in the companies' operations. The court also had to consider variations to previous orders made by the Federal Circuit Court of Australia.

Berman J reasoned that the appointment of an independent director was necessary to ensure the proper governance and operation of the companies. The court applied principles of company law and family law, particularly Section 106A of the Family Law Act 1975, which allows for the appointment of a Registrar or Deputy Registrar to execute documents on behalf of a defaulting party. The orders aimed to provide stability and prevent further deadlock or mismanagement of the companies pending further resolution of the underlying dispute. The court also varied existing orders to reflect the new arrangements.

Orders

Orders of the court

(1) That until further order the parties do forthwith appoint Mr B of C Accountants, (“Mr B”) as follows:-

(a) As Director of the following companies, with voting rights at any meeting of directors:-

(i) E Pty Ltd (ACN …);

(ii) D Pty Ltd (ACN …);

(iii) F Pty Ltd (ACN …),

(collectively referred to as “the companies”), with such appointment to occur at a meeting of the directors to be convened within twenty four (24) hours of the date of the making of these orders; and

(b) Upon Mr B being appointed as a Director of the companies, as Chairman of the companies and Executive Director of E Pty Ltd.

(2) That the parties do all such things as may be required to include Mr B in the Director and Officers liabilities insurance cover taken out for each of the companies at the cost of each of the companies and do provide an indemnity to Mr B for any liability incurred by him as a Director and Chairman of the companies in the ordinary course of business of the companies.

(3) That until further order the parties do attend all meetings of the directors of the companies and only attend at the business premises of the companies as directed by Mr B.

(4) That the parties do at the conclusion of the meeting of directors referred to in order 1, sign the written resolutions of the companies as annexed hereto as Appendix One to the reasons for judgment to give effect to orders 1 to 3 inclusive of these orders.

(5) That in default of either party signing the resolutions to effect orders 1 to 3 inclusive of these orders, pursuant to Section 106A of the Family Law Act 1975 (as amended), a Registrar or Deputy Registrar of the Family Court of Australia, upon proof by affidavit of such refusal or neglect, is hereby appointed to sign the resolutions on behalf of the defaulting party and do all such acts and things and execute such other documents as shall be necessary to give full force and effect thereto.

(6) That the orders of the Federal Circuit Court of Australia made in these proceedings on 26 March 2018 be varied to:-

(a) Delete subparagraph 1(b)(i);

(b) Delete the words “and provide the wife with unhindered access” in subparagraph 1(c); and order 2 be discharged.

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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