D'Cruz and Pierce and Ors (No. 2)

This case involved a dispute between the husband and wife, with the second respondent, Mr C Pierce, being a significant party. The court was required to determine the validity of certain partnership and shareholding agreements, the beneficial ownership of shares in K Australia Pty Ltd, and to make orders concerning various corporate entities and trusts. The proceedings also addressed the setting aside of a deed of retirement and the appointment of directors and shareholders in BNE Pty Ltd.

The central legal issues before Dessau J were whether the oral partnership agreement of March 1996 and the written agreement of June 1996 between the husband and Mr C Pierce were shams, and consequently, of no effect. The court also had to determine the beneficial ownership of shares in K Australia Pty Ltd from 31 March 1996. Furthermore, the court was tasked with making orders regarding the preservation of assets held by Mr C Pierce and various corporate entities, the discharge of previous orders, the setting aside of a deed of retirement, and the appointment of directors and shareholders in BNE Pty Ltd.

Dessau J found that the purported equal partnership agreements were shams and therefore of no effect. The court declared that from 31 March 1996, the husband was the beneficial owner of the shares in K Australia Pty Ltd. The court then made extensive orders, including restraining Mr C Pierce from resigning from offices or powers of appointment in specified corporate entities and trusts, and from dealing with or diminishing the value of property in which he had a legal or beneficial interest, or property held by those entities. Certain exceptions were made to these restraints, allowing for payments to the Australian Taxation Office, education costs, access to superannuation and personal bank accounts, and the completion of construction on a property, subject to specific conditions and consents. The court also set aside a deed of retirement pursuant to s106B of the Family Law Act 1975 and ordered the husband, wife, and fifth respondent to take steps to appoint the husband and wife as directors and equal shareholders of BNE Pty Ltd. Mr C Pierce was also ordered to retire as guardian of the M Pierce Trust. Orders were made regarding the filing of submissions for costs and the issuance of a certificate to the second respondent under s128(7) of the Evidence Act. Finally, by consent, orders were made concerning the parties' approach to the Australian Taxation Office, including the timing for providing written proposals, advising of disagreements, and conferring on any such disagreements, with liberty to apply.