Dudley and Ryecroft - [2019] FamCA 752

FAMILY COURT OF AUSTRALIA

DUDLEY & RYECROFT

[2019] FamCA 752

FAMILY LAW – PROPERTY – Interim – Where the Respondent seeks an order for the sale of a property that is registered in the sole name of the Applicant, though in which the Respondent lives, and to restrain the funds the Applicant can draw against a line of credit secured by the mortgage of that property or alternatively to limit the amount that can be drawn by the Applicant – Where this is opposed by the Applicant who also seeks an order that the Respondent cause outstanding financial documents to be prepared and lodged with the Australian Taxation Office and to disclose certain financial documents – Where the Respondent’s applications are dismissed, but the Applicant is required to disclose to the Respondent on a monthly basis her drawings on the line of credit – Where the Respondent is ordered to take all reasonable steps to prepare and lodge the particular outstanding financial documents and to disclose particular financial documents to the Applicant as set out in the Orders.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Broxham & Broxham and Ors [2012] FamCA 775
In the Marriage of Waugh (2000) FLC 93-052
Mullen v De Bry (2006) FLC 93-293

APPLICANT:

Ms Dudley

RESPONDENT:

Mr Ryecroft

FILE NUMBER:

BRC

7473

2018

DATE DELIVERED:

18 October 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

30 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Looney QC

SOLICITOR FOR THE APPLICANT:

NR Barbi Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Drysdale

SOLICITOR FOR THE RESPONDENT:

Hirst & Co

Orders

That the Respondent’s application for orders that the real property situated at R Street, Suburb S in the State of Queensland registered in the sole name of the Applicant be sold, is dismissed.
That the Respondent’s application for orders restraining the Applicant from drawing further funds against a line of credit facility secured by mortgage against the said Suburb S property, is dismissed.
That the Respondent’s alternative application for an order limiting the amount of funds the Applicant can draw against that line of credit facility secured by mortgage against the said Suburb S property, is also dismissed.
That the Respondent take all reasonable steps to cause outstanding financial statements and annual tax returns for the entities listed in the table included at paragraph 30 of his affidavit filed in these proceedings on 20 September 2019 to be prepared within the limits of the timetable set out by him in that table, if not before, and lodged by no later than the dates allowed for by the Australian Taxation Office as deposed to by the Respondent in paragraph 48 of that same affidavit.
That Order (2) of the Orders of Registrar Coutts of 29 August 2018 be discharged.
That for the purposes of this Order “the companies and trusts” means the following entities:
(i)C Pty Ltd ATF the C Trust;
(ii)F Pty Ltd;
(iii)G Pty Ltd;
(iv)B…

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: [2019] FamCA 752
Decision Date: 18 October 2019

CaseChat Overview and Summary

In the matter of Dudley and Ryecroft, Forrest J of the Supreme Court of Queensland considered applications by the Respondent concerning real property registered in the sole name of the Applicant and a line of credit facility secured by a mortgage over that property. The Respondent sought orders for the sale of the property and to restrain or limit the Applicant's drawings against the line of credit.

The central legal issues before the Court were whether the Applicant should be restrained from drawing further funds against the line of credit, or alternatively, whether the amount of such drawings should be limited. The Court was also required to determine whether the Applicant's property should be sold.

Forrest J dismissed the Respondent's applications for orders that the property be sold and that the Applicant be restrained from drawing further funds against the line of credit, or that such drawings be limited. The Court ordered that the Respondent take all reasonable steps to cause outstanding financial statements and annual tax returns for a specified list of companies and trusts to be prepared and lodged by the Australian Taxation Office deadlines. The Court also discharged an earlier order made by Registrar Coutts and made detailed provisions for the monthly exchange of financial information between the parties' solicitors, including bank statements, financial statements, and MYOB backup files for the companies and trusts, as well as bank and credit card statements for the Applicant. The matter was listed for further mention before Forrest J for directions to ready the matter for trial.

Orders

Orders of the court

That the Respondent’s application for orders that the real property situated at R Street, Suburb S in the State of Queensland registered in the sole name of the Applicant be sold, is dismissed.

That the Respondent’s application for orders restraining the Applicant from drawing further funds against a line of credit facility secured by mortgage against the said Suburb S property, is dismissed.

That the Respondent’s alternative application for an order limiting the amount of funds the Applicant can draw against that line of credit facility secured by mortgage against the said Suburb S property, is also dismissed.

That the Respondent take all reasonable steps to cause outstanding financial statements and annual tax returns for the entities listed in the table included at paragraph 30 of his affidavit filed in these proceedings on 20 September 2019 to be prepared within the limits of the timetable set out by him in that table, if not before, and lodged by no later than the dates allowed for by the Australian Taxation Office as deposed to by the Respondent in paragraph 48 of that same affidavit.

That Order (2) of the Orders of Registrar Coutts of 29 August 2018 be discharged.

That for the purposes of this Order “the companies and trusts” means the following entities:

(i) C Pty Ltd ATF the C Trust;

(ii) F Pty Ltd;

(iii) G Pty Ltd;

(iv) B Pty Ltd ATF the B Trust;

(v) J Investments Pty Ltd;

(vi) J Pty Ltd;

(vii) L Pty Ltd ATF the L Trust;

(viii) J Pty Ltd ATF the E Trust; and

(ix) J Pty Ltd ATF the D Trust.

That within seven (7) days of the end of each month, the Respondent shall provide to the solicitors for the Applicant the following:

(i) Copies of the bank statements for all accounts, including loan accounts and credit card accounts, held in his name;

(ii) Copies of the bank statements for all accounts, including loan accounts and credit card accounts, held in the name of each of the companies and trusts;

(iii) Copies of the end of the month reports and financial statements for each of the companies and trusts;

(iv) Copies of any Business Activity Statements prepared for any of the companies and trusts in the immediately preceding month;

(v) Electronic copies in “read only” form of the MYOB backup files for each of the companies and trusts for all of the month just ended.

That within fourteen (14) days of the date of these orders, the Respondent shall provide to the solicitors for the Applicant electronic copies in “read only” form of the MYOB backup files for each of the companies and trusts for the financial years ended 30 June 2015, 30 June 2016, 30 June 2017, 30 June 2018 and 30 June 2019 and for this financial year to date in their current form regardless of whether they have been corrected or amended as yet.

That within seven (7) days of the finalisation of the amendment and correction of the MYOB backup files for each of the companies and trusts for the financial years ended 30 June 2015, 30 June 2016, 30 June 2017, 30 June 2018 and 30 June 2019 currently being undertaken by the Respondent’s accountant, the Respondent shall provide to the solicitors for the Applicant electronic copies of those amended files.

10.

That within seven (7) days of the end of each month, the Applicant shall provide to the solicitors for the Respondent copies of bank statements and credit card statements for all accounts, including loan accounts, held in her name and to the extent that those statements do not reveal what the wife’s drawings against the line of credit facility are actually used for, the Applicant shall cause that information to be provided in writing to the solicitors for the Respondent at the same time.

11.

That the directions hearing listed before Registrar Coutts on 17 December 2019, be vacated.

12.

That the matter be listed before his Honour Justice Forrest for further mention and the making of any directions necessary to continue to ready the matter for trial at 10.00 am on Thursday, 19 December 2019.

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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