Dudley and Ryecroft

[2018] FamCA 1009

FAMILY COURT OF AUSTRALIA

DUDLEY & RYECROFT [2018] FamCA 1009

FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties believe the Court made a mistake in respect of the Orders made and seek to make an amendment under the slip rule – Where the Court is not convinced that the suggested mistake occurred – Where the parties are in clear agreement as to the amendments they seek – Where the Court makes the Orders as amended with the consent of the parties.

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

APPLICANT: Ms Dudley

RESPONDENT: Mr Ryecroft

FILE NUMBER: BRC 7473 of 2018

DATE DELIVERED: 4 December 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 30 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: NR Barbi Solicitors

COUNSEL FOR THE RESPONDENT: Mr Williams

SOLICITOR FOR THE RESPONDENT: Hirst & Co

ORDERS

IT IS ORDERED

(1A)    That the Order made on 12 November 2018 be discharged.

IT IS ORDERED UNTIL FURTHER ORDER

BY CONSENT

For the purposes of these Orders it is noted that:

A.“ordinary course of business” in respect of these Orders and the Entities is only the existing business activities …; and

B.the Entities referred to are defined as:

a.B Trust;

b.C Trust;

c.D Trust;

d.E Trust;

e.F Pty Ltd;

f.G Pty Ltd;

g.H Pty Ltd;

h.J Pty Ltd;

i.K Pty Ltd;

j.L Pty Ltd;

k.M Trust;

l.N Pty Ltd;

m.O Pty Ltd.

1. That paragraph 4 of the interim orders sought in the Further Amended Initiating Application filed 3 August 2018, be adjourned to the final hearing of the matter.

2. That the Applicant’s application for interim spouse maintenance and interim legal cost funding be dismissed. 

IT IS FURTHER ORDERED

1. That save in respect of the companies, K Pty Ltd and N Pty Ltd, and other than in the ordinary course of business, the Respondent be restrained and an injunction hereby issue, restraining the Respondent from dealing, in any way, with the real property described as:

   (a)1, 2 and 3 T Street, Suburb S in the State of Queensland more particularly described as …; and

   (b)1 -10 P Street, Suburb Q in the state of Queensland more particularly described as … (“the Properties”).

2. That the Respondent provide to the Applicant a copy of any written offer for purchase of any of the Properties, within 48 hours of receipt of the offer.

3. That save in respect of the companies, K Pty Ltd and N Pty Ltd, the Respondent provide to the Applicant a copy of any signed contract for sale in respect of any of the Properties, within 24 hours of the contract date.

4. That the Respondent provide to the Applicant seven (7) days prior written notice of any transaction(s) which has the effect of increasing any indebtedness in respect of any existing loan facilities in respect of himself personally, or in relation to the Properties, the Entities or any other entity in which he has an interest. 

5. That the Respondent advise the Applicant, in writing, of how he intends to deal (either personally or by any entity he controls or in which he has an interest) with any sale proceeds of the Properties, not less than seven (7) days prior to settlement.

6. That save in respect of the companies, K Pty Ltd and N Pty Ltd the Respondent, both personally and in respect of any entity that he controls, or in which he has an interest, including the Entities, must keep the Applicant informed not less than seven (7) days prior to obtaining any further loan in respect of the Properties or the Entities.

7. That save in respect of the companies, K Pty Ltd and N Pty Ltd, other than in the ordinary course of business, the Respondent is hereby restrained from investing funds and/or establishing any new business, with the use of any funds the subject of these proceedings, without first obtaining the Applicant’s written consent, or order of the Court. 

8. That the Respondent, in his capacity as a director and/or shareholder of any entity, including the Entities, is restrained by injunction from:

   (a)selling, transferring, assigning, encumbering or otherwise dealing with his shares;

   (b)in his capacity as appointor of:

   (i)B Trust;

   (ii)C Trust;

   (iii)D Trust;

   (iv)E Trust; and

   (v)M Trust;

   or any other trust of which he is appointor (the trusts) from taking any steps to accept resignations and/or exercise power of appointment in respect of the trusts without providing to the Applicant not less than 14 days written notice.

IT IS FURTHER ORDERED BY CONSENT

1. That by 4.00 pm on 2 November 2018, the Applicant shall do all acts and things to withdraw the registered caveats lodged against the real property owned by the companies and the trusts and provide notification of such withdrawal to the Respondent.

2. That the Applicant be at liberty to arrange for a condition report to be obtained on the R Street Property from a third party that in this regard she is to provide a panel of three persons to the Respondent with him to select one such person within seven days of receipt, failing which she be at liberty to nominate. Further the Respondent will permit access to the R Street Property and for this purpose the Applicant shall be responsible for the payment of the person’s fees.

3. That the Respondent personally attend to payment of the municipal rates, water charges, insurance and maintenance for R Street, Suburb S (“the R Street Property”) and indemnify the Applicant against any liability that may arise from any claim made against the household insurance for the R Street Property whilst the Respondent has been in residence (since May 2015).

4. That within seven days the Respondent will take all steps to cause the present tenants to vacate the R Street Property and must confirm in writing to the Applicant that they have done so. Thereafter, the Respondent is restrained by injunction from permitting any further persons (other than family members and personal relationships) to reside in the premises, without first providing seven days notice to the Applicant of whomever it is that is intended to reside in the R Street Property.

5. That until such time as the present occupants vacate the R Street Property, or in the event that the Respondent permits any other persons to occupy the premises, the Respondent indemnifies by this order the Applicant and keeps her indemnified in respect of any expenses and liabilities arising in consequence of the present occupants or any further occupants.

IT IS FURTHER ORDERED

1. That within 14 days hereof the Applicant shall cause the $17,000 cash held by her to be paid into the bank account of the company whose asset that money is, the details of that company’s bank account to be provided to her by the Respondent.

2. That within 14 days hereof the Applicant shall cause the VW motor car held by her and her daughter to be returned to the company whose asset that car is, the details of where the car is to be returned to be provided to her by the Respondent.

IT IS FURTHER ORDERED BY CONSENT

1. That within seven days of the date of this order, the Respondent must provide to the Applicant an updated Financial Statement that includes all bank accounts for which he has an interest, either personally or otherwise, including the Entities.

IT IS FURTHER ORDERED

1. That within seven (7) days of the date of this order, the Applicant provide to the Respondent a list of three (3) valuers, being separate lists for land valuation and for company/business valuation, to undertake a valuation of all real property and company/business entity/trusts operated by the Applicant and Respondent jointly and/or by the Respondent solely.

2. That the Respondent must select a valuer from the respective lists and communicate his selection to the solicitor for the Applicant within a further seven (7) days.

3. That the parties jointly instruct the selected valuers and agree to appoint same as court experts pursuant to the Family Court Rules.

4. That the parties are to share equally in the costs of the valuations so obtained.

IT IS FURTHER ORDERED BY CONSENT

1. That costs of and incidental to this application be reserved to the Trial Judge.

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 Dudley & Ryecroft has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7473 of 2018

Ms Dudley

Applicant

And

Mr Ryecroft

Respondent

REASONS FOR JUDGMENT

1. On 12 November 2018, I made Orders and published reasons for those Orders in determining an interim dispute between the parties in this matter pertaining to their financial affairs.

2. Some days later, I received a letter, co-signed by each of the solicitors for the parties, referring to my Orders and my written reasons and jointly putting the proposition to me that I had made a mistake in respect of the Orders and asking me to use the “slip-rule” to amend the Orders.

3. Firstly, I observe that upon reviewing the Orders and my reasons and listening to the oral submissions of counsel for the parties, I was not convinced that I had actually made a mistake as suggested. Secondly, however, I considered that as the parties were clearly in agreement that the Orders I had made should be amended, I should have my Associate write to them and inform them that they should, given that agreement, send me a draft of the amended form of my Orders that they jointly asked me to make.

4. About twelve days later, I received that draft set of amended Orders under cover of a letter jointly signed by each of the solicitors for the parties.

5. Accordingly, I make the Orders, as amended, with the consent of the parties.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 4 December 2018.

Associate: 

Date:  4 December 2018