Ganem and Ganem & Anor (No. 2)

[2012] FamCA 1119

FAMILY COURT OF AUSTRALIA

GANEM & GANEM AND ANOR (NO. 2) [2012] FamCA 1119

FAMILY LAW – ORDERS – Where nominated company Receivers are likely to be able to report on company and partnership income – Where it is prudent to reserve judgment on interim spousal maintenance and interim costs/property application until Receivers report received  – Where minor errors in original orders related to transposition errors and correct naming of Receivers – Whether orders can be corrected by slip rule or if parties need to be heard on the matter

APPLICANT: Ms Ganem

FIRST RESPONDENT: Mr Ganem

SECOND RESPONDENT: Ganem Pty Ltd

FILE NUMBER: SYC 931 of 2012

DATE DELIVERED: 17 December 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 13 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Siggins

SOLICITOR FOR THE APPLICANT: Mason Mia & Associates

COUNSEL FOR THE RESPONDENT: Mr Alexander

Orders

1. The operation of Orders 1, 2, 4 and 7 of orders made on 5 December 2012 are stayed for seven (7) days.

2. The parties have liberty to apply on short notice to vary or set aside the amended Orders 1, 2, 4 and 7.

3. Judgment in respect of the wife’s application for interim spousal maintenance and interim costs/property is reserved until after a copy of the first Receivers’ report is provided to me

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ganem & Ganem and Anor (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 931 of 2012

Ms Ganem

Applicant

And

Mr Ganem

First Respondent

And

Ganem Pty Ltd

Second Respondent

REASONS FOR JUDGMENT

1. On 13 November 2012 a suite of applications filed by the wife came before me in the duty list.

2. The first application, which was the focus of initial addresses, was her contempt application filed 3 September 2012.  The application contained 27 counts, the majority of which related to financial transactions said to have been undertaken by the husband in breach of orders made in this Court on 26 March 2012.  A number of counts related to the failure to provide documents and financial information. 

3. Both parties were represented by counsel.  Counsel were advised it would be impossible to hear 27 counts in a duty list.  However, if the number pressed was reduced to 10, it was feasible the hearing could proceed.  Somewhat surprisingly, the wife pressed for a hearing of all 27 counts and essentially it took until lunchtime before her counsel was in a position to confirm she would proceed with a smaller number.  By then, of course, most of the day was gone. 

4. At that point, the Court was informed there were interim applications adjourned to this date which the wife sought to press.  These comprised applications for injunctions, spousal maintenance and child support.  In the event the contempt application was adjourned and those applications were heard following which judgment was reserved.

5. In relation to the child support application, in answer to my question, the wife instructed there was a Child Support Administrative Assessment which could be produced.  Because an assessment is fundamental to jurisdiction the wife was directed to file a copy of the assessment within 48 hours.  Counsel for the wife subsequently advised there is no Child Support Administrative Assessment.  It follows the wife’s child support application is incompetent.

6. In the meantime, on 30 November 2012, the wife filed an urgent application which, in essence, sought the joinder of a private family company owned and operated by the parties, that nominated receivers be appointed to sell the parties’ business, Ganem Pty Ltd and to take control of the income and property of the parties’ partnership.  Ancillary orders were sought to give effect to those appointing receivers, with the receivers required to submit accounts monthly.

7. That application came before me on 5 December 2012.  The wife appeared represented by counsel and the husband appeared on his own behalf.  So that it is clear, he took legal advice before the hearing commenced.

8. This application was triggered by the husband taking steps to deregister Ganem Pty Ltd.  Also his claim that the company had failed to tender for transportation industry services which prior to separation was its mainstay.  There is a robust dispute about whether the husband submitted a tender using an alternate entity and whether the failure to tender in the company’s name is his or the wife’s fault.  Although that issue was not able to be determined, it appeared to be common ground that the company did not have a contract to continue to provide transportation industry services.  Thus, according to the husband, it has no income.  As the sole director he had paid outstanding expenses to contractors and, according to him, the company’s only assets now constitute two cars, one in his and the other in the wife’s possession.

9. It is unnecessary in these reasons to repeat my reasons for decision delivered 5 December 2012 for the appointment of Receivers and sale of the company.  Rather, it is sufficient to observe that the receivers are likely to shortly be in a position to report to the parties and thus to the Court in relation to the company and partnership income.  If, as the husband contends, the company’s income is lost, this has the potential to dramatically affect the wife’s interim spousal maintenance and interim costs/property application.  Thus, rather than proceed to judgment on an erroneous factual foundation, judgment on those matters is reserved until after a copy of the first Receivers’ report is provided to me.

10. After orders were made and reasons given on 5 December 2012 the wife’s solicitor wrote to my associate in the following terms:

    Dear [Associate],

    Further to our conversation yesterday, we have been advised by the receivers that there are 3 errors in the orders made.

    1.Orders 1 & 3 = the wrong A.C.N. for [Ganem Pty Ltd] has been stated it should read A.C.N. … instead of A.C.N. … . That is a one digit variation, most likely a transposition error.

    2.Order 4 - re the partnership known as [Mr and Ms Ganem Partners]  - this should read A.B.N. … instead of A.B.N. … – this has been correct in all consents and affidavits (as far as we can tell) so this this may be a transposition error made by the courts.

    3.Orders 2, 4, 7 - With regard to the orders noting that [F Partners], under the corporations Act, the receivers have been appointed as an entity (ie [F Partners], whereas [F Partners] have now advised that the actual persons need to be named as receivers – thus they should state “[Mr B]” and “[Mr A]” and not the entity. The mistake has come in  conversations between my office and [F Partners]. [F Partners] have had  urgent advice from a specialist insolvency lawyer and they have advised that the order has no meaning without these persons being named.

    I am not sure if the error is mine, but either way I can only apologise. I am unclear whether they can be corrected via the slip rule or not?

    [F Partners] have advised that they are meeting with [Mr Ganem] at 4pm.

    Can this be done in chambers, do we relist the matter or do we require an urgently listed Application in a Case?

    …

11. To the extent that the wife’s solicitor suggests that the errors in ABN or CAN numbering, the numbers included in the orders replicate those contained in the wife’s Application in a Case.  Again, the form of order in relation to the appointment of a Receiver replicates the orders sought by the wife.  Nonetheless it is now apparent that the orders require rectification which step, it is accepted, can properly be made pursuant to the slip rule.  However, for an abundance of caution the parties will each be given seven days to apply if they wish to be heard in relation to these amendments.

12. For these reasons, orders are made as set out at the commencement of this judgment.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 17 December 2012.

Associate:     

Date:              17 December 2012