GILLARD & GILLARD

[2015] FamCA 1082

FAMILY COURT OF AUSTRALIA

GILLARD & GILLARD [2015] FamCA 1082

FAMILY LAW – PROCESS AND PROCEDURE – Subpoenas

APPLICANT: Mr Gillard

RESPONDENT: Ms Gillard

FILE NUMBER: SYC 396 of 2012

DATE DELIVERED: 10 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 10 November 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Cooper Family Law

SOLICITOR FOR THE RESPONDENT: Ziman & Ziman

Orders

1. The wife is restrained from selling, encumbering or in any other way dealing with the shares that she currently now holds in B Limited and in the event that Mr C wishes to make any type of application to the court, I will give him leave to become a party to the proceedings for that purpose

2. I dismiss the objection of the Registrar’s decision and the subpoenas will be allowed to be issued.

3. Within 21 days the companies are to produce the documents required by the subpoenas to the Exhibit Sections.

4. This matter be adjourned to 9am on 4 February 2016. The solicitor for the husband may attend by telephone by dialling 1800 132 423 and at prompt enter password 978 028 0508

5. Leave granted to the solicitors for the wife to apply to me in chambers for the issue of further subpoenas after receiving the consent or otherwise from the solicitors for the husband.

6. Within 21 days the wife file a further affidavit containing all the evidence upon which she seeks to rely about assets in or assets which have been removed from the Gillard Superannuation Fund (the wife asserts this may involve assets of a value of $1.7 million).

7. After seeking the husband’s consent, leave is given to seek orders by consent for the issue of any further subpoena relating to the Gillard Superannuation Fund. I will deal with the issue of any contested subpoena on 4 February 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gillard & Gillard 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 396  of 2012

Mr Gillard

Applicant

And

Ms Gillard

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The husband filed an Application in which he seeks that an order made by Justice Aldridge by consent on 4 February 2015 be amended under the slip rule. Order 2 made 4 February 2015 is in the following terms:

   That the parties do all things and sign all documents to cause to be transferred to the wife the husband’s 1,493,335 shares in [B Limited], howsoever held.

2. The husband says that he only had a beneficial entitlement through D Pty Ltd of 1,045,335 shares being 70 percent of the shares referred to in the order and that Mr C was beneficially entitled to the other 30 percent of the shares. The wife does not accept this proposition nor does she accept there was a slip by the lawyers on the day the orders were made.

3. It is not controversial that B Limited has now transferred 1,493,335 shares to the wife. Both the husband and Mr C say that that has happened without D Pty Ltd signing a share transfer. It is likely, on what I have been told so far, that what happened was the wife sent a copy of the court’s orders of 4 February 2015 to B Limited and they acted as if the order was directed to them to transfer the shares when in fact the order required the husband to sign a share transfer on behalf of D Pty Ltd to transfer the shares. The husband is a director of D Pty Ltd.

4. It seems that D Pty Ltd has no other assets, part from these shares in B Limited and the husband says to transfer the whole of the assets of the company to the wife would create oppression in respect of the minority shareholder, Mr C. Mr C has not sought to become a party to the proceedings but has provided an affidavit to the husband for use in the husband’s case.

5. The wife agrees that these shares in B Limited should be frozen until the final hearing.

6. Firstly, I will injunct the wife from selling, encumbering or in any other way dealing with the shares that she currently now holds in B Limited and in the event that Mr C wishes to make any type of application to the court, I will give him leave to become a party to the proceedings for that purpose.

7. I note that the husband says that the shares in B Limited are worthless. The wife believes they are of some significant value. She is now currently the legal owner of those shares and it is within her purview to be able to get them valued if she wishes to do so.

8. In relation to the other application, on 27 May 2015 Registrar Campbell delivered reasons and made orders in respect of objections raised by three companies that had been subpoenaed to provide records. Those companies were E Pty Ltd, F Pty Ltd, and G Pty Ltd. The objections were dismissed by the Registrar and that decision by the Registrar has been reviewed by the companies. The actual original subpoenas were filed by the wife on 11 December 2014 and in respect of each of the three companies, the wife sought basic financial records by way of financial statements for certain years and tax returns and assessments and BAS statements, the years being 2013 and 2014. The wife also sought all bank statements from the companies for the year ended 30 June 2014.

9. It is not in dispute that these three companies are the alto-ego of Ms H whom the wife alleges is in a de facto relationship with the husband. Both the husband and Ms H deny that there is any de facto relationship. Mr Cooper points out that the central assertion in the wife’s case is that some type of information or intellectual property has been transferred to these companies by the husband and the documents subpoenaed would not give any information or provide any further clue in respect to that issue. Until they are discovered there is no way of knowing what is on the balance sheet of these companies and no way of knowing whether or not any bank statements of the companies would give any clue.

10. The wife has filed evidence that there has been some financial inter-relationship between the husband and Ms H. She draws a link between mutual accountants. Mr Cooper is acting for everybody, that is, the husband, Ms H and Ms H’ companies. The husband’s address is I Street, Suburb J, Queensland.  The wife has annexed to her affidavit a copy of personal records of Ms H which bears that address. There is an ASIC extract of each of the companies which lists Ms H as a director at that same address. The wife contends that for the last three years, two cars have been parked in the garage of the home at I Street and the husband concedes that those cars belong to himself and Ms H.

11. The wife also annexes to her affidavit a summary of amounts spent by the husband from his bank accounts for personal purchases made by Ms H, including at various women’s stores. During the period July 2011 to May 2012 the husband also transferred to Ms H an amount of about $57,500. Funds were also transferred from the husband and Ms H on 2 November 2011, 29 November 2011, 1 December 2011, 28 December 2011. The copy of bank accounts from two of the companies are annexed to the wife’s material and the husband and Ms H both share a common post office number, namely post office box 2273. Payments have also been made by one of the companies, Lyndall Resources, in respect of rent for the I Street property. There is a newsletter from a Rotary Club which pictures the husband and Ms H and refers to Ms H as the husband’s partner. The husband and Ms H seem to have travelled together to Europe during December 2012/January 2013. There is a transfer of 10,000 Qantas family frequent flyer points from the husband to Ms H.

12. Both the husband and Ms H give evidence that they are not in any relationship whatsoever. Ms H in her updated affidavit of July swears to the fact that the husband has no interest in any of her corporate entities, nor is he in any way a beneficiary of any arrangements with the companies, saying the companies have nothing whatsoever to do with the husband.

13. One of Ms H’s sons filed an affidavit saying similar things in relation to G Pty Ltd and he also contends that G Pty Ltd has nothing to do with the husband.

14. A submission is made that this is a fishing expedition by the wife in relation to the financials of companies that have nothing to do with the husband. I am unable to reach that conclusion at this preliminary stage. The documents requested are very basic documents. Although I am not sure how far it will get the wife to have them, I am unable to say that they will be clearly irrelevant.

15. I should also say quite clearly that the matters I have touched on are information I have, untested at an interim stage. I am not in any way making a finding one way or the other as to what the extent of any financial relationship between the husband and Ms H, but there is sufficient there to provide me with a basis of allowing the subpoenas to be issued.

16. So the order I would make is to dismiss the objection of the Registrar’s decision and the subpoenas will be allowed to be issued. Ms H is to produce that information within 14 days.

I certify that the preceding sixteen (16) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 10 November 2015.

Associate: 

Date:  30.11.15