GLOVER & WEBSTER
[2020] FamCA 422
•29 May 2020
FAMILY COURT OF AUSTRALIA
| GLOVER & WEBSTER | [2020] FamCA 422 |
| FAMILY LAW – PRACTICE AND PROCEDURE – whether the proceedings should be listed for a discrete hearing to determine whether there exists any property not covered by the binding financial agreement between the parties FAMILY LAW – PROPERTY – where the de facto wife seeks the sum of $225,000 for litigation funding – where the Court finds $20,000 is more appropriate – where the de facto husband may have little prospect of receiving the sum of $20,000 (or any part of his costs) from the de facto wife – where the Court takes that detriment to the de facto husband into account – order made for the de facto husband to pay to the de facto wife $20,000 by way of interim property adjustment FAMILY LAW – INJUNCTIONS – where the de facto wife seeks to restrain the de facto husband from the use and operation of various entities – application dismissed |
| Family Law Act 1975 (Cth) ss 90SM, 79 Family Law Rules 2004 (Cth) rr.1.04, 10.13 |
| Webster & Glover [2018] FCCA 3340 Esdale & Schenk [2012] FamCA 111 Atkins & Hunt and Ors [2018] FamCA 14 Zschokke & Zschokke (1996) FLC 92-693 Strahan & Strahan (Interim Property Orders) (2011) FLC 93-46 Harris & Harris (1993) FLC 92-378 Tsiang & Wu and Ors [2019] FamCAFC 128 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Mullen and De Bry (2006) FLC 93-293 Palmer v Parbery [2019] QCA 27 |
| APPLICANT: | Ms Glover |
| RESPONDENT: | Mr Webster |
| FILE NUMBER: | BRC | 11228 | of | 2016 |
| DATE DELIVERED: | 29 May 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 20 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr R Galloway (direct brief) |
| COUNSEL FOR THE RESPONDENT: | Mr J Bunning |
| SOLICITOR FOR THE RESPONDENT: | Damien Greer Lawyers |
Orders
That by way of interim property adjustment, the Respondent pay to the Applicant the sum of $20,000 within thirty (30) days of the date of this Order.
That the Applicant’s application for injunctive relief be dismissed.
That these proceedings be adjourned for Case Management Hearing at 9.30am on 9 July 2020 in the Family Court of Australia at Brisbane.
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 Webster & Glover 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 11228 of 2016
| Ms Glover |
Applicant
And
| Mr Webster |
Respondent
REASONS FOR JUDGMENT
Introduction
After commencing proceedings in the Federal Circuit Court of Australia in November 2016, the Respondent Mr Webster (aged 69 years) and the Applicant Ms Glover (aged 58 years) have been locked in litigation arising from a de facto relationship which commenced in July 2010 and ended in June 2015.
The critical issue as to whether a financial agreement signed on 1 July 2010 was binding (as the Respondent sought) or should be declared non-binding or otherwise set aside (as the Applicant sought), was determined by Judge Jarrett for the Reasons he published on 16 November 2018 (see Webster & Glover [2018] FCCA 3340)
His Honour on 17 December 2018 ordered that:
“1.The financial agreement dated 1 July, 2010 and signed by the parties is binding.
2.The respondents file and serve by no later than 4:00pm on 15 February, 2019 points of claim that identify:
(a)the property they say is available for an order pursuant to s.90SM of the Family Law Act 1975 (Cth);
(b)which property is covered by the binding financial agreement;
(c)which property is not covered by the binding financial agreement;
(d)the contributions made on behalf of the parties to the acquisition, conservation or improvement of any of the property of the parties not covered by the binding financial agreement; and
(e)the relief that the first respondent seeks.
3.The applicants file by no later than 4:00pm on 15 March, 2019 points of defence.
4.The respondent file and serve by no later than 4:00pm on 22 March, 2019 a reply, if any.
5.The application is adjourned to a date to be fixed for directions.”
and after apparent compliance in May 2019, Judge Jarrett ordered the matter to be listed for final hearing. No appeal against the Orders of Judge Jarrett was filed. A Federal Circuit Court judge confronted with an urgent Application in a Case filed by the Applicant on 30 August 2019, and with the consent of the parties, transferred the proceedings to this Court on 26 September 2019.
Ultimately the applications came before me on 22 January 2020, when I adjourned certain matters contained in the application, for interim hearing on 22 February 2020.
The applications so adjourned were the Applicant’s claim for the orders set out at paragraphs 1, 2 and 3 (save for the amount of $400,000) and 5 of the amended Application in a Case filed on 10 January 2020 which were:
“1.That the applicant, Mr Webster and Anor desist from disposing funds and selling business and properties pertaining to the asset pool in this property settlement.
2.That the applicant, Mr Webster & Anor co-operate with the Family Law and Federal Circuit Court Rules to fully disclose details of his financial assets including his self managed superannuation fund.
3.(AMENDED) That the applicant, Mr Webster and anor pay the respondent, Ms Glover and anor’s ongoing legal fees until the conclusion of a fair and equitable Family Law settlement, including preparation for, and representation by a solicitor and barrister for the duration of a proposed five day trial. Furthermore, that the applicant reimburse the respondent the $400,000 in legal fees she has expended in defending herself from this vindictive legal action.
…
5.(AMENDED) That a specialist valuer be appointed by the court to value the combined property pool of the applicant and respondent, as the applicant (WEBSTER) consistently refuses to fully disclose as required by the rules despite repeated orders to do so. That the applicant, the moneyed party, pay the cost of this valuer and that these fees be deducted from final settlement funds. That a valuer from the below list be selected by the court at the hearing on January 22, 2020 and that a requirement is the valuation be completed in time for the forthcoming five day trial.
·Mr B GG Company
·Mr C D Company
·Mr E F Company”
On 20 February 2020 Mr Galloway of Counsel (on a direct brief) appeared for the Applicant Ms Glover and Mr Bunning of Counsel appeared for the Respondent Mr Webster.
Contextual history
During the course of the relationship, interests in real property were acquired by corporate entities. Ms Glover asserts she worked extensively in the development and management of the property management businesses during the relationship.
She further asserts that Mr Webster kept assuring her that she was a co-owner and beneficiary in the business – an allegation denied by Mr Webster. This issue is briefly dealt with by Judge Jarrett in his Reasons at [77]-[82] where he says:
“77.Ms Glover’s case is that in about the middle of 2011 she and Mr Webster commenced discussing the development of a property management business venture that Mr Webster wished to purchase. He wished to use Ms Glover’s skills to develop that business. Ms Glover’s evidence is that she worked extensively in that business and Mr Webster kept assuring her that she was a co-owner and beneficiary in the business as a result of all of her hard work. Her case is that she and Mr Webster were to buy and run the property management business as a partnership and she was encouraged in that belief by Mr Webster.
78.In November, 2011 Mr Webster established a company, G Pty Ltd. Mr Webster was the sole shareholder in that company but now the shares are held by H Pty Ltd according to Ms Glover’s evidence the parties purchased some property management businesses using corporate entities, J Pty Ltd, K Pty Ltd and L Pty Ltd. Ms Glover was a director of at least J Pty Ltd and K Pty Ltd. Ms Glover asserts, and it seems to be the case that Mr Webster also established three other companies, M Pty Ltd, N Pty Ltd and P Pty Ltd each to manage particular real property developments. Ms Glover asserts, although it is in contention, that she “ran the businesses without any assistance from Mr Webster”. Her case is that she made considerable contribution to what she describes as the “Queensland property management businesses”.
79.In 2012 Ms Glover says that she identified a property to purchase and using a corporate vehicle called Q Pty Ltd the management rights for certain real property known as “JJ Properties” and the manager’s premises attached to the property. Ms Glover’s company, R Pty Ltd and Mr Webster’s company S Pty Ltd were the shareholders in Q Pty Ltd. Ms Glover was the sole director of that company. The parties, as directors of their respective corporate entities, entered into a shareholders’ agreement regarding the management of shareholdings in Q Pty Ltd.
80.Ms Glover argues that by reason of these business dealings with Mr Webster, Mr Webster evinced an intention not to be bound by clause 8 of the financial agreement because they purchased and became co-owners of property in a way or ways other than contemplated by clause 8.
81.However, the acquisition of the property management businesses via corporate vehicles is not inconsistent with clause 8 of the parties financial agreement because:
a)it is the corporate vehicles which have purchased the relevant property – the management rights and perhaps real estate attached to those rights;
b)the parties’ interests in those businesses are only indirect in the sense that they are shareholders in the corporate entities that conduct the businesses (where they are each shareholders); and
c)in most cases, however, the shareholders in the relevant companies are not the parties themselves, but corporate vehicles (that is to say separate legal entities) in which the parties directly or indirectly have an interest.
82.Clause 8 is only engaged in the event that the parties acquired property jointly. Here the relevant property has not been acquired jointly.”
Clause 8 of the binding financial agreement (“BFA”) provides that:
“8.If any property is acquired jointly during the relationship, the parties shall acquire that property as tenants in common in equal shares. The parties shall contribute equally towards any loan repayments if they are required to borrow money, either in relation to the acquisition of the property or in relation to the subsequent improvement of the property. They shall be equally liable for the repayment of the loan. Within 30 days of the date of separation, the parties shall do all acts and things and sign all necessary documents in order to sell all jointly acquired property. The manner of sale shall be determined by the proper officer of the Auctioneers and Valuers Association or his nominee. The net proceeds of sale of the property shall be equally divided after deduction of all sale expenses, including GST, selling agent’s fees, legal costs of the sale and any outstanding loan is secured against the property.”
The issue that is now fundamental to the parties’ dispute is whether the Queensland property management businesses are covered by the parties’ BFA or not. If not, then the BFA cannot operate as a bar to the Court making property adjustment orders under s 90SM of the Act. In the case management of these matters by Judge Jarrett, he was clearly alert to this dispute as his Orders of 17 December 2018 directed pleadings to be filed by the parties on the issue.
Ms Glover’s points of claim filed 15 February 2019 at paragraph 8 particularise the assets “acquired after the execution of the BFA” which it is asserted are not covered by the BFA. In short the argument appears to be that the BFA does not cover “property acquired after the execution of the financial agreement…being acquired with that party’s sole earnings or other income received during the relationship and in particular does not cover any interest acquired indirectly in a company, trust or other entity.” The Respondent Mr Webster says, at paragraph 6 of his defence filed 15 March 2019, that whilst he admits the acquisitions by the entities identified by the Respondent occurred after the execution of the BFA, he “did not acquire a beneficial interest in those companies, trusts or entities” and accordingly he denies the assets “are not covered by the” BFA.
In this circumstances, I regard the issue, although potentially complex, is essentially a matter of construction and interpretation of the BFA terms. In this context, the Court is asked to consider the following interlocutory issues, namely:
a)whether to list, for discrete hearing, the issue of whether there exists any property not covered by the BFA; and
b)the application by Ms Glover for litigation funding; and
c)injunctive relief directed to the Respondent Mr Webster seeking to restrain his use and operation of the various entities.
Before dealing with these issues sequentially, to provide further context, and noting that no cross-examination of the parties has been undertaken and the parties, particularly the Applicant Ms Glover, relies on extensive and voluminous material about contributions to the acquisition, preservation and maintenance of assets she says are not covered by the BFA, I record the following brief summary of the parties’ financial position:
A.Ms Glover: By her Financial Statement filed 13 November 2019, the Applicant deposes that:
i)her total income is $400 per week which seems to be based on her 2016 “draft’ tax return;
ii)she has annexed to her Financial Statement notes which purport to say that she has:
1.80% interest in Q Pty Ltd (in receivership) with a negative equity of $2,300,000;
2.100% interest in 10 units at T Street, V City, Tasmania and a property at W Street, Suburb X, New South Wales with a combined gross value of $1,980,000 (which amount currently includes unit Y Street, Suburb Z at $630,000); and
3.a liability to the National Australia Bank over the V City and Suburb X properties totalling $1,628,072 (although this is not the figure set out at Item 47).
a)Frankly, the Financial Statement is poorly drawn and difficult to understand. Mr Bunning for Mr Webster relied upon an earlier Financial Statement filed 25 January 2017 by Ms Glover, which detailed gross assets at Item 44 of $4,412,115 (including an estimated $1,112,115 for interests in Q Pty Ltd (E$948,615) and R Pty Ltd (E$163,500). Liabilities in this Financial Statement are said to include $1,719,942 over the V City and Suburb X properties and $450,000 over the property at AA Town;
b)All in all, at the hearing before me the Counsel for Ms Glover asserted at this time that she has a lack of financial capacity, either in terms of income or assets available to her.
B.Mr Webster: By his Financial Statement filed 29 November 2019, Mr Webster deposes that:
i)he has weekly gross income (including payments from a superannuation pension) of $5,185;
ii)his weekly expenses total $1,921 (leaving a nett amount available to him of over $3,000 per week);
iii)he holds assets (principally the unencumbered 100% interest in BB Street, CC Town at $2,000,000 and his investment in DD Company Mutual Funds of $723,674) of $3,326,944 with debts of only $2,000; and
iv)he holds an interest as a member in FF Superannuation (a self-managed superannuation fund) estimated at that time as having a value of $3,804,455.
a)On any assessment, Mr Webster is in a much superior financial position than is Ms Glover.
Discrete hearing
Rule 1.04 of the Family Law Rules 2004 (“the Rules”) provides that the main purpose of the Rules is to “ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case.” The Rules also provide for a discrete hearing on an issue to be conducted (Rule 10.13).
Although Counsel for the Applicant Ms Glover opposes a discrete hearing, I have decided that with the history of this litigation; the financial circumstances of the Applicant being so precarious and the fact that Ms Glover has already incurred (or paid costs) on her estimate of approximately $470,000, it is consistent with the purpose identified by the Rules to conduct a discrete hearing on whether the assets/interests identified by the Applicant at paragraph 8 of her statement of claim are assets/interests not covered by the BFA or whether, as the Respondent asserts, they are so covered and therefore not amenable to relief under s 90SM of the Family Law Act 1975 (“the Act”).
In this respect, I agree essentially with the submission of Mr Bunning for the Respondent at paragraph 14 that after the decision of Judge Jarrett there remains a further question to be answered. As this is a question of interpretation I am satisfied it is appropriate for a discrete hearing and:
a)if the Court rules that the interests are covered by the BFA, then no further relief under s 90SM would be available and the proceedings would be at an end, save for any enforcement type applications and, possibly, costs applications; and
b)if the Court rules that the interests are not covered, then it will be necessary to conduct a further case management hearing as to discovery and/or valuations relating to remaining interest. There is no utility in considering these further issues – which could be costly to investigate and where the Applicant Ms Glover says she has no current financial capacity to undertake – unless the Court rules in her favour on the discrete issue.
As a result, this question will be listed for a discrete issue. In my view, costs to the parties can be minimised as both parties have sworn extensive Affidavits. Limited cross-examination may be necessary, although it seems that many of the facts relating to the entities is not controversial. I accept it is the case Ms Glover pursues, that the parties’ expressed intentions are not met by how the entities were incorporated and held.
Much of the issue is really an issue of interpretation, not really necessary for cross-examination, but rather proper submissions on the law of construction. It is in this context that I now deal with the application for litigation funding.
Litigation funding
The principles associated with such applications are well settled.
I deal with the claim under s79 first below, because as Murphy J correctly observed in Esdale & Schenk [2012] FamCA 111 and was adopted by Watts J in Atkins & Hunt and Ors [2018] FamCA 14:
“… that certainly since the Full Court’s decision in Strahan [& Strahan (Interim Property Orders) (2011) FLC 93-466] it is usual for a financially disadvantaged party to rely upon s 79 as the power to obtain a lump sum interim property settlement order for the purposes of funding litigation.”
The Full Court in Zschokke & Zschokke (1996) FLC 92-693, which was adopted by the Full Court in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-46 identified three primary factors relevant to the exercise of the discretionary power under s 79, namely:
a)a position of relative financial strength on the part of the Respondent;
b)the Respondent’s own capacity to meet legal expenses; and
c)an inability on the part of the Applicant to pay her own costs.
It is not necessary to establish compelling reasons and the “overarching consideration” is the interest of justice. The exercise of the discretion must be appropriate with the power to be exercised within the framework of s 79 but exercised conservatively (see Harris & Harris (1993) FLC 92-378).
As the Applicant relies also upon s 117, the authorities make it clear that even on an interlocutory basis, before the Court can allow a departure from the usual rule in s 117(1) (that each party bear their own costs), it is necessary to establish that pursuant to s 117(2A) there are circumstances which justify the departure. If those considerations are met the order made must be just.
Applying these principles to the facts in this case, I find that:
a)as a discrete hearing has been ordered, this will mean a significant expense associated with valuations can be postponed, or depending on the result of the application, not incurred at all. The costs estimated by the Applicant at $223,120 is said to support an order for $225,000. The estimate is based on a letter (not direct evidence) from a firm of solicitors calculating costs of a five day hearing ($153,120 including Counsel’s fees), together with the estimated costs of between $50,000 and $70,000 “for the forensic accountant”;
b)considering the issue to be determined at a discrete hearing as set out above and the fact that some preliminary evidence from a forensic accountant Mr HH is already available, for a one day hearing (which is the Court’s estimate) an allowance of $20,000 is more appropriate;
c)The history reveals, in my view, that the Applicant has an arguable claim. No application for summary dismissal has been filed or suggested by the Respondent since the judgment of Judge Jarrett of November 2018;
d)the Respondent has significant assets available to him and in making that statement, based on his own Financial Statement, I take into account that at his age he would (if he chose to do so), be able to access his self-managed superannuation fund benefits other than by way of a pension;
e)the arguments to be advanced at the discrete hearing are likely to be more legalistic than factual. The Respondent in his defence does not deny the creation of the entities identified by the Applicant. Rather he asserts that the respective entities’ acquisition of any property management businesses does not fall within the terms of clause 8 of the BFA, so as to enliven the Court’s jurisdiction. Whilst I accept that a person engaged in civil litigation in Australia (including in the family law jurisdiction) does not have a right to legal representation, considering the facts in this case; the history of the litigation and the importance of the discrete issue identified, my discretion to be exercised in this case under s 79 (as a source of power) should be exercised in the Applicant’s favour unless on balance it is shown to create an injustice upon the Respondent that outweighs the injustice to the Applicant. In using these terms, I have in mind the obligation of any order under s 79 of the Act to be just and equitable to both parties; and
f)it is not appropriate, in my view, for the Applicant’s claim to be assessed with some retrospective ambit. The Applicant has already been required to concede that her claim for spouse maintenance (which formed part of her earlier self-prepared Application) could not proceed as it was clearly covered by the BFA. However, on balance an impost of $20,000 upon the Respondent is, I find, easily within his financial capacity. I accept that if the Applicant is unsuccessful, such that the Applicant is unable to seek relief under s 90SM, that the Respondent may have little prospect of receiving the sum of $20,000 (or any part of his costs) from the Applicant. I take that detriment to him into account.
Nonetheless, I find it is just and equitable that the Respondent pay to the Applicant the sum of $20,000 within thirty days by way of interim property adjustment.
Injunctive relief
The principles that apply when seeking such relief are, again, well settled.
The principles to be applied when the Court is asked to exercise its discretion and restrain otherwise lawful conduct by a party in circumstances like the present, are shaped by the need to preserve the status quo pending resolution of the controversy (Tsiang & Wu and Ors [2019] FamCAFC 128 relying on Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [9]-[12]).
Many of the cases, as did Tsiang & Wu and Ors (supra), seek injunctions to restrain a party from diminishing the assets (by either sale or further encumbering), pending a final determination.
In these proceedings, the Applicant seeks to restrain the Respondent in the operation of his business. Whilst the Applicant has provided no undertaking as to damages, the principles are settled that:
a)the Applicant must demonstrate there is a serious issue to be tried, which the Full Court in Tsiang & Wu and Ors (supra) summarised as “in essence it requires the demonstration of an arguable case or as was said in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65], the applicant must ‘show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo’”;
b)next the Applicant must demonstrate that the balance of convenience favours making the order (Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at [328]-[329]);
c)further, as Gleeson CJ observed in Patterson (supra) at [321]-[325]:
“…as a general rule a plaintiff will need to establish, first, a prima facie cause of action against the defendant, and secondly, a danger that, by reason of the defendant's absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied.”
d)relying on Mullen and De Bry (2006) FLC 93-293 at [49], the Full Court in Tsiang & Wu and Ors (supra) said at [25] that:
“It is unnecessary to demonstrate a positive intention but merely the possibility of the event occurring.”
e)however as stated by McMurdo JA (with whom Fraser and Gotterson JJA agreed), in Palmer v Parbery [2019] QCA 27 at [119]:
“The determination of whether there exists a sufficiently serious risk of the dissipation of assets involves the evaluation of future possibilities, rather than the ascertainment of historical facts. The risk of dissipation might justify an order although the probability of the risk eventuating is less than 50 per cent. But, as the risk of dissipation must be a real and not merely a theoretical one, it must have an evidentiary basis. Where a fact is alleged by the plaintiff in support of its case about the risk, but there is contrary evidence from the defendant, must the fact be proved to the court’s satisfaction as if the application for the freezing order was the trial of the case? In my view, a plaintiff need not do so. A freezing order is interlocutory in nature; it does not involve a final determination of the parties’ positions. Usually it is made in circumstances of urgency in which the court is unable to conduct an extensive and conclusive factual inquiry in a way which is fair to both parties. Where the factual basis for the plaintiff’s case about the risk of dissipation is disputed, the risk will commonly have to be evaluated with the recognition that the factual basis for it is in doubt. Nevertheless, the possibility of the plaintiff’s evidence being correct, considered with other facts and circumstances, might mean that there is a sufficiently serious risk of the frustration of the satisfaction of a judgment as to justify the making of a freezing order…”
For the reasons which follow, I will dismiss the Applicant’s application for injunctive relief:
a)It is usual, when seeking the exercise of this discretionary power to restrain otherwise lawful conduct of the other party, that an undertaking as to damages be offered. None has been offered by the Applicant, and based on her perilous financial state, even if offered there could be little confidence she has the capacity to meet some award of damages. Of course, the Applicant says that she will not only be successful on the discrete issue, but thereafter is likely (on her estimate) to be entitled to a settlement in the order of $500,000. This was the amount contended for by Mr Galloway of Counsel for Ms Glover, although no basis of quantification was advanced;
b)The difficulty with having any accurate basis for quantification, is that until the Court is able to determine the discrete issue, the “pool” available cannot be determined. It seems clear, for example, that the Applicant’s earlier assertion (in her Financial Statement of January 2017) that her 80% interest in Q Pty Ltd was worth $949,615 must now be put into question where the entity is now in liquidation;
c)The injunctions sought are extremely wide, and the submissions of Mr Bunning are that:
i)the Court has no jurisdiction until it determines that there is property not covered by the BFA;
ii)the evidence of Mr Webster contained in his Affidavit filed 18 February 2020 should be accepted showing an overall shortfall of $4 million to related lenders (paragraph 14) and that “if the Court makes the order Ms Glover is seeking to prevent the sale of the remaining two businesses, then for the reasons given above this will only make the loss much greater than it already is for those entities that have loaned funds to the various companies for the purchase of the property management businesses”;
d)I am satisfied that the Court has jurisdiction to make an injunction, however on the balance of convenience it should not do so because, at least:
(i)the Respondent should not be restrained from usual business operations, which he has carried out since separation – no earlier injunctions having been ordered;
(ii)any restraint could prevent the Respondent from cutting “his losses” – he being the one initially likely to suffer the loss through the equity unrecovered by the related entities; and
(iii)based on the substantial personal financial position of the Respondent Mr Webster, there is no real possibility that if the Applicant was ultimately successful in the achieving an award under s 90SM, that her judgment would be frustrated.
In all these circumstances, at this time, the application for injunctive relief must be dismissed.
Further conduct of these proceedings
I propose to list this matter for a case management hearing before me at 9.30am on 9 July 2020. At that time I will hear submissions as to:
a)any further discovery needed, not already provided, that is necessary for the determination of the discrete issue;
b)whether the parties agree that the hearing can be contained within one day; and
c)any other necessary directions for the hearing.
The parties are encouraged to discuss these issues before the case management hearing to try and reach some consent directions - in whole or part.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 29 May 2020.
Associate:
Date: 29 May 2020
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