Grimmond & Hartin - [2021] FedCFamC1F 107

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Grimmond & Hartin [2021] FedCFamC1F 107

File number(s): DNC 234 of 2021

Judgment of: BERMAN J

Date of judgment: 7 October 2021

Catchwords:
FAMILY LAW – INJUNCTIONS – Preservation of property – Where the applicant seeks various injunctions against the respondents - Where the applicant and first respondent are directors and shareholders of a successful company – Where the second respondent no longer works for the company – Where the second respondent set up a business in the same industry – Where the applicant is concerned the first and second respondents are acting in concert with conduct which would reduce the value of the company – Consideration of whether a common law restraint might apply to the second respondent – Where it is reasonable to make orders to preserve the integrity of the business – Orders.

FAMILY LAW – PROPERTY – Sole use and occupation – Where the applicant seeks sole use and occupation of the former matrimonial home – Where the first respondent resides on the property but in self-contained accommodation – Where there is insufficient evidence for the making of an order.

FAMILY LAW – PRACTICE AND PROCEDURE - Discovery – Where the applicant seeks that the respondents provide discovery of certain documents in relation to the second respondent’s business – Where the respondents are parties to the proceedings – Where full and frank disclosure is required – Orders.

Legislation: Family Law Act 1975 (Cth) ss 114(2A), 114(3)

Cases cited:
Faccenda Chicken Ltd v Fowler [1985] 1 All ER 724

Farr & Farr (1976) FLC 90-133

Forkserve Pty Ltd v Pacchiarotta (2000) 50 IPR 74

G & T (2004) FLC 93-176

Ormonoid Roofing & Asphalts Ltd v Bitumenoids Ltd (1930) 31 SR (NSW) 347

Printers and Finishers Ltd v Holloway [1965] 1 WLR 1

Norton & Lock (2013) FLC 39-567

Sieling & Sieling (1979) FLC 90-627

Heydon, John Dyson, The Restraint of Trade Doctrine (Butterworths, 2^nd edition, 1999)

Division: Division 1 First Instance

Number of paragraphs: 107

Date of hearing: 20 and 28 July 2021 and 25 August 2021

Place: Heard in Darwin and Adelaide, delivered in Adelaide

Counsel for the Applicant: Ms Giacomo

Solicitor for the Applicant: Ward Keller Lawyers

Counsel for the First Respondent: Ms Morgan

Solicitor for the First Respondent: Cozens Johansen Lawyers

Counsel for the Second and Third Respondents: Mr Casey

Solicitor for the Second and Third Respondents: Withnalls Lawyers
ORDERS

DNC 234 OF 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GRIMMOND

Applicant

AND:
MR HARTIN

First Respondent

MR X HARTIN

Second Respondent

B PTY LTD ACN …

Third Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

7 OCTOBER 2021

THE COURT ORDERS:
1.That the first respondent is restrained from selling, encumbering or disposing of any property of C Pty Ltd (“CPL”) without the written consent of the applicant or order of the Court save and except as may be necessary in the ordinary course of business and…

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.

Continue reading Grimmond & Hartin

Details

AGLC: Grimmond & Hartin [2021] FedCFamC1F 107
Case: [2021] FedCFamC1F 107
Decision Date

CaseChat Overview and Summary

Ms Grimmond and Mr Hartin, who were in a de facto relationship until June 2020, have two adult children. The parties are equal shareholders and directors of a company operating in Darwin, C Pty Ltd (CPL). The applicant commenced proceedings for property settlement and has joined Mr X Hartin and B Pty Ltd in the proceedings. The applicant seeks various interim orders, including that the first and second respondents be restrained from acting in a manner that would reduce the value of CPL, and that the second and third respondents be restrained from accessing financial documents and information relating to the financial position of CPL. The applicant also seeks orders for discovery of documents from the second and third respondents.

The court found that there was a serious issue to be tried in relation to the value of CPL and that the balance of convenience supported making the orders sought by the applicant. The court made orders restraining the first respondent from selling, encumbering or disposing of any property of CPL without the consent of the applicant or order of the court, and from using or disclosing any information relating to CPL without consent or order of the court. The court also made orders restraining the applicant and the first respondent from setting up any company, business or trading in competition with CPL in the Northern Territory, and from accessing any credit loan account that they may each have with CPL other than with the consent of the parties or as may be ordered by the court. The court made orders restraining the second and third respondents from providing any financial documents or other information relating to the financial position of CPL to any other person or entity without the express consent of the applicant or order of the court, and from using, copying or extracting any of the information described in or derived from the CPL client list or CPL database or producing, marketing or selling any item which could not have been used, produced or created without the use of the company information. The court declined to make orders restraining the second and third respondents from setting up any company, business or trading in competition with CPL in the Northern Territory, and from approaching existing clients of CPL. The court also declined to make an order for sole use and occupation of the former matrimonial home in favour of the applicant. The court made orders for discovery of documents from the second and third respondents.

Orders