Gull and Rickett - [2009] FamCA 675

FAMILY COURT OF AUSTRALIA

GULL & RICKETT

[2009] FamCA 675

FAMILY LAW – PROPERTY – Interim Proceedings – Husband sought discharge of orders for interim spousal maintenance – Consideration of “just cause” and change in circumstance – Spousal maintenance orders varied – Complex valuation of property – Deferral of valuation until crystallisation of certain interests – Impartiality of expert valuer questioned – No concern of bias

Family Law Act 1975 (Cth) ss 72, 75, 83

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
In the Marriage of Burridge (1980) FLC 90-902
In the Marriage of Harris (1993) FLC 92-317
In the Marriage Lutzke (1979) FLC 90-714
In the Marriage of Redman (1987) 11 FamLR 411
Johnson v Johnson (2000) 201 CLR 488
Kernot v Matson [2008] FamCA 756
R & R [2008] FamCA 1180
Vakil & Vakil (1997) 21 FamLR 508

APPLICANT:

Mr Gull

RESPONDENT:

Ms Rickett

FILE NUMBER:

BRC

7914

2007

DATE DELIVERED:

30 July 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

28 April 2009

REPRESENTATION

APPLICANT:

The Husband appeared in person

COUNSEL FOR THE RESPONDENT:

Mr C Carrigan

SOLICITOR FOR THE RESPONDENT:

Herbert Geer, Solicitor

Orders

Future Date

The proceedings be adjourned for mention before Murphy J at a time and on a date to be fixed after the earlier of:
(a)the “crystallisation date” as provided for in the Shareholders Agreement being Exhibit W1 in these proceedings; or
(b)28 February 2010
upon an application being filed by either party after the earlier of such dates with a short accompanying affidavit deposing to the occurrence of the relevant event.

Disclosure

The husband provide written notice to the wife in the event of the occurrence of any of the following events within seven days of such event occurring, with such notice to include copies of any and all documents in relation to the event:
(a)Any special resolutions passed under, pursuant to or in relation to the subject matter of the shareholder’s Agreement by the board of any of the following entities F Group Pty Ltd, F Capital Ltd, F Investments Pty Ltd, SL Ltd, R Capital Pty Ltd or A Capital Pty Ltd (hereafter collectively “The [F] Group”), W Holdings Pty Ltd as trustee of the W Investments Trust (or such other person or entity as trustee of the W Investments Trust from time to time) or OG Nominees Pty Ltd as trustee for the M Holdings Trust (or such other person or entity as trustee of the M Holdings Trust from time to time).
(b)The crystallisation date occurring as prescribed in Schedule 1 of the Shareholders’ Agreement.
(c)Any income being distributed from the F Group to W Holdings Pty Ltd as trustee of the W Investments Trust (or such other person or entity as trustee of the W Investments Trust from time to time) or OG Nominees Pty Ltd as trustee for the M Holdings Trust (or such other person or entity as trustee of the M Holdings Trust from…

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 Gull and Rickett

Details

AGLC: Gull and Rickett [2009] FamCA 675
Case: [2009] FamCA 675
Decision Date: 30 July 2009

CaseChat Overview and Summary

This matter came before Murphy J concerning a dispute between Gull and Rickett. The proceedings involved complex financial arrangements, including a Shareholders' Agreement and various trusts and companies, with significant implications for spousal maintenance and property division.

The court was required to determine several key issues. These included the timing of future proceedings, the extent of disclosure required from the husband regarding corporate and trust activities, the removal of a single expert and the setting aside of a previous order concerning valuation, the suspension of certain prior orders, a variation of spousal maintenance, the transfer of a motor vehicle, and the dismissal of specific applications relating to property.

Murphy J's reasoning involved carefully considering the terms of the Shareholders' Agreement and the existing orders of the court. The judge adjourned the proceedings for mention until a date to be fixed after the "crystallisation date" or 28 February 2010, contingent on an application being filed by either party. The court also imposed extensive disclosure obligations on the husband, requiring him to provide written notice and documentation for a wide range of events related to the F Group, trusts, and his personal financial status. Applications to remove a single expert and set aside a previous valuation order were dismissed. Certain prior orders were suspended until seven days after the crystallisation date or 31 January 2010. Spousal maintenance was varied from $510 to $200 per week. The husband was ordered to transfer a Subaru motor vehicle to the wife, and specific applications concerning the "D Property" were dismissed. The costs of the proceedings were reserved to the trial judge.

Orders

Orders of the court

Future Date

The proceedings be adjourned for mention before Murphy J at a time and on a date to be fixed after the earlier of:

(a) the “crystallisation date” as provided for in the Shareholders Agreement being Exhibit W1 in these proceedings; or

(b) 28 February 2010

upon an application being filed by either party after the earlier of such dates with a short accompanying affidavit deposing to the occurrence of the relevant event.

Disclosure

The husband provide written notice to the wife in the event of the occurrence of any of the following events within seven days of such event occurring, with such notice to include copies of any and all documents in relation to the event:

(a) Any special resolutions passed under, pursuant to or in relation to the subject matter of the shareholder’s Agreement by the board of any of the following entities F Group Pty Ltd, F Capital Ltd, F Investments Pty Ltd, SL Ltd, R Capital Pty Ltd or A Capital Pty Ltd (hereafter collectively “The [F] Group”), W Holdings Pty Ltd as trustee of the W Investments Trust (or such other person or entity as trustee of the W Investments Trust from time to time) or OG Nominees Pty Ltd as trustee for the M Holdings Trust (or such other person or entity as trustee of the M Holdings Trust from time to time).

(b) The crystallisation date occurring as prescribed in Schedule 1 of the Shareholders’ Agreement.

(c) Any income being distributed from the F Group to W Holdings Pty Ltd as trustee of the W Investments Trust (or such other person or entity as trustee of the W Investments Trust from time to time) or OG Nominees Pty Ltd as trustee for the M Holdings Trust (or such other person or entity as trustee of the M Holdings Trust from time to time).

(d) Any trust income being distributed from the W Trust or M Holdings Trust.

(e) Any consent given or sought for any transaction by SL Ltd pursuant to the Shareholders’ Agreement.

(f) Any resolution of W Holdings Pty Ltd as trustee of the W Investment Trust (or any other trustee of the W Investment Trust from time to time) in relation to the or anticipated sale of any shares in the F Group.

(g) Any resolution of OG Nominees Pty Ltd as trustee of the M Holdings Trust (or any other trustee of the M Holdings Trust from time to time) in relation to the sale of any shares in the F Group.

(h) Any resolution of W Holdings Pty Ltd as trustee of the W Investment Trust (or any other trustee of the W Investment Trust from time to time) or any notice given or received by the trustee of the W Investment Trust of intentions to sell, or offer as security any interest (contingent or otherwise) in the F Group.

(i) Any resolution of OG Nominees Pty Ltd as trustee of the M Holdings Trust (or any other trustee of the M Holdings Trust from time to time) or any notice given or received by the trustee of the M Holdings Trust of intentions to sell, or offer as security any interest (contingent or otherwise) in the F Group.

(j) Any documents indicating the dividend policy of the F Group as determined by the board of the company (whether before the crystallisation date or after).

(k) The “retirement” Y Gull or MR AT (as defined in the Shareholders’ Agreement), being persons listed as key persons for W Holdings Pty Ltd in Schedule 9 of the Shareholders’ Agreement.

(l) The retirement of the husband (as defined in the Shareholders’ Agreement) provided for in Schedule 13 of the Shareholders’ Agreement).

(m) All documents in relation to any decision of the F Group board pursuant to clause 15 of the Shareholders’ Agreement.

(n) All documents in relation to any directors appointed by W Holdings Pty Ltd as a director to the board of the F Group as provided for in the Shareholders’ Agreement.

(o) All documents in relation to the calculation of revenue credits determined by the board and shareholders of the F Group pursuant to the Shareholders’ Agreement.

(p) Any change to the employment status of the husband with any entity or person, including but not limited to within the F Group including a return to work or termination of employment.

(q) Any resolution of the board of F Group requiring W Holdings Pty Ltd to sell its shares back to the F Group.

(r) Receipt of any income to the husband, M Capital Pty Ltd, M Holdings Trust or S Nominees Pty Ltd, or any other entity controlled by the husband, with the husband to be restrained from dealing with said income until the expiry of the seven day notice period.

(s) Any demands for payment by any creditor of the husband personally, M Capital Pty Ltd, M Holdings Trust or S Nominees Pty Ltd or any other entity controlled by the husband, with the husband to be restrained from making any payment (but for in the case of a margin loan call) until the expiry of the seven day notice period.

Valuation

The applications by the husband to:

(a) remove Mr B, as a single expert; and

(b) “set aside in full” the Order of 14 July, 2008

each be dismissed.

The operation of Orders 1 to 4 and 7 to 8 inclusive of the orders made on 14 July 2008 be suspended until the earlier of:

(a) Seven days after the “crystallisation date” as provided for in the Shareholders’ Agreement being Exhibit W1 in these proceedings; or

(b) 31 January, 2010.

Variation of Spousal Maintenance

UNTIL FURTHER OR OTHER ORDER and as and from the date of this Order, Order 1 of the Orders made on 18 January, 2008 be varied by substituting the figure “$200” for the figure “$510” where that figure appears.

Subaru Motor Vehicle

Within 14 days of the date of this Order the husband do all such things and sign all such documents as might be necessary to cause to be transferred to the wife the Subaru Liberty motor vehicle, free of encumbrance;

Upon the transfer of the said Subaru motor vehicle in accordance with these Orders, Order 2.3 of the Orders made on 18 February, 2008 be discharged.

The D Property

Paragraphs 4 to 6 inclusive of the husband’s Application in a Case filed on 12 February, 2009 be dismissed.

Costs

The costs of both parties of and incidental to these proceedings be reserved to the trial judge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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