Hinde and Hinde and Anor

[2007] FamCA 517

FAMILY COURT OF AUSTRALIA

HINDE & HINDE AND ANOR [2007] FamCA 517

FAMILY LAW - PROPERTY - Transaction to defeat claims

APPLICANT: MRS HINDE

FIRST RESPONDENT: MR HINDE

SECOND RESPONDENT: MR FRAY

FILE NUMBER: BRF 811 of 2006

DATE DELIVERED: 20 February 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 20 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McMillan of Counsel appearing for the Applicant Wife

FIRST RESPONDENT: First Respondent appearing on his own behalf

COUNSEL FOR SECOND RESPONDENT: Mr T North SC appearing for the Second Respondent

Orders

1. The First Respondent to file a further Form 13 Financial Statement within twenty-one (21) days.

2. The Second Respondent to file and serve a Form 13 Financial Statement within twenty-one (21) days.

3. Within thirty-five (35) days the Second Respondent is to provide full particulars of:

   (a)the date of receipt of all moneys from the Husband covering the last four years;

   (b)particulars of how and when such moneys have been expended with documentary       evidence supporting same where such documents are available;

   (c)evidence of any payments made to the Husband or on the Husband’s behalf by the      Second Respondent or by any company or entity with which the Second Respondent is associated for the past four years with particulars of the nature of such payment.

4. The Second Respondent, as a shareholder or director, is not to permit any dealings of any kind whatsoever which would have the affect of encumbering or dealing with the following properties registered in the name of or controlled by W Pty Ltd as trustee for the W Property Trust or the companies, N Pty Ltd, NP Pty Ltd and NE Pty Ltd save with the written consent of the applicant or by further Order of this Court:

   ·G property;

   ·C property;

   ·Z property; and

   ·L property.

5. The Second Respondent is restrained from engaging in any step which impacts on his position as a shareholder and/or director with the companies referred to in paragraph 5 of his affidavit, filed by leave on today's date.

6. Paragraphs 3, 4 and 5 of the Orders of Judicial Registrar Smith dated 9 February 2007 so far as they relate to the Second Respondent, Mr F are discharged.

7. The solicitors for the Second Respondent are authorised to serve a copy of this Order on the National Australia Bank.

8. Costs reserved.

9. The further hearing of this matter be adjourned to 10.00 am on 27 March 2007 before a Judge.

FAMILY COURT OF AUSTRALIA AT BRISBANE  

FILE NUMBER:   BRF 811 of 2002

MRS HINDE

Applicant

And

MR HINDE

First Respondent

And

MR FRAY

Second Respondent

REASONS FOR JUDGMENT

1. In his financial statement of April 2006, the husband discloses an income of $300 a week as a maintenance sole trader.  He says he has an interest in a business, P Company, but he values it at nil.  At the same time he indicated he had a home mortgage of $328,000; and a second mortgage of $160,000 apart from the former matrimonial home has an interest in a property in Tasmania.  These properties been mortgaged to Macquarie Bank and Commonwealth Bank.

2. Having borrowed the funds ostensibly as a business loan the husband then proceeded to pay $400,000 to the second respondent.  The Court could draw an inference vis a vis the first respondent, that he was endeavouring to divest himself of assets to defeat the wife's claim for property settlement.

3. The recipient of the payment, the second respondent, has now been joined formally in these proceedings.  The second respondent operates what I perceive to be a large business.  He operates quite a number of companies.  He was somewhat equivocal about his financial position.

4. I called him to give evidence to establish his asset position.  I am satisfied on a closer reading of his affidavit that he is a director and shareholder of the companies that he nominates.

5. He says the moneys have been dissipated.  He does not offer to put up any particular asset as a measure of protecting the wife.  Counsel for the second respondent has tendered an undertaking.  I do not propose to accept the undertaking in those terms but the undertaking will remain on the file. 

6. The wife is entitled, for the purposes of this application, to have her case taken at its highest.  It is certainly an arguable case there has been collusion between the first respondent and second respondent.  It is not inherently implausible.

7. If there has been collusion then one could conclude that neither the first respondent nor the second respondent should be trusted if they are working in such a way to defeat the wife's claim.  I do not say that that ultimately is the position that will be found by the Court but it is arguable.  In those circumstances I propose to impose the direct force of Court orders restraining the second respondent. 

8. There are built in safeguards, that if he wishes to dispose of any of the properties which are held as security by the banks, then he can approach the wife and/or approach the Court if she should refuse and her refusal is deemed unreasonable.  The wife, to my mind, is entitled to be protected from the possibility that there may be further dissipation of assets.  The view that I take is that Court orders are much more stringent and much more effective than an undertaking given in the terms proffered. 

9. For those reasons I make the orders that I have foreshadowed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HINDE & HINDE