Hodak and Hodak (No. 2)

[2020] FamCA 988

FAMILY COURT OF AUSTRALIA

HODAK & HODAK (NO. 2) [2020] FamCA 988

FAMILY LAW – ENFORCEMENT – property – where final orders were made in January 2020 – where the husband seeks the enforcement of orders as well as damages – where the wife seeks the husband’s application be dismissed – where there is little merit in the husband’s application – where the wife was not found to have breached any of the orders as alleged by the husband – where a number of the orders sought by the husband are beyond the power of this Court – order that the husband’s application be dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Hodak

RESPONDENT: Ms Hodak

FILE NUMBER: MLC 14738 of 2018

DATE DELIVERED: 24 November 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 12 October 2020

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms McCreadie

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

Orders

BY CONSENT

1. The husband have leave to withdraw his Response to an Application in a Case filed 1 September 2020.

2. That the wife sign all such documents as may be required to effect her removal as a signatory to the bank accounts in the name of the Husband’s Entities (as defined at recital M to the orders dated 15 January 2020) within 7 days of production of such documents by the husband. 

BY THE COURT 

1. That the husband’s Response to an Application in a Case filed 9 September 2020 be otherwise dismissed.

2. That any party seeking costs must file written submissions within 14 days of these Orders being pronounced.

3. That in the event an application for costs is made pursuant to order 4 herein, any written submissions in response be filed within 28 days from the date of these Orders.

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 Hodak & Hodak 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 MELBOURNE

FILE NUMBER: MLC 14738  of 2018

Mr Hodak

Applicant

And

Ms Hodak

Respondent

REASONS FOR JUDGMENT

Introduction

1. Final property orders were made by consent on 15 January 2020 (“Final Orders”). The respondent wife, Ms Hodak, filed an Application in a Case in June 2020 seeking the enforcement of those orders as well as the enforcement of the parties’ Financial Agreement and Binding Child Support Agreement.

2. In his Response to an Application in a Case filed 1 September 2020 the applicant husband, Mr Hodak, who is self-represented, sought a raft of orders ostensibly to enforce the Final Orders and also seeking damages.  The husband filed a further Response to an Application in a Case on 9 September 2020, seeking orders in substantially similar terms as in his previous Response, including that:-

   ·Wife to remove herself from the companies accounts;

   ·Wife to refund $1,000 demanded as ransom;

   ·Wife to refund $60,000 taken from PAYG instalments;

   ·Wife to refund $395 falsely claimed as bank interest while in fact wealth package;

   ·Wife to pay husband $58,000 in companies damage and $2,400 in property damages;

   ·Wife to be removed as a Director in J Pty Ltd.

3. On 1 September 2020 Hartnett J made orders with respect to the wife’s application to enforce the Final Orders and agreements and otherwise dismissed the wife’s Application in a Case.  The husband’s response was adjourned for hearing before me on 12 October 2020 in the Judicial Duty List.

4. In her Reply to Response to an Application in a Case, the wife seeks that the husband’s application be dismissed and that he pay her costs on an indemnity basis.

5. These are my Reasons for Judgment with respect to those applications.

Background

1. The applicant husband, Mr Hodak, is aged 39. He is employed as a professional.

2. The respondent wife, Ms Hodak, is aged 37. The wife is a homemaker and a company director.

3. The husband and the wife were married in 2007, with final separation occurring 11 years later, on 10 February 2018. The parties have one child of the relationship, X, aged nearly four years.

4. The wife commenced final property proceedings in December 2018.  The matter first came before the Court on 12 March 2019 and that day Registrar Lethbridge made orders by consent as follows:-

   (1)The parties do all things to forthwith lodge the Wife's 2018 taxation return (expected to create a liability of circa $126,000).

   (2)Upon lodgement of the Wife's return, the parties do all things and sign all documents to withdraw and apply towards the Wife's tax liability and the Husband's tax liability for 2018 (in the sum of $672,166.70):

   2.1one half of the combined liability from the Location K Offset account; and

   2.2the balance required to the meet the combined tax liabilities from the Suburb C Offset account.

   …

5. The matter returned to Court on 15 January 2020 and that day Registrar Mestrovic made final property orders by consent. The orders which are relevant to this dispute, provide as follows:-

   DIVISION

   (1)Subject to the Husband’s compliance with these Orders, as and from the Date (or on such date as is otherwise specified), the Husband retain, to the exclusion of the Wife, all of his right, title and interest in:

   a)The Location K Property, subject to the Location K Mortgage (or the Balance if paragraphs 10 to 12 apply);

   b)The Husband’s Entities (being the Husband’s Companies and the Husband’s Trusts);

   c)The bank accounts held in his sole name;

   d)The bank accounts held in the joint names of the parties (including the CBA Accounts #…00, #…99 and #…80);

   e)The Motor Vehicle 1 (Registration No.: …);

   f)His superannuation entitlements held with Super Fund 1; and

   g)His watches, personal items and effects, furniture and chattels inclusive of the contents of the Location K Property and his current residence.

   (2)Subject to the Wife’s compliance with these Orders, as and from the Date (or on such date as is otherwise specified), the Wife retain, to the exclusion of the Husband, all of her right, title and interest in:

   a)The Suburb C Property (unencumbered, as and from the Further Date or such earlier date as is applicable);

   b)Her interest in the Country L Property;

   c)The balance of the CBA Account #…12 and the bank accounts held in her sole name, including of the part property settlement received by her pursuant to paragraph 3 of the Orders made 12 March 2019;

   d)The Motor Vehicle 2 (Registration No.: …);

   e)The Motor Vehicle 3 (Registration: …);

   f)Her superannuation entitlements held with Super Fund 2; and

   g)Her jewellery, personal items and effects and the furniture and chattels inclusive of the contents of the Suburb C Property.

   (3)To give effect to paragraph 1 of these Orders, the Wife do all acts and things and sign all documents, at the expense of the Husband, on or before the Date (or on such date as is otherwise specified) required to:

   a)Transfer all her right, title and interest in the Location K Property to the Husband ("the Transfer");

   b)Contemporaneously with the Transfer, to refinance the Location K Mortgage into the Husband's sole name ("the Refinance”), with the Husband to do all acts and things and execute all documents required to complete the Refinance; and

   c)Following the Transfer, to lodge a caveat secured against the Location K Property ("Location K Caveat"); and

   d)Pending the implementation of paragraph 6, execute all documents as requested by the Husband in relation to the Husband’s Companies, the Husband’s Trusts and the Husband’s Entities within forty-eight (48) hours of any request.

   (4)To give effect to paragraph 2 of these Orders, the Husband in his personal capacity, and in his capacity as Director of the Husband’s Companies, and Appointor of the Husband’s Trusts, do all acts and things and sign all documents, at the expense of the Wife, on or before the Date (or on such date as is otherwise specified) required to:

   a)Transfer the Motor Vehicle 2 (Registration: …) into the Wife's sole name ("Transfer of Motor Vehicle 2");

   b)Transfer the Motor Vehicle 3 (Registration: …) into the Wife’s sole name, or such other person as she may nominate (with the Wife to meet the cost of any additional expenses arising from the transfer of the Motor Vehicle 3 into the name of a third party) ("Transfer of Motor Vehicle 3 ");

   c)Transfer all his right, title and interest in the Suburb C Property to the Wife (“the Suburb C Transfer”); and

   d)Transfer all his right, title and interest in the Country L Property to the Wife.

   (5)The Husband be solely responsible for, and indemnify the Wife with respect to, the Suburb C Mortgage and in respect thereof:

   a)The Husband pay or cause to be paid the interest and / or principal repayments for the Suburb C Mortgage as when same fall due until the Suburb C Mortgage Balance is paid in full on or before the Further Date or such earlier date as is applicable;

   b)If the Wife desires to sell the Suburb C Property before the date the Suburb C Mortgage Balance is paid in full or the Further Date, the Wife forthwith inform the Husband and permit so much of the Suburb C Mortgage Balance as is outstanding as at the date of settlement of the Suburb C Property to be secured on title to her new real property by way of registered mortgage and the Husband's obligations with respect to the Suburb C Mortgage continue accordingly;

   c)If the Wife desires to sell the Suburb C Property before the date the Suburb C Mortgage Balance is paid in full or the Further Date, and does not purchase a new real property, the Husband continue to pay or cause to be paid to the Wife so much of the Suburb C Mortgage Balance as is outstanding as at the date of settlement of the sale of the Suburb C Property, in equal monthly instalments until the principal sum as at the date of settlement of the sale is paid in full and by no later than the Further Date; and

   d)If the Wife elects to sell the Suburb C Property before the time at which the Husband is to repay the Suburb C Mortgage in full pursuant to paragraph 5(b) or 5(c), the Husband is to withdraw the Suburb C Property Caveat at settlement of the Suburb C Property.

   (6)Subject to provisions in paragraph 5:

   a)The Husband repay or cause to be repaid the Suburb C Mortgage Balance in full on or before the Further Date, or such earlier date as he elects, or on such date as is otherwise agreed between the parties in writing; and

   b)Contemporaneously with paragraph 6(a):

   i)       The parties do all acts and things and sign all documents to discharge the Suburb C Mortgage (“the Suburb C Discharge”) at the Husband's expense and the Husband provide all documents reasonably requested by the Wife to evidence the said discharge, such that the Wife thereafter retain the Suburb C Property unencumbered;

   ii)      The Husband withdraw the Suburb C Caveat;

   iii)     The Wife withdraw the Location K Caveat;

   iv)     The Wife resign as a Director and / or Secretary of the Husband's Companies;

   v)       The Wife transfer her shareholdings in the Husband's Companies to the Husband;

   vi)     The Wife consent to her exclusion as a beneficiary of the Husband's Trusts;

   vii)    The Wife consent to her removal as an appointor of the Husband's Trusts (as applicable);

   viii)     The Wife assign to the Husband, all her right, title and interest in the Husband's Entities, including any loan accounts in the Wife's favour and any claim and / or entitlement that the Wife has against the Husband's Entities including any claim as a beneficiary and any claim she has jointly with the Husband, with the Wife to be restrained from pursing any claim held by her against the Husband’s Entities and from assigning any right or claim to any other person or entity.

   c)The parties are restrained as and from the date of these Orders until after the Further Date and the Suburb C Discharge from encumbering and / or further encumbering the Suburb C Property and / or increasing the indebtedness and / or balance of the Suburb C Mortgage to an amount greater than the Suburb C Mortgage Balance ($ 2,091,995 DR).

   …

   (20)Neither party will publicly disparage or encourage or participate in any third-party disparagement of the other with regard to any matter the subject of, or associated with, the parties, the parties marriage and separation, the Husband’s Companies, the Husband’s Trusts, the Husband’s Entities, these Orders and the Section 90D Financial Agreement executed by the parties.

   (21)Each party acknowledges that damages may not be a sufficient remedy for any breach of paragraph 20, particularly in relation to the Husband’s Entities, and therefore each party consents to the other party seeking injunctive relief in respect of any alleged or actual breach by that party.

   …

   AND THE COURT NOTES THAT:

   A. The parties have entered into a Financial Agreement pursuant to the provisions of Section 90D of the Act in relation to spousal maintenance which will become operative on the pronouncement of these Orders.

   B.The parties have entered into a Binding Child Support Agreement in relation to their respective financial obligations to their daughter, … which will become operative on the pronouncement of these Orders.

   C.Pursuant to section 81 of the Act the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

6. On 15 June 2020 the wife filed an Application in a Case. In her application, the wife sought the enforcement of the Final Orders, as well as the enforcement of the parties’ Financial Agreement dated 13 January 2020 and the Binding Child Support Agreement dated 13 January 2020.

7. The husband filed a Response to an Application in a Case on 1 September 2020. He sought orders relating to separate issues that the wife sought be ventilated in her application.

8. On 1 September 2020 the matter came before Hartnett J in the Judicial Duty List. That day, her Honour made the following orders:-

   (1)Within 48 hours hereof the husband pay or cause to be paid to the wife:-

   (a)     by consent, the sum of $24,290 in repayment of mortgage arrears due to the Commonwealth Bank of Australia in respect of the mortgage encumbering the real property known as and situate at D Street, Suburb C in the State of Victoria;

   (b)     by consent, the sum of $30,000 pursuant to paragraph 8(a) of the Financial Agreement dated 13 January 2020 on account of the spousal maintenance payments which were due and payable on 1 June 2020, 1 July 2020 and 1 August 2020;

   (c)     by consent, the sum of $1,952 pursuant to paragraph 3(c) of the binding child support agreement dated 13 January 2020;

   (d)     by consent, the sum of $2,502.50 pursuant to paragraph 8(b)(ii) of the Financial Agreement dated 13 January 2020 on account of the body corporate fees; and

   (e)     by order of the Court, the sum of $2,000 pursuant to order 5.7 of the orders made by Registrar Lethbridge on 12 March 2019 and order 22 of the orders made by Registrar Mestrovic on 15 January 2020.

   (2)Otherwise, the wife’s amended application in a case filed 27 August 2020 is dismissed, save as to the question of costs.

   (3)The husband’s extant application as contained in his response to an application in a case re-filed 1 September 2020 is adjourned for hearing in the judicial duty list on 12 October 2020 at 10.00am before Justice Johns.

   (4)The husband make, file and serve an affidavit in support of his response to an application in a case re-filed 1 September 2020 within 14 days hereof.

   …

9. The husband filed a further Response to an Application in a Case on 9 September 2020. On 9 October 2020 the wife provided to the Court a Reply to Response to an Application in a Case dated 7 October 2020.

10. The matter proceeded before me on 12 October 2020.

Material Relied Upon

1. The husband relies upon the following documents:-

   ·    Response to an Application in a Case filed 9 September 2020;

   ·    Affidavit of the husband filed 9 September 2020;

   ·    Orders made by Registrar Lethbridge on 12 March 2019; and

   ·    Final Orders made by Registrar Mestrovic on 15 January 2020.

2. The wife relies upon the following documents:-

   ·    Reply to Response to an Application in a Case dated 7 October 2020; and

   ·    Affidavit of the wife filed 8 October 2020.

The Hearing

1. The husband represented himself throughout the hearing and the wife was represented by counsel. At the commencement of the hearing I explained to the husband the manner in which the hearing was to proceed.

2. Prior to the hearing the husband had filed two Responses to an Application in a Case; one on 1 September 2020 and another on 9 September 2020. Upon confirmation of the documents he was to rely on, the husband indicated that the most recent Response “supersedes” his earlier one. Upon discussions with the husband and counsel for the wife, with the consent of the parties I granted leave to the husband to withdraw his Response to an Application in a Case filed 1 September 2020.

3. The hearing was conducted on the papers.  Each party relied upon the material referred to above and submissions made to the Court virtually via Microsoft Teams. 

4. Given the nature of the hearing, contentious facts cannot be determined without evidence being properly tested.  Accordingly, in determining the matter, I have relied upon those facts which are agreed or not in issue.

Discussion

Company Bank Accounts

1. Pursuant to 4.1 of his Response to an Application in a Case filed 9 September 2020, the husband sought that the wife “remove herself” from the J Pty Ltd and F Pty Ltd company bank accounts (“Company Accounts”).

2. In his affidavit filed 9 September 2020, the husband deposes at paragraph 4.1.1 that he has sent letters requesting the wife’s removal from the Company Accounts and alleges that she has been “dipping into” those accounts causing damage to the companies.  Further, at paragraph 4.2.1 of his affidavit the husband alleges that on 15 May 2020 the wife caused the bank to alter the manner in which the Company Accounts operate, necessitating the signatures of both the husband and the wife for transacting and not just that of the husband.

3. The husband alleges that the wife refused to sign documents to remove her access to the Company Accounts.[1]

   [1] Affidavit of the husband filed 9 September 2020, para 4.1.1.

4. The husband contends that as a result of that refusal, the wife is in breach of paragraph 3(d) of the Final Orders, which provide as follows:-

   (3)To give effect to paragraph 1 of these Orders, the Wife do all acts and things and sign all documents, at the expense of the Husband, on or before the Date (or on such date as is otherwise specified) required to:

   …

   d)Pending the implementation of paragraph 6, execute all documents as requested by the Husband in relation to the Husband’s Companies, the Husband’s Trusts and the Husband’s Entities within forty-eight (48) hours of any request.

5. The wife denies those allegations. 

6. At paragraph 7 of her affidavit filed 8 October 2020, the wife denies she has refused to sign documents facilitating her removal from the Company Accounts. Further, she deposes that she requested that the Bank remove her from the J Pty Ltd bank account. The wife deposes she was informed by the bank officer that she cannot be removed as a signatory to that account in circumstances where she remains a director and shareholder of the entity and that the account must be closed in order for her to be removed. The wife deposes that she informed the husband of this on 9 April 2020, but that he did not respond (Annexure W-2 to the wife’s affidavit filed 8 October 2020).

1. At paragraph 7(c) of her affidavit the wife deposed that:-

   I will sign all documents necessary to have the J Pty Ltd bank account closed (which is different to removing me from the account), if the Respondent seeks that this action be taken.

2. Pursuant to the Final Orders, there is no specific order relating to the control of Company Accounts. Paragraph 6 of the Final Orders provides that the wife is to resign as a director and/or secretary from the husband’s entities and transfer to him her shareholdings in those entities contemporaneously with the husband discharging the mortgage over the former matrimonial home; that has not yet occurred.  Accordingly, the wife continues as a director and shareholder of the husband’s entities.

3. In order to resolve the impasse as to the operation of the Company’s accounts, counsel for the wife confirmed that the wife was willing to sign documents necessary to close the account.

4. After discussion, the husband conceded that the wife’s proposal that she sign documentation removing herself as a signatory to those accounts was a sensible resolution of the issue.  Accordingly I will make orders as proposed by the wife’s counsel that the wife sign documents consenting to her removal as a signatory to the accounts within 7 days of production of them by the husband. 

Refund

1. The husband seeks that the wife repay him $1,000 allegedly demanded from him as a “ransom”. The husband alleges that the wife demanded that he pay to her $1,000 in exchange for her providing her consent to the removal of the requirement for her authorisation for payments from the Company Accounts.[2]

   [2] Ibid 4.2.1.

2. The wife denies the husband’s allegations.  She refers to and relies upon correspondence annexed to her affidavit (W-2) which evidences her attempts to remove her sister as a signatory to the account as she no longer worked for the company. 

3. Further, the wife deposes that when notified by the husband of the bank’s intention to require authorisation from both parties for transactions, she notified the bank that that should not occur.  At paragraph 8 of her affidavit the wife deposes that she emailed the bank at 3.09 p.m. on 15 May 2020 requesting that the block on the account be removed and that that request was actioned at approximately 4.00 p.m. that day.

4. The wife deposes that during a conversation with the husband that day, she requested that he pay to her overdue payments for the Body Corporate ($2,502.50) and the child’s uniform expenses ($458.85).[3] These expenses were required to be paid pursuant to the Binding Child Support Agreement and Financial Agreement between the parties.

   [3] Affidavit of the wife filed 8 October 2020, para 8(g).

5. The wife deposes that the husband transferred to her account the sum of $3,502.50, being an overpayment of $541.15. The wife has offered to reimburse that overpayment.  That offer was repeated by the wife’s counsel during the hearing.

6. I am satisfied having regard to the above that the husband’s application for the repayment of $1,000 was ill-conceived and that the relief he sought was beyond the power of this Court.

7. During the course of submissions the husband conceded that he would abandon that part of his application given the wife’s offer to reimburse him $541.15.  In my view that was an appropriate course.

Australian Taxation Office (“ATO”) Liability

1. Paragraph 4.3 of the husband’s application seeks the wife refund to him $60,000 allegedly taken by her from PAYG instalments, which he alleges she used to reduce her own ATO debt. The husband asserts that the $60,000 in PAYG instalments paid to the ATO by the husband were falsely used to debit the wife’s 2018 taxation liability.[4] As a result, the husband is seeking that the wife repay to him the sum of $60,000.

   [4] Affidavit of the husband filed 9 September 2020, para 4.3.

2. The wife deposes that the parties met their taxation liabilities in accordance with the orders made on 12 March 2019, which provided as follows:-

   (1)The parties do all things to forthwith lodge the Wife's 2018 taxation return (expected to create a liability of circa $126,000).

   (2)Upon lodgement of the Wife's return, the parties do all things and sign all documents to withdraw and apply towards the Wife's tax liability and the Husband's tax liability for 2018 (in the sum of $672,166.70):

   2.1one half of the combined liability from the Location K Offset account; and

   2.2the balance required to the meet the combined tax liabilities from the Suburb C Offset account.

3. The wife deposes that the parties’ accountant prepared both of their taxation returns for the year ending 2018. The wife further deposes that the notice of assessment provided that the gross tax payable was $171,096.20, higher than the estimate set out in the interim orders. The accountant advised the wife that whilst the $171,096.20 was the gross amount, the ATO had not credited the parties with the tax that they had already paid.[5] Thus, the net amount payable by the parties for the wife’s 2018 taxation liability was $111,003.20.

   [5]Affidavit of the wife filed 8 October 2020, para 9.

4. The total combined taxation liability of the parties was $783,169.90, half of which was met from the Location K Offset Account and the remainder from the Suburb C Offset account, as provided for in the orders of 12 March 2019.

5. Having regard to the wife’s evidence, particularly the correspondence from the parties’ accountant dated 11 April 2019 (W-6) which confirms the extent of the parties’ taxation liabilities and W-7, being the statement from the parties’ offset account confirming payment of the liability in accordance with the March 2019 orders, I do not accept the husband’s claim for a refund of payments made pursuant to those orders.  That part of his application must fail.

Wealth Package

1. At paragraph 4.4 of the husband’s application, he seeks that the wife refund to him $395 which he paid as a part of the wife’s “wealth package” provided by the bank.[6]

   [6] Affidavit of the husband filed 9 September 2020, para 4.4

2. The wife’s evidence is that the “wealth package” was offered to the parties to enable them to obtain discounted interest rates on their loans.  She deposes that the bank officer informed her that the package enables the parties to obtain a reduction in the interest rate on their home loan of 1.5%, “which means in a year with package [the parties] save nearly $31k interest per year on [their] current mortgage balance”.[7]

   [7] Affidavit of the wife filed 8 October 2020, para 10.

3. Given the husband’s obligation to meet the mortgage repayments pursuant to paragraph 5 of the Final Orders, it is the wife’s position that he should also meet the expenses associated with the mortgage facility, including the cost of the wealth package.

4. I accept that submission.  The husband’s complaint with respect to that cost on the mortgage is in my view petty and short-sighted, particularly having regard to the apparent benefits to the parties in terms of savings under the mortgage that the wealth package provides.  Accordingly, I will dismiss that part of the husband’s application.

Damages

1. At paragraph 4.6 of his application the husband seeks the wife pay to him the sum of $58,000 in respect of damages incurred by the husband in relation to his companies as well as his personal property.

2. The husband alleges that he is entitled to damages as a result of the harm suffered by his companies due to the wife’s actions.[8] The husband deposes that as a result of the wife’s refusal to remove herself from the Company Accounts, he has had to incur extra costs to prevent the wife accessing the company bank accounts. Further, the husband alleges that the wife’s interference with the operation of those accounts resulted in company employees not being paid, for which the husband says he incurred further consultancy costs.

   [8] Affidavit of the husband filed 9 September 2020, para 4.6.

3. The husband also submitted that the wife was in breach of paragraph 20 of the Final Orders, which provides that:-

   Neither party will publicly disparage or encourage or participate in any third-party disparagement of the other with regard to any matter the subject of, or associated with, the parties, the parties marriage and separation, the Husband’s Companies, the Husband’s Trusts, the Husband’s Entities, these Orders and the Section 90D Financial Agreement executed by the parties.

4. The husband made oral submissions that when the wife contacted the Commonwealth Bank of Australia with respect to the Company Accounts, she disclosed private company information to the bank without permission. As a result, the husband alleges that the wife acted in a way that publically disparaged the husband’s company.

5. The husband adduces no evidence as to how the wife has disparaged him or his company.  Accordingly, I do not accept the husband’s contentions that the wife has breached order 20 of the Final Orders.

6. The wife denies the husband’s claim for damages.

7. As to his complaints about the wife’s alleged refusal to be removed from the company accounts, I have dealt with those matters earlier in this judgment.  I reject the husband’s contentions with respect to those matters.

8. Further, the husband is critical that the wife refused to provide her driver’s licence details to him in a timely manner to enable the creation of overseas bank accounts.  The wife denies that allegation and relies on paragraph 11(a) of her affidavit wherein she deposes that she responded to the request for her licence number on the same day as contacted in respect of the same.  Annexed to her affidavit at annexure W-9 is a copy of the request to her from Mr M dated 1 May 2020 and her response to that request of the same day. 

9. Having regard to that evidence, I do not accept the husband’s allegations that she failed to respond to those requests in a timely fashion.

10. Even were the husband’s contentions accepted, he does not identify the source of power that would enable this Court to order damages as sought by him.  In my view, having regard to the Final Orders, this Court has no power to provide the relief as sought by the husband.  Accordingly, his application for damages must fail.

11. The husband also complains that he has incurred costs as a result of damage to his property by the process server engaged by the wife’s lawyers to serve the wife’s court documents.  The husband seeks that the wife reimburse him in relation to costs of repairs.  If as the husband alleges, there has been damage caused to his property by the process server, his claim with respect to those matters does not lie with the wife.  Accordingly, I reject the husband’s claim.

Removal of the Wife as Director

1. The husband sought that the wife be removed from her position as director of J Pty Ltd.

2. As I have set out above, paragraph 6 of the Final Orders dictates when the wife is to resign her offices in the husband’s companies. As a result, this part of the husband’s application must fail.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 24 November 2020

Associate: 

Date:  24 November 2020