Jacobs and Jacobs and Ors

[2015] FamCA 830

FAMILY COURT OF AUSTRALIA

JACOBS & JACOBS AND ORS [2015] FamCA 830

FAMILY LAW – INTERIM PROPERTY

APPLICANT: Ms Jacobs

FIRST RESPONDENT: Mr Jacobs

SECOND RESPONDENT: Mr A Jacobs

THIRD RESPONDENT: Ms B Jacobs

FOURTH RESPONDENT: Mr Johns and Mr Chatham as trustees of the Bankrupt Estate of Mr Jacobs

FILE NUMBER: BRC 798 of 2013

DATE DELIVERED: 21 September 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 21 September 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Wedgwood, Barry.Nilsson Lawyers

FIRST RESPONDENT: In Person

SECOND RESPONDENT: No appearance

THIRD RESPONDENT: No appearance

FOURTH RESPONDENT: Ms Smith, Allens

Orders

IT IS ORDERED THAT

1. The Application in a Case filed 2 July 2015 and the Application in a Case filed 28 August 2015 as amended on 17 September 2015 are adjourned for further hearing to the Judicial Duty List commencing at 10.00 am on 26 October 2015.

AND IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Mr Johns and Mr Chatham as trustees of the Bankrupt Estate of Mr Jacobs be joined as the Fourth Respondent.

2. Paragraph 6 of the Order made on 18 September 2015 by the Honourable Justice Kent is discharged.

3. By 4.00 pm on Wednesday, 23 September 2015 the Second and Third Respondents cause to be provided to the Applicant’s solicitors all documents pertaining to the contract/s of the sale due to settle on 18 September 2015 which contract/s were terminated on that date.

4. By 4.00 pm on Friday, 25 September 2015 the First Respondent, Second Respondent and Third Respondent provide to Ms Jacobs a copy of any and all documents relating to the transfer, sale or proposed sale of the interests of either or all of them in any of the following entities or of the assets or any form of property, including but not limited to intellectual property, owned by any of the following entities:

   (a)Mr Jacobs Family Trust;

   (b)Jacobs C Pty Ltd;

   (c)Jacobs D Pty Ltd;

   (d)Jacobs E Pty Ltd;

   (e)Jacobs F Pty Ltd;

   (f)G Pty Ltd;

   (g)H Pty Ltd;

   (h)Jacobs SA Pty Ltd;

   (i)          I Pty Ltd;

   (j)          J Pty Ltd;

   (k)L Pty Ltd;

   (l)          M Pty Ltd;

   (m)N Pty Ltd;

   (n)O Pty Ltd;

   (o)P Pty Ltd;

   (p)Q Pty Ltd;

   (q)R Family Trust;

   (r)S Family Trust;

   (s)T Pty Ltd;

   (t)          W Pty Ltd;

   (u)X Pty Ltd;

   (v)Y Pty Ltd;

   (w)Z Pty Ltd;

   (x)AA Pty. Ltd; and

   (y)any other entity in which the Frist Respondent, Second Respondent and Third Respondent have an interest;

   for the period 28 December 2012 to the date of these Orders.

5. Pursuant to ss 114(3) and 114(4) of the Family Law Act 1975 (Cth), Mr Johns and Mr Chatham as trustees of the Bankrupt Estate of Mr Jacobs be restrained from declaring and distributing dividends amongst the creditors of the First Respondent.

6. Upon the First Respondent receiving any consideration as a result of the sale, transfer, disposal or alienation in any other form of any interest he has in any of the following entities or of any asset or any form of property, including but not limited to intellectual property, owned by any of the following entities:

   (a)Mr Jacobs Family Trust;

   (b)Jacobs C Pty Ltd;

   (c)Jacobs D Pty Ltd;

   (d)Jacobs E Pty Ltd;

   (e)Jacobs F Pty Ltd;

   (f)G  Pty Ltd;

   (g)H Pty Ltd;

   (h)Jacobs SA Pty Ltd;

   (i)          I Pty Ltd;

   (j)          J Pty Ltd;

   (k)L Pty Ltd;

   (l)          M Pty Ltd;

   (m)N Pty Ltd;

   (n)O Pty Ltd;

   (o)P Pty Ltd;

   (p)Q Pty Ltd;

   (q)R Family Trust;

   (r)          S Family Trust;

   (s)T Pty Ltd;

   (t)          W Pty Ltd;

   (u)X Pty Ltd;

   (v)Y Pty Ltd;

   (w)Z Pty Ltd;

   (x)AA Pty. Ltd; and

   (y)any other entity in which the First Respondent has an interest,

   the First Respondent shall do all acts and things and sign and/or execute all such documents as are required to ensure that such monies be placed into the trust account of Barry.Nilsson Lawyers and not to be released except pursuant to an Order of this Court.

7. The Second and Third Respondents, in their capacity as directors of each of the following companies:

   (a)N Pty Ltd;

   (b)Jacobs SA Pty Ltd;

   (c)O Pty Ltd;

   (d)P Pty Ltd;

   (e)W Pty Ltd; and

   (f)          Jacobs E Pty Ltd.

   and in their respective capacities as trustee and/or appointor of each of the following trusts:

   (g)S Family Trust;

   (h)Mr Jacobs Family Trust; and

   (i)R Family Trust,

   are hereby restrained from causing or directing any other person to cause any of the abovementioned entities to distribute, transfer or in any way deal with any proceeds of sale or monies otherwise received by any of the abovementioned entities other than in accordance with these Orders and shall do all acts and things and sign and/or execute all documents required to cause such monies to be transferred into the trust account of Barry.Nilsson. Lawyers immediately upon their receipt by any of the above entities or by any solicitor acting on behalf of any of those entities, with such monies not to be released except pursuant to a further Order of this Court.

8. The First Respondent, Second Respondent and Third Respondent to these proceedings be restrained from dealing in any way with their interests in and/or the assets, liabilities or any other form of property of each of the following entities other than with the written consent of the Applicant:

   (a)Mr Jacobs Family Trust;

   (b)Jacobs C Pty Ltd;

   (c)Jacobs D Pty Ltd;

   (d)Jacobs E Pty Ltd;

   (e)Jacobs F Pty Ltd;

   (f)G  Pty Ltd;

   (g)H Pty Ltd;

   (h)Jacobs SA Pty Ltd;

   (i)          I Pty Ltd;

   (j)          J Pty Ltd;

   (k)L Pty Ltd;

   (l)          M Pty Ltd;

   (m)N Pty Ltd;

   (n)O Pty Ltd;

   (o)P Pty Ltd;

   (p)Q Pty Ltd;

   (q)R Family Trust;

   (r)          S Family Trust;

   (s)T Pty Ltd;

   (t)          W Pty Ltd;

   (u)X Pty Ltd;

   (v)Y Pty Ltd;

   (w)Z Pty Ltd;

   (x)AA Pty. Ltd;  and

   (y)any other entity in which the First Respondent has an interest.

9. In the event that either party refuses or neglects to do any act or sign any document required to be signed or executed in compliance with the provisions of these Orders, then pursuant to s 106A of the Family Law Act 1975 (Cth), the Registrar or Deputy Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to the said Order and the affidavit of the solicitor for the non-defaulting party shall be sufficient evidence of such non-compliance. The party in default is ordered to pay all reasonable solicitor/own costs incurred by the non-defaulting party.

10. The First Respondent, Second Respondent and Third Respondent are restrained from dealing with any of the entities named in this Order and the subject of the Amended Application in a Case filed 17 September 2015 without the consent in writing of the Applicant.

11. The parties have liberty to apply on the giving of 24 hours notice in writing and any such application required to be heard prior to 26 October 2015 be listed before the Honourable Justice Hogan at a time and date to be notified.

12. The Applicant’s costs of and incidental to this hearing are reserved.

AND IT IS DIRECTED

1. The Second Respondent and Third Respondent file a Notice of Address for Service within 48 hours of the service of this Order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jacobs & Jacobs and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 798 of 2013

Ms Jacobs

Applicant

And

Mr Jacobs

First Respondent

And

Mr A Jacobs

Second Respondent

And

Ms B Jacobs

Third Respondent

And

Mr Johns and Mr Chatham as trustees of the Bankrupt Estate of Mr Jacobs

Fourth Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Having regard to the contents of the written submissions prepared by and relied upon the solicitors for the Applicant as handed to the Court today (as marked by me with today’s date and bearing my initial), I am persuaded that it is appropriate and necessary to make the orders sought in the Minute of Order provided to the court by Mr Wedgwood.  It is, in my view, necessary that those orders be put in place in order to guard against the risk of dissipation of the property of the parties which would otherwise be amenable to the proceedings that are currently before the Court.

2. I take into account the relatively short period of time within which notice has been given to Mr A Jacobs and Ms B Jacobs in their capacity as directors of identified entities by way of service of documents upon the registered officers of those entities late last week. 

3. For those reasons, and the reason that Mr Jacobs sought an adjournment of the hearing of the application and the making of orders, I am persuaded that it is also appropriate to make orders according to the parties’ liberty to apply in relation to the orders I intend to make.  I intend also to make an order that adjourns the further hearing of the outstanding Applications in a Case to the judicial duty list at 10.00 am on 26 October 2015. 

4. So I make orders in terms of Clauses 1 and 2 of the draft Minute of Order, save that Clause 2 will simply adjourn those Applications to 10.00 am on 26 October.

5. I make an order in terms of Clause 3 of the Minute and in terms of Clause 4, save that the timeframe for the provision of documents will be by 4.00 pm Friday. 25 September 2014.

6. Additionally, I make an order in these terms:  that by 4.00 pm on Wednesday 23 September 2015, Mr A Jacobs and Ms B Jacobs cause to be provided to the wife’s solicitors all documents pertaining to the Contract of Sale or Contracts of Sale due to settle on Friday 18 September 2015 which such Contract or Contracts were terminated on that date.

7. So I otherwise make orders in terms of Clauses 5, 6, 7, 8, 9 and 10 of the proposed Minute of Order. 

8. I make a further order in these terms: that Mr Jacobs, Mr A Jacobs and Ms B Jacobs be restrained from dealing with any of the entities named in this order and the subject of the Application in a Case filed 17 September 2015, without the consent in writing of the wife.

9. I make an order that the parties have liberty to apply on the giving of 24 hours notice in writing and I direct that any such application which is made prior to 26 October 2015 be listed before me at a time to be notified to the parties.

10. I will make a direction that, within 48 hours of service of today’s order, Mr A Jacobs and Ms B Jacobs file a Notice of Address for Service in the Court.

11. Insofar as it is necessary to provide an explanation of the basis of orders which are intended to remain in force only until 26 October 2015 or earlier in the event of a party taking advantage of the liberty to apply Clause of the order, I accept the thrust of the submissions contained within the written submissions provided by the wife and, as I have said, it seems to me to be appropriate and necessary and that the interests of justice require that the interlocutory injunctive orders be made in the terms I have determined so as to preserve the property of the parties pending further discussion about what is appropriate;  and also to provide the parties with the opportunity to further consider their positions.

12. For those short reasons, then, an order will issue in those terms. 

I certify that the preceding twelve (12) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan delivered on 21 September 2015.

Associate:                 KV

Date:    21 September 2015