JAYE & WALES - [2020] FamCA 518

FAMILY COURT OF AUSTRALIA

JAYE & WALES

[2020] FamCA 518

FAMILY LAW – PROPERTY – Interim – Where the applicant wife seeks an injunction obliging the husband to cause the company, that the parties jointly own, to advance to her $2,400,000 to buy her preferred property – Where the wife currently lives in an unencumbered property of a similar value and has sought to retain that property since the commencement of the proceedings – Where there is evidence that the order that the wife seeks could cause loss to the parties – Where no injustice will be caused by refusing to make an interim property adjustment order – Where the application is dismissed.

FAMILY LAW – INJUNCTIONS – Preservation of Property – Where the applicant wife seeks an injunction restraining the respondent husband from dealing with assets of the company of which he is a sole director, without the wife’s written consent – Where the respondent husband opposes the making of an injunction – Where there is potential for the husband, having sole control of the majority of the parties’ property interests, to, if not restrained, act in ways that could prejudice the wife’s claim for property adjustment – Where the balance of convenience favours an injunction being granted – Where the husband will be restrained from dealing with the assets of the company, without first providing the wife with at least 14 days’ written notice of his intention to do so.

FAMILY LAW – PRACTICE AND PROCEDURE – Disclosure – Where the wife seeks certain documents be disclosed by the husband – Where the husband asserts that the wife has failed to establish the relevance of the documents she seeks – Where the Court is satisfied that the documents sought by the wife are relevant at this point in time to an issue in the proceedings and a fair disposal of these issues necessitates the disclosure – Where the husband also seeks orders for disclosure by the wife – Where those orders will also be made.

Family Law Act 1975 (Cth)

B & B (1979) 1 All ER 801
Marchant & Marchant (2012) FLC 93-520
Smith v The Queen (2001) 206 CLR 650
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

APPLICANT:

Ms Jaye

RESPONDENT:

Mr Wales

FILE NUMBER:

BRC

9298

2019

DATE DELIVERED:

29 June 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

22 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Alexander

SOLICITOR FOR THE APPLICANT:

Evans Brandon Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kirk QC

SOLICITOR FOR THE RESPONDENT:

Damien Greer Lawyers

Orders

Interim Injunction

That until further order, the husband is hereby restrained from:
(a)selling, transferring, assigning, encumbering or alienating any of his shares and/or interest of any nature in the company B Pty Ltd and/or appointing any directors or otherwise acting in such a way as to cause a reduction in the value of the assets of B Pty Ltd, or incurring expenses or liabilities…

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 JAYE & WALES

Details

AGLC: JAYE & WALES [2020] FamCA 518
Case: [2020] FamCA 518
Decision Date: 29 June 2020

CaseChat Overview and Summary

The applicant wife sought an interim injunction restraining the respondent husband from dealing with the assets of a company they jointly owned, B Pty Ltd, without her consent. She also sought an order compelling the husband to cause the company to advance her $2,400,000 to purchase a property, and for the disclosure of certain documents. The husband opposed the injunction and the property advance order.

The court was required to determine whether to grant an interim injunction restraining the husband's dealings with company assets, whether to order an interim property adjustment by way of a company advance to the wife, and what disclosure orders should be made. The court also considered the wife's request for specific documents and the husband's reciprocal request for disclosure from the wife.

Regarding the interim property adjustment, the court found that the wife already resided in an unencumbered property of similar value and had sought to retain it. The evidence suggested that the requested advance could cause loss to the parties, and no injustice would arise from refusing the interim order. Consequently, this application was dismissed. However, the court granted an interim injunction restraining the husband from dealing with the assets of B Pty Ltd, including his shares and non-core business assets, and from withdrawing funds from company bank accounts, except in the ordinary course of business or for agreed weekly payments. This injunction was made conditional on the husband providing the wife with at least 14 days' written notice of any intended dealings. The court was satisfied that the documents sought by the wife were relevant to the proceedings and necessary for a fair disposal of the issues, ordering their disclosure by the husband. Reciprocal disclosure orders were also made against the wife.

Orders

Orders of the court

Interim Injunction

That until further order, the husband is hereby restrained from:

(a) selling, transferring, assigning, encumbering or alienating any of his shares and/or interest of any nature in the company B Pty Ltd and/or appointing any directors or otherwise acting in such a way as to cause a reduction in the value of the assets of B Pty Ltd, or incurring expenses or liabilities in the name of B Pty Ltd except in the ordinary course of the business run by B Pty Ltd;

(b) Selling, transferring, otherwise disposing of or encumbering any of the non-core business assets of B Pty Ltd including but not limited to the house he lives in, the motor cars he uses, money owed to the company by his parents, and shares in ASX listed companies;

(c) Withdrawing, transferring or otherwise spending money from B Pty Ltd’s bank accounts other than in the ordinary course of the business run by B Pty Ltd or, to be specific, to pay weekly amounts to himself and to the wife in accordance with the regular transfer arrangements already in place;

without first giving the wife, through her solicitors, Evans Brandon Family Lawyers (or such other firm as the wife may advise him she instructs in these proceedings from time to time), at least fourteen (14) days’ written notice of his intention to do so.

Disclosure

That within twenty eight (28) days, the Respondent Husband provide to the Applicant Wife, by her solicitors, copies of the following documents by way of disclosure:

(a) For the Husband's personally held ANZ share portfolio (numbered …72), documents in relation to the portfolio holdings between 1 July 2018 and the current date showing the parcels and stocks held and movements in the value and quantum of same by way of buying and selling transactions;

(b) Documents relating to the ANZ cash investment account/share portfolio numbered …90 held by B Pty Ltd dated 1 July 2018 to current including documents showing the transactions engaged in since 30 June 2018 and movements in the associated bank account;

(c) Documents relating to the "Cash on hand and Cash Draw" asset referred to in the balance sheet sent by the Husband's solicitors to the Wife's solicitors by email dated 3 December 2019 including, if applicable, petty cash history for B Pty Ltd for 1 July 2018 to current;

(d) Documents relating to the "Debtors" asset referred to in the balance sheet sent by the Husband's solicitors to the Wife's solicitors by email dated 3 December 2019;

(e) Documents showing advance of company funds to the Husband's parents for the purchase of a real property and any repayments received from or for them, referred to in the balance sheet sent by the Husband's solicitors to the Wife's solicitors by email dated 3 December 2019;

(f) Documents, including any relevant ledgers, showing the calculation and movement of the existing "Division 7A loan balance" item referred to in the balance sheet sent by the Husband's solicitors to the Wife's solicitors by email dated 3 December 2019;

(g) Any signed Division 7A loan agreements in respect of the Division 7A loan balance item referred to in the balance sheet sent by the Husband's solicitors to the Wife's solicitors by email dated 3 December 2019;

(h) Copies of any emails from the accountant for B Pty Ltd providing advice about Division 7A issues from time to time since the inception of Division 7A loans between B Pty Ltd and either party;

(i) Documents relevant to the acquisition of the Golf buggy 1 referred to in the balance sheet sent by the Husband's solicitors to the Wife's solicitors by email dated 3 December 2019;

(j) The FYE2019, or any subsequent, depreciation schedule and detailed plant and equipment list for B Pty Ltd;

(k) Documents relevant to the acquisition and performance of the "sports" and "website" assets referred to in the balance sheet sent by the Husband's solicitors to the Wife's solicitors by email dated 3 December 2019;

(l) Disclosure relating to any gambling accounts held by the Husband;

(m) In relation to the bank accounts held by B Pty Ltd:

(i) Copies of the ANZ “Multipayment/Pay Anyone” information setting out the details of the payees of the multipayments, for those multipayments made since 30 June, 2018, including but not limited to payee, payee ABN or payee reference and payee account details; and

(ii) Copies of the instructions to the ANZ Bank which gave rise to payments entitled (in the statements), “Direct Entry ANZ Transactive File Value” including but not limited to the payee, payee reference and payee/recipient account details for the period 30 June, 2018 and the current date;

(n) In relation to the records of B Pty Ltd, the data showing the Husband’s drawings or benefits in addition to his wage or salary after 30 June, 2018 whether this is recorded in fringe benefits tax records, drawings, loan accounts, ledger records or source documents, including costs for the Motor Vehicle 1 and a vessel and Husband's personal travel;

(o) Statements for the ANZ Negotiator Account ending ...05 for 29 June 2019 to 30 July 2019;

(p) Payslips for 1 July 2018 - 13 October 2019;

(q) Detailed General Ledger entries for the Directors Loan arrangements between B Pty Ltd and the parties and source documents for 1 July 2014 - current, setting out dates of payments, purpose of payments, data supporting the calculations of the loans described as follows and any further directors' loans arising since FYE2018:

(i) …10 – ‘Loan to Directors - Mortgage Loan 2015’;

(ii) …11 – ‘Loan to Directors - 2016’;

(iii) …99 – ‘Loan to Director – Clearing a/c’;

(iv) …12 – ‘Loan to Director – 2017’; and

(v) …13 – ‘Loan to Director – 2018’;

(r) Copies of any company minutes, resolutions and similar documents dated between FYE2015 and current;

(s) Copies of any Division 7A loan calculations and any working papers or ledgers prepared for FYE 2019 and for the current financial year;

(t) Copies of documents, including relevant tax portal account records and any ATO correspondence, showing the tax liabilities owing by B Pty Ltd referred to in the balance sheet sent by the Husband's solicitors to the Wife's solicitors by email dated 3 December 2019;

(u) Bank statements for the ANZ credit cards ending #...74 and #...16 for 1 January 2019 to current; and

(v) Copies of the construction contract and other documents setting out the construction costs for the property at C Street.

That unless otherwise agreed, provision of the copies of documents required to be disclosed to the Wife by operation of Order (2) above shall be provided to the Applicant Wife through her solicitors in electronic format and may be transmitted via a cloud-based document sharing program.

Valuation Date

That the date of valuation for B Pty Ltd and D Pty Ltd to be prepared by F Accounting be 31 December 2019.

Disclosure

That within twenty eight (28) days of the date of these Orders the Wife provide to the Husband's solicitors the following documents and information by way of disclosure:

D Pty Ltd

(a) Commonwealth Bank Business Transaction BSB: … A/N: …93 statements from:

I. 1 January 2019 to 31 March 2019;

II. 1 November 2019 to 31 December 2019; and

III. 23 January 2020 to date;

(b) Documents relating to the “Cash on Hand” asset referred to in the financial statement of D Pty Ltd for the financial year ended 30 June 2019 including, if applicable, petty cash history for D Pty Ltd from 1 July 2018 to date;

(c) Documents relating to the “Trade Debtors” asset referred to in the financial statement of D Pty Ltd for the financial year ended 30 June 2019 including, if applicable, petty cash history for D Pty Ltd from 1 July 2018 to date;

(d) Depreciation schedule and detailed plant and equipment list for D Pty Ltd as at 30 June 2019 and 31 December 2019;

(e) In regards to the Loan from Director 2015/2016:

I. The executed Division 7A loan agreement;

II. Division 7A loan calculations; and

III. The General Ledger entries for the Loan;

(f) In regards to the Loan from Director 2016/2017:

I. The executed Division 7A loan agreement;

II. Division 7A loan calculations; and

III. The General Ledger entries for the Loan;

(g) In regards to the Loan from Director 2017/2018:

I. The executed Division 7A loan agreement;

II. Division 7A loan calculations; and

III. The General Ledger entries for the Loan;

(h) In regards to the Loan from Director 2018/2019:

I. The executed Division 7A loan agreement;

II. Division 7A loan calculations; and

III. The General Ledger entries for the Loan;

(i) Copies of any company minutes, resolutions and similar documents dated between the financial year ended 30 June 2015 and the financial year ended 30 June 2019;

(j) All payments and receipts for the time target software used by D Pty Ltd;

(k) All payments and receipts made in regards to any office fit-out undertaken by D Pty Ltd since 1 January 2019;

(l) Business Activity Statements from April 2020 to date;

(m) A schedule of all payments made from D Pty Ltd to Ms G from January 2019 to date;

Joint Bank Account

(n) Documents executed and/or authorised by the Wife to close the Commonwealth Bank joint account BSB: … A/N: …13;

Loan from Wife to Mr H (son)

(o) Loan agreement between the Wife and Mr H regarding the amount of $50,000 loaned by the Wife to Mr H on or around 19 May 2019;

Bank Accounts

(p) Commonwealth Bank Smart Access BSB: … A/N: …90 statements from 26 March 2020 to date;

(q) Commonwealth Bank Youth Saver (Mr J) BSB: … A/N: …02 statements from 10 February 2018 to date;

(r) Bank Smart Access BSB: … A/N: …67 statements from 26 March 2020 to date;

(s) Commonwealth Bank Smart Access BSB: … A/N: ...51 statements from 30 June 2019 to 30 September 2019 and 23 January 2020 to date;

(t) Commonwealth Bank COIA account BSB: … A/N: …56 statements from 26 March 2020 to date;

(u) Commonwealth Bank account BSB: … A/N: ...47 statements from 26 March 2020 to date;

Investments

(v) For the Wife's personally held Comsec Share Portfolio (account number …81), documents in relation to the portfolio holdings between 30 June 2019 to date showing the parcels and stock held and movements in the value and quantum of same by way of buying and selling transactions;

(w) Documents relevant to the acquisition and performance of the sports assets owned by the Wife;

Miscellaneous

(x) Disclosure relating to any gambling accounts held by the Wife.

Retrospective Valuation of K Street, Suburb L, Victoria

That M Company are appointed as the single expert for the purposes of preparing a valuation of K Street, Suburb L, Victoria as at December 2017.

That the Husband and the Wife provide to M Company an agreed letter of instruction within twenty eight (28) days of the date of these Orders.

That the Wife must do all acts and things and sign all documents as are necessary and comply with any reasonable request of M Company to provide information and documentation to complete their report within 7 days of any request.

The Husband shall cause B Pty Ltd to pay for the cost of the valuation.

Specific Questions

10.

That pursuant to Order 11 of the Orders of Judge Howard dated 3 December 2019 the Wife answer the following questions which have been asked but not answered:

(a) The Wife provide an explanation as to how she was able to close the Commonwealth Bank joint account BSB: … A/N: …13 without the Husband’s knowledge and consent;

(b) The Wife provide an explanation as to why she took $159,000 from the parties’ joint CSA bank account;

(c) The Wife provide an explanation as to how she became aware of the Husband’s alleged involvement in the renovation of the N Business;

(d) The Wife provide an explanation as to how she became aware of that the Husband “may” have purchased a number of new sports assets between 6 and 9 January 2020.

11.

That all other applications contained within the Amended Application in a Case of the Wife filed 17 June 2020, are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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