Jordan & Sutton - [2022] FedCFamC1F 553

Federal Circuit and Family Court of Australia
(DIVISION 1)
Jordan & Sutton [2022] FedCFamC1F 553

File number(s): SYC 6819 of 2018

Judgment of: HARPER J

Date of judgment: 1 August 2022

Catchwords: FAMILY LAW – INJUNCTIONS – Preservation of property – Where husband sold interest in company with proceeds of approximately $175 million – Wife seeks preservation of funds in a bank account and injunction restraining the husband withdrawing said funds – Husband intends to use proceeds for capital raising in other companies, payment of legal fees and tax liabilities, and investment in publicly listed companies – Where wife was advised that date for completion of sale had been moved to the following day – Sale made in the ordinary course of business – Claim that injunction necessary to preserve status quo pending final hearing – Where final orders will inevitably require the husband to liquidate or transfer parts of his multiple shareholdings – Final orders will inevitably impact third party shareholder rights – Where proposed investments would likely increase parties’ asset pool at final hearing – No risk of dissipation of assets or frustration of court’s orders – Application dismissed.

Legislation: Family Law Act 1975 (Cth) ss 79, 114

Cases cited: Tsiang & Wu and Ors (2019) FLC 93-911; [2019] FamCAFC 128

Division: Division 1 First Instance

Number of paragraphs: 42

Date of hearing: 29 July 2022

Place: Sydney

Counsel for the Applicant: Mr Newlinds SC, with Ms Hall

Solicitor for the Applicant: Barkus Doolan Winning Family Lawyers

Counsel for the First Respondent: Mr Cummings SC, with Mr Barnett and Mr Springthorpe

Solicitor for the First Respondent: Pearson Emerson Family Law

The Second and Third Respondent: No appearances required

Counsel for the Intervener: Mr Yin

Table of Corrections

4 August 2022 At paragraph 40, the second sentence has been inserted: “Against this are the following considerations.”
ORDERS

SYC 6819 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS JORDAN

Applicant

AND:
MR SUTTON

First Respondent

B PTY LTD
Second Respondent

D PTY LTD
Third Respondent

C PTY LTD
Intervener

order made by:

HARPER J

DATE OF ORDER:

1 August 2022

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Applicant Wife (“the wife”) on 27 July 2022 be dismissed.
2.Pending further order, the Respondent Husband (“the husband”) forthwith pay $72,692,745 into a separately identified interest-bearing account in the name of the husband held with the Commonwealth Bank of Australia, on the husband’s undertaking:
(a)not to withdraw, disburse or use any of the funds so deposited other than for the purpose of paying tax liabilities of him personally or of companies which he wholly owns; and
(b)to give the wife 14 days’ written notice before withdrawing money for that purpose.

3.Within 48 hours of opening the account referred to in Order 2, the husband shall notify the wife of the details of the said account, including the account number and the branch of the Commonwealth Bank of Australia at which it is held.

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 Jordan & Sutton

Details

AGLC: Jordan & Sutton [2022] FedCFamC1F 553
Case: [2022] FedCFamC1F 553
Decision Date: 1 August 2022

CaseChat Overview and Summary

The matter involved a wife who sought to obtain an injunction to preserve funds held by her husband in a bank account. The wife sought the injunction on the basis that the husband had sold his interest in a company for approximately $175 million and intended to use the proceeds for various purposes. The husband was to use the funds to raise capital in other companies, pay legal fees and tax liabilities, and invest in publicly listed companies. The wife sought to preserve the status quo pending the final hearing of the matter. The husband argued that there was no risk of dissipation of assets or frustration of the court’s orders and that the proposed investments would likely increase the asset pool at the final hearing. The court dismissed the wife’s application.

The legal issues before the court were whether an injunction was necessary to preserve the status quo pending the final hearing of the matter, and whether there was a risk of dissipation of assets or frustration of the court’s orders. The court considered whether the wife had established that there was a serious question to be tried and whether the balance of convenience favoured the granting of the injunction. The court also considered the impact of the proposed investments on the asset pool at the final hearing.

The court found that the wife had not established a serious question to be tried and that the balance of convenience did not favour the granting of the injunction. The court found that the husband’s proposed use of the funds was in the ordinary course of business and that there was no risk of dissipation of assets or frustration of the court’s orders. The court also found that the proposed investments would likely increase the asset pool at the final hearing. The court held that the application for an injunction should be dismissed.

The court made orders dismissing the wife’s application and requiring the husband to pay a specified amount of money into a separately identified interest-bearing account. The husband was also required to give the wife notice before withdrawing money from the account for the purpose of paying tax liabilities. The husband’s undertaking given on a previous date was released upon the making of these orders. The court reserved the question of costs for further consideration at the final hearing.

Orders

Orders of the court

SYC 6819 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS JORDAN

Applicant

AND:

MR SUTTON

First Respondent

B PTY LTD

Second Respondent

D PTY LTD

Third Respondent

C PTY LTD

Intervener

order made by:

HARPER J

DATE OF ORDER:

1 August 2022

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed by the Applicant Wife (“the wife”) on 27 July 2022 be dismissed.

2. Pending further order, the Respondent Husband (“the husband”) forthwith pay $72,692,745 into a separately identified interest-bearing account in the name of the husband held with the Commonwealth Bank of Australia, on the husband’s undertaking:

(a) not to withdraw, disburse or use any of the funds so deposited other than for the purpose of paying tax liabilities of him personally or of companies which he wholly owns; and

(b) to give the wife 14 days’ written notice before withdrawing money for that purpose.

3. Within 48 hours of opening the account referred to in Order 2, the husband shall notify the wife of the details of the said account, including the account number and the branch of the Commonwealth Bank of Australia at which it is held.

4. The undertaking of the husband given on 29 July 2022 be released upon the making of these orders.

5. All questions of costs of the application the subject of this judgment be reserved for further consideration at final hearing.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 6819 of 2018
Judgment of:	HARPER J
Date of judgment:	1 August 2022
Catchwords:	FAMILY LAW – INJUNCTIONS – Preservation of property – Where husband sold interest in company with proceeds of approximately $175 million – Wife seeks preservation of funds in a bank account and injunction restraining the husband withdrawing said funds – Husband intends to use proceeds for capital raising in other companies, payment of legal fees and tax liabilities, and investment in publicly listed companies – Where wife was advised that date for completion of sale had been moved to the following day – Sale made in the ordinary course of business – Claim that injunction necessary to preserve status quo pending final hearing – Where final orders will inevitably require the husband to liquidate or transfer parts of his multiple shareholdings – Final orders will inevitably impact third party shareholder rights – Where proposed investments would likely increase parties’ asset pool at final hearing – No risk of dissipation of assets or frustration of court’s orders – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 79, 114
Cases cited:	Tsiang & Wu and Ors (2019) FLC 93-911; [2019] FamCAFC 128
Division:	Division 1 First Instance
Number of paragraphs:	42
Date of hearing:	29 July 2022
Place:	Sydney
Counsel for the Applicant:	Mr Newlinds SC, with Ms Hall
Solicitor for the Applicant:	Barkus Doolan Winning Family Lawyers
Counsel for the First Respondent:	Mr Cummings SC, with Mr Barnett and Mr Springthorpe
Solicitor for the First Respondent:	Pearson Emerson Family Law
The Second and Third Respondent:	No appearances required
Counsel for the Intervener:	Mr Yin

Table of Corrections
4 August 2022	At paragraph 40, the second sentence has been inserted: “Against this are the following considerations.”

SYC 6819 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS JORDAN Applicant
AND:	MR SUTTON First Respondent B PTY LTD Second Respondent D PTY LTD Third Respondent C PTY LTD Intervener

order made by:	HARPER J
DATE OF ORDER:	1 August 2022