FAMILY LAW – INJUNCTIONS – prohibitory and mandatory – quia timet – whether to make such orders – intact marriage – serious issue to be tried – whether s 79 enlivened at all – held, injunction granted.
FAMILY LAW – TRUSTS – serious issue to be tried whether trustee and the natural persons controlling the trustees acting in good faith – whether trustees preferring one category of beneficiary ahead of another.
FAMILY LAW – PARTIAL PROPERTY SETTLEMENT – extremely large sums in issue in this case – whether reversible if orders made – held, not.
FAMILY LAW – EVIDENCE – whether evidence of negotiations at a mediation culminating in a document admissible – whether document created at mediation accurately described as “heads of agreement” – whether proceeding actually resolved – whether s 131(2)(f) and (g) enlivened – held, evidence about whether the proceeding in fact resolved at mediation was admissible.
Commonwealth of Australia Constitution Act 1900 (Imp), s 75(v) Corporations Act 2001 (Cth), pt 2D.1 Evidence Act 1995 (Cth), ss 4(1)(b), 75, 131(1), 131(2) Family Law Act 1975 (Cth), ss 21(2A), 72, 79, 85A, 90AE, 106B, 114 Family Law Rules 2004 (Cth), rr 5.09, 6.04 Married Women's Property Act 1882 (Imp), s 17 Supreme Court Civil Procedure Act 1932 (Tas), s 11(12) The Married Women's Property Acts 1890-1952 (Qld), s 21
[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.
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AGLC
Kain and Kain & Ors [2020] FamCA 650
Case
[2020] FamCA 650
Decision Date
CaseChat Overview and Summary
In the Family Court of Australia, Justice Wilson considered an application by the applicant in a dispute involving the first respondent and other named individuals and entities, referred to collectively as the Kain Group. The core of the dispute concerned allegations of a serious issue to be tried regarding the good faith of the trustees of certain trusts and the natural persons controlling them, specifically whether they were preferring one category of beneficiary over another. The applicant sought prohibitory and mandatory injunctions, including a quia timet injunction, in circumstances where extremely large sums were in issue and the potential for irreversible property settlement orders was a significant concern.
The court was required to determine whether to grant the injunctions sought by the applicant. This involved assessing whether a "serious issue to be tried" existed concerning the conduct of the trustees and those controlling the Kain Group entities. Furthermore, the court had to consider the admissibility of evidence relating to negotiations at a mediation, specifically whether a document produced at mediation could be accurately described as a "heads of agreement" and whether the mediation had in fact resolved the proceeding, in light of sections 131(2)(f) and (g) of the relevant legislation. The court also had to decide on applications to remove affidavits from the court file and to disjoin certain respondents.
Justice Wilson reasoned that a serious issue to be tried did exist, justifying the grant of injunctions. The court found that evidence concerning whether the mediation proceeding had actually resolved was admissible. Consequently, the court dismissed applications to remove affidavits and to disjoin respondents, but made orders joining specific individuals and entities as parties to the proceeding. The court then made orders restraining the first respondent and certain individuals in their capacities as directors from dealing with property of the Kain Group entities without the applicant's consent or court order, including distributions to beneficiaries and restructuring of the entities. The court also dismissed a specific application for partial property settlement and set a timetable for pleadings and costs applications, transferring the proceeding to its own docket.
Orders
Orders of the court
1.
I dismiss the first respondent’s application for an order that the affidavit of the applicant sworn 7 May 2020 and the affidavit of G sworn 6 May 2020 be removed from the court file.
2.
I dismiss the second to sixth respondent’s disjoinder application.
3.
I make an order nunc pro tunc joining Mr B Kain, Mr C Kain, Mr D Kain, E Pty Ltd ACN … and F Pty Ltd ACN … as parties to this proceeding.
4.
The first respondent and Mr B Kain, Mr C Kain and Mr D Kain in their capacity as directors of E Pty Ltd, F Pty Ltd and related companies –
(a) keep the applicant’s solicitors informed at all times immediately of any dealings or proposed dealings with property of any of the Kain Group entities, including providing copies of all resolutions or decisions, offers, negotiations or other communications concerning any such dealings, contemporaneously with their generation by, issue from or receipt by the Kain Group entities;
(b) be and are hereby restrained from taking any step with respect to the distribution of the proceeds of any dealings with property of any of the Kain Group entities to or for the benefit of any beneficiary of the said trusts other than the first respondent, including but not limited to the repayment of any unpaid present entitlements or loan accounts standing to the credit of the said Mr B Kain, Mr C Kain and Mr D Kain without the prior written agreement of the applicant or court order;
(c) be and are hereby restrained from taking any step with respect to the restructuring, amendment or modification of the Kain Group entities and the existing entitlements of beneficiaries, including but not limited to changes of control, shareholdings or beneficial entitlements of any kind without the prior written consent of the applicant or court order.
5.
Paragraph 4 of the applicant’s 12 May 2020 application in a case for a part property settlement is dismissed.
6.
On or before 12pm on 21 August 2020 the parties must bring in a minute setting out a timetable for pleadings.
7.
Any application for costs must be filed and served on or before 4pm on 21 August 2020, returnable before me.
8.
This proceeding is forthwith transferred from the docket of McEvoy J to my docket.
Note: The form of the order is subject to the entry of the order in the Court’s records.