Kalinec and Kalinec and Anor - [2020] FCCA 1767

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALINEC & KALINEC & ANOR

[2020] FCCA 1767

Catchwords:
FAMILY LAW – Property – interim proceedings – where the parties do not have values for items of the property pool – where the parties seek injunctions – where the injunctions are necessary to ensure assets remain for final hearing – where injunctions granted – where issues between respondent and second respondent deemed a separate decision on question – where separate decision set for final hearing.

FAMILY LAW – Evidence – interim proceedings – where documents sought to be tendered – where documents objected to as being illegally obtained – where there is no evidence that documents have been illegally obtained – whether documents are hearsay documents – where source of documents known – documents received into evidence.

Legislation:

Crimes Act 1900 (NSW), s.308H

Criminal Code Act 1995 (Cth), s.478.1

Evidence Act 1995 (Cth), ss.75, 59, 138, 142

Family Law Act 1975 (Cth), ss.69ZR, 79, 114

Federal Circuit Court Rules 2001 (Cth), pt 17

Cases cited:

Blueseas Investments Proprietary Limited & Mitchell and Ors [1999] FamCA 745

Cirillo & Citicorp Australia Limited [2004] SASC 293

Reid & Brett [2005] VSC 18

M & DB [2006] FamCA 1380

Suell & Suell(Re-Opening) [2009] FamCA 55

Eastman & Eastman & Anor [2015] FamCA 808

Applicant:

MS KALINEC

First Respondent:

MR KALINEC

Second Respondent:

MS B KALINEC

File Number:

SYC 5407 of 2018

Judgment of:

Judge Morley

Hearing date:

30 October 2019

Date of Last Submission:

20 May 2020

Delivered at:

Sydney

Delivered on:

5 August 2020

REPRESENTATION

Counsel for the Applicant:

Dr McConaghy

Solicitors for the Applicant:

AJB Stevens Lawyers

Counsel for the First Respondent:

Mr Ginges

Solicitors for the First Respondent:

Avondale Lawyers

Counsel for the Second Respondent:

Mr Bolger

Solicitors for the Second Respondent:

Chatswood Law

ORDERS

PENDING FURTHER ORDERS, THE COURT ORDERS:

That the Application in a Case filed by Ms Kalinec (‘the Applicant Wife’) on 29 April 2020 and the Response to Application in a Case filed by Mr Kalinec (‘the Respondent Husband’) on 15 May 2020 are dismissed.
That the Respondent Husband is restrained from entering into any agreement by way of grant of put and/or call option, selling, mortgaging, assigning, or further encumbering the real property known as C Street, Suburb D in the State of New South Wales being Lot ... in Deposited Plan ... (‘the C Street, Suburb D property’) except with the written consent of the wife.
That the Respondent Husband is restrained from entering into any agreement by way of grant of put and/or call option, selling, mortgaging, assigning, or further encumbering the real property known as E Street, Town F in the State of New South Wales being Lot ... in Deposited Plan ... (‘the E Street, Town F property’) except with the written consent of the wife.
That each of the Respondent Husband and the Applicant Wife as directors of G Pty Ltd as trustee of the G Pty Ltd Superannuation Fund are restrained from…

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.

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Details

Case: [2020] FCCA 1767
Decision Date: 5 August 2020

CaseChat Overview and Summary

In the Family Court of Australia, Judge Morley considered applications by the Applicant Wife and Respondent Husband concerning property division and related injunctive relief. The dispute arose in the context of interim proceedings where the parties had not yet established definitive values for all items within the property pool. The primary objective of the applications was to ensure the preservation of assets pending the final hearing of the proceedings.

The court was required to determine several legal issues. These included whether to grant injunctions to restrain the disposition or encumbrance of various assets, including real properties and corporate interests, to preserve them for the final property settlement. Additionally, the court had to consider the admissibility of certain documents that were objected to on the grounds of being illegally obtained and hearsay, and whether to proceed with a separate decision on questions arising between the respondent husband and a second respondent.

Judge Morley reasoned that the injunctions sought were necessary to ensure that assets remained available for division at the final hearing, particularly given the lack of agreed valuations. The court found no evidence to support the claim that the documents tendered were illegally obtained, and as the source of the documents was known, they were admitted into evidence despite hearsay objections. The court also determined that issues between the respondent husband and the second respondent warranted a separate decision, which would be set for the final hearing. The court made extensive orders, including restraining the respondent husband from dealing with specified real properties, corporate interests, and bank accounts, and also made orders regarding the occupation of a property and the return of items from a safe custody box.

Orders

Orders of the court

PENDING FURTHER ORDERS, THE COURT ORDERS:

That the Application in a Case filed by Ms Kalinec (‘the Applicant Wife’) on 29 April 2020 and the Response to Application in a Case filed by Mr Kalinec (‘the Respondent Husband’) on 15 May 2020 are dismissed.

That the Respondent Husband is restrained from entering into any agreement by way of grant of put and/or call option, selling, mortgaging, assigning, or further encumbering the real property known as C Street, Suburb D in the State of New South Wales being Lot ... in Deposited Plan ... (‘the C Street, Suburb D property’) except with the written consent of the wife.

That the Respondent Husband is restrained from entering into any agreement by way of grant of put and/or call option, selling, mortgaging, assigning, or further encumbering the real property known as E Street, Town F in the State of New South Wales being Lot ... in Deposited Plan ... (‘the E Street, Town F property’) except with the written consent of the wife.

That each of the Respondent Husband and the Applicant Wife as directors of G Pty Ltd as trustee of the G Pty Ltd Superannuation Fund are restrained from selling, mortgaging, assigning, or further encumbering the real property known as H Street, Town J in the State of New South Wales being Lot ... in Strata Plan ... (‘the H Street, Town J property’) or any business operated from the H Street, Town J property.

That the Respondent Husband is restrained from altering the shareholding or the officeholders in either of the corporations K Pty Ltd or L Pty Ltd, and from assigning or encumbering his shareholding or interest of any nature in either of those corporations.

That the Respondent Husband is restrained from dealing with, disposing of, or in any manner encumbering the assets of either of the corporations K Pty Ltd or L Pty Ltd otherwise than in the ordinary course of business.

That the Respondent Husband is restrained from drawing down on the Westpac Equity Access Loan – Plan 2 account in his name with BSB ...4 and account number ...63 (secured by registered mortgage on the E Street, Town F property) so as to increase the debit balance of that account to $520,000.00.

That the Respondent Husband is restrained from drawing down on the M Bank account in his name with BSB ...5 account number ...30 (secured by registered mortgage on the C Street, Suburb D property) so as to increase the debit balance of that account to $1,030,000.00.

That the Respondent Husband is restrained from drawing down on any bank accounts other than those referred to in orders (7) and (8) herein, including loan accounts, that he can operate, whether in his sole name or in his name jointly with any other person, persons, entity or entities other than for normal day to day living expenses and required loan account payments.

10.

That the Respondent Husband is restrained from drawing down on any bank accounts in the name of either of the corporations K Pty Ltd or L Pty Ltd, or in the name of the deregistered corporation N Pty Ltd, in each case other than in the normal course of business or so as to apply a capital sum not exceeding $700,000.00 towards the repayment of the loan account with O Bank with facility number ...93 and account number ...85 that expired 27 February 2020 and which must be repaid by 15 August 2020.

11.

That each of the Respondent Husband and the Applicant Wife is restrained from depositing rental income received in relation to the H Street, Town J property into any account other than the account operated by G Pty Ltd as trustee of the G Pty Ltd Superannuation Fund.

12.

That the Respondent Husband have sole occupation of the C Street, Suburb D property as between the Respondent Husband and the Applicant Wife and in that regard the Applicant Wife is restrained from entering the C Street, Suburb D property without the written and signed permission of the Respondent Husband.

13.

That within 14 days the Applicant Wife return to the Respondent Husband through medium of one of their adult children the contents of the safe custody box removed by the Applicant Wife from the C Street, Suburb D property, being the contents thereof as they were when that safe custody box was first opened by or for the applicant wife following its said removal.

14.

That the Application in a Case filed by the Applicant Wife on 4 February 2019 and the Response to Application in a Case filed by the Respondent Husband on 18 September 2019 are otherwise dismissed.

15.

That the Application in a Case filed by the Respondent Husband on 5 March 2019 and the Response to Application in a Case filed by the Applicant Wife on 17 June 2019 are otherwise dismissed.

16.

That the application for interim orders in the Response filed by the Second Respondent on 20 September 2019 is dismissed EXCEPT as to orders (4.4) and (4.5) of order (4) sought therein.

17.

That pursuant to rule 17.06 of the Family Law Rules 2004 (Cth), the Applicant Wife file and serve an Undertaking as to Damages by no later than 4:00PM on 19 August 2020 AND IN THE EVENT that the Applicant Wife fails to comply with this order then orders 2 to 11 inclusive shall lapse at 4.00PM on 19 August 2020.

18.

That by no later than 4:00PM on 19August 2020, the Applicant Wife file and serve any written submissions in relation to the competing applications for costs of these interlocutory proceedings.

19.

That by no later than 4:00PM on 2 September 2020, the Respondent Husband file and serve any written submissions in relation to the competing applications for costs of these interlocutory proceedings.

20.

That by no later than 4:00PM on 16 September 2020, the Applicant Wife file and serve any written submissions in reply to the Respondent Husband’s written submissions in relation to the competing applications for costs of these interlocutory proceedings.

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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