Keach and Keach & Anor (No 2)
[2009] FamCA 1374
•21 September 2009
FAMILY COURT OF AUSTRALIA
| KEACH & KEACH AND ANOR (NO. 2) | [2009] FamCA 1374 |
| FAMILY LAW – PROPERTY SETTLEMENT – Injunctions imposed against husband to dispose of property without written consent of wife FAMILY LAW – PROPERTY SETTLEMENT – Application of second respondent for adjournment dismissed FAMILY LAW – SUBPOENAS – Leave for all parties and legal representatives to inspect and copy documents produced pursuant to subpoenas |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Keach |
| FIRST RESPONDENT: | Ms Keach |
| SECOND RESPONDENT: | J Pty Ltd |
| FILE NUMBER: | SYF | 2181 | of | 2006 |
| DATE DELIVERED: | 21 September 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 21 September 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr North SC With Mr Kearney |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Kelly |
| COUNSEL FOR THE SECOND RESONDENT | Mr Maiden SC With Mr Emmett |
| SOLICITOR FOR THE SECOND RESPONDENT | Esplins Solicitors |
Orders
ORDER BY CONSENT
That pending further order, the husband be restrained and an injunction is hereby granted restraining him from transferring, disposing of, assigning, alienating or mortgaging or otherwise dealing with any and all ordinary shares held by him in N Limited without the prior written consent of the wife or an order of this Court.
That pending further order, the husband be restrained and an injunction is hereby granted restraining him from doing any act or thing or authorising any person to do any act or thing to cause the withdrawal of any monies held by Karras Partners Lawyers on behalf of the husband without the prior written consent of the wife or an order of this Court.
That pending further order, the husband be restrained and an injunction is hereby granted restraining him from doing any act or thing or authorising any person to do any act or thing to cause any monies held in any account in his name or on his behalf being monies received by the husband from the sale by him of shares in N Limited from 1 January 2009 to date to be dispersed, transferred or withdrawn without the prior written consent of the wife or an order of this Court.
FURTHER ORDER
That the oral application by the second respondent for an adjournment be dismissed.
That leave is granted to all parties and their legal representatives to inspect and copy the documents produced pursuant to the subpoenas to Esplins, J Pty Ltd, and W Accountants.
That the husband have leave to file and serve his affidavit in reply.
That the wife have leave to issue a subpoena to the Managing Partner Elrington Boardman Allport to produce documents, such subpoena to be returnable at 12:00pm on 22 September 2009.
IT IS NOTED that publication of this judgment under the pseudonym Keach & Keach and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 2181 of 2006
| MR KEACH |
Applicant
And
| MS KEACH |
1st Respondent
and
| J PTY LTD |
2nd Respondent
EX TEMPORE REASONS
In this matter I have before me, in effect, an application to adjourn the proceedings by the second respondent on the basis of the suggested need for either a statement of claim and/or particulars of claim to be presented as against the second respondent”.
It is common ground that there have been two formal applications for particulars in these proceedings made by the second respondent; the first being on 18 November 2008 and the second being on 5 May 2009. It is also common ground that the court declined to make any order on those applications.
There has now been a further written request for particulars by letter dated 26 August 2009 as a prelude to this current application. As Mr Maiden SC for the second respondent points out, there has been no discrete pleadings or even discrete particulars in relation to the wife’s claim against the second respondent and it is said that without that the second respondent does not know what case has to be met, and until and unless that is provided, the case insofar as it relates to the second respondent should not proceed. The effect of that would be that this case cannot proceed at all because from my reading of the documents to date, a significant issue in this case is the claim that is made by the wife against the second respondent.
There is an outline of argument dated 18 September 2009 provided on behalf of the second respondent and which raises this issue. Various authorities are referred to. I note that they are primarily Federal Court authorities and there is reference – for what reason I frankly do not quite know – to the Federal Court Rules which, of course, have no application in this court. Importantly though, there is also reference to a relatively recent case of B Pty Ltd & K & Anor (2008) 219 FLR 107 where the Full Court made an observation about the need for particularity where there is a raising of issues of law, equity or statute, and that is obviously an authority on which the second respondent relies.
The claim, in general terms, is that there is a sham in relation to the trust referred to in the documents and readily understood as the Junior Trust. The second respondent is the trustee of that particular trust and the husband is a discretionary beneficiary of that trust.
As I understand it, the second respondent was joined in about November 2008 and this case was set for trial at this time in about April 2009. I note as well, and relevant to the timing of the previous applications and, of course, this application, is that the affidavit of evidence-in-chief of the wife, who is the applicant in relation to the section 79 proceedings, was filed on 18 March 2009.
Thus, Watts J who heard the application on 5 May 2009 had before him that affidavit setting out the factual basis on which the wife makes her claim, and his Honour was aware of the orders that the wife seeks and specifically directly against the second respondent. Her most recent response was filed on 3 September 2009. That was an amended response. The orders that are sought directly against the second respondent are set out in paragraph 13 of that amended response, and that needs to be read in the context of paragraph 12 as well.
It is common ground, and it is clear from the documents, that they are orders that have been sought for some time by the wife and there is nothing new in relation to that aspect of the matter which would found or justify an application being made in the terms that has been made today.
The other document to perhaps mention in the context of this issue is that there is an extensive case outline which has been filed on behalf of the wife. That was dated 17 September 2009 and sets out an extensive factual chronology in relation to the property settlement issues including the claim against the second respondent and also, as it must, sets out an outline of argument which encompasses the claim in respect of the Junior Trust and, in particular, in paragraphs 3, 4, 5, 6, 7 and 8 of this document.
Mr Maiden SC makes the point and Mr North SC did not say otherwise - that in paragraph 8 there is mention, for the first time, of section 85A of the Family Law Act, and that is clearly a new issue. However, what I do not accept is that there is anything else that is new before this court compared with, for example, as at 5 May 2009 when the second of the two applications was dismissed. I should, perhaps, say the outline, of course, is new but, as is clear from any reading of that document, it encompasses the relevant factual background and history in this matter taken from the affidavits on which the wife relies for the purposes of her claim and adds, of course, the outline and the argument.
Importantly I accept Mr North’s basic submission that the legal and factual contentions on behalf of the wife have been known for some time, and with that knowledge on 5 May 2009, an application seeking a statement of claim and/or particulars was dismissed.
I am not entirely sure then on what basis the application is now made for a third time. I would have thought that if it is suggested as it indeed is in the second respondent’s outline of argument that his Honour made an error of law then where is the appeal? What has happened is that nothing is done and then on 26 August 2009 a letter is sent and on the morning of the trial a formal application is made for an adjournment seeking those particulars.
But, putting that aside, in my view, apart from the s 85A application which is new I can see no basis whatsoever for the application that is made today or the need to adjourn, and in any event the claim under s 85A cannot provide that basis. I agree entirely with Mr North’s submission that, with the documentation that has been provided, the affidavit of evidence-in-chief, and the other affidavits on which the wife relies all brought together and explained and distilled in the extensive outline of case, provides the second respondent with the legal and factual basis for the claim made by the wife in respect of the second respondent. Thus the application should be dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland on 21 September 2009.
Associate