KRUEGER & KRUEGER
[2010] FMCAfam 466
•30 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KRUEGER & KRUEGER | [2010] FMCAfam 466 |
| FAMILY LAW – Property – injunction – Interim orders. |
| Family Law Act 1975 (Cth) |
| Applicant: | MR KRUEGER |
| Respondent: | MS KRUEGER |
| File Number: | SYC 863 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 April 2010 |
| Date of Last Submission: | 30 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Johnston |
| Solicitors for the Applicant: | Swaab Attorneys |
| Counsel for the Respondent: | Mr. Dura |
| Solicitors for the Respondent: | Anderson Lawyers |
ORDERS
The Applicant is granted leave to re-open his case for interim orders and to introduce into evidence the evidence that is contained in his two additional affidavits sworn 14 April 2010 and 27 April 2010.
UNTIL FURTHER ORDER the Respondent is restrained from interfering with the day-to-day operations of the company [Z] Pty Limited, including but not limited to communicating with:
(a)Company staff;
(b)Clients and potential clients of the said company;
(c)Creditors and debtors of the company;
(d)Suppliers or potential suppliers of the company;
(e)All sub-contractors of the company; and
(f)All persons, corporations and entities that provide service for the company.
Within three (3) days of the date of these orders the Respondent is to deliver to the Applicant the following:
(a)The keys to the premises of the company at Property W;
(b)The swipe card to the company premises; and
(c)The remote control to the external gate of the company premises;
and that in order to give effect to these orders the Respondent is to deliver those items to her solicitor and that she instruct her solicitor to send those items immediately to the solicitor for the Applicant.
UNTIL FURTHER ORDER the Respondent be restrained from operating any banking account or facility of the company including its St George Bank Visa Card account, the trading account of the company, the [B] account and the home loan mortgage and re-draw facility of the parties.
That the Respondent within seven (7) days deliver to the Applicant all cheque books and copies of all hard drives of the company in her possession custody or control and that in order to give effect to these orders the Respondent deliver those items to her solicitor and that she instruct her solicitor to send them immediately to the solicitor for the Applicant.
UNTIL FURTHER ORDER:
(a)The Respondent be restrained from entering the premises at Property W within the prior written consent of the Applicant.
(b)The Applicant provide to the Respondent by sending to her electronically to an address provided by the Respondent by 4:00pm on the last working day of each month, copies of the following:
(i)Bank statements for the past month in relation to the company and [B].
(ii)Cheque butts for the past month in relation to the company and [B].
(iii)Invoices from suppliers for the past month.
(iv)Wage reconciliations for the past months.
(v)Business activity statements in relation to the company if lodged during the past month.
(c)The Applicant cause to be met the repayments to BMW Finance in relation to the Porsche motor vehicle and the BMW motor vehicle as and when they fall due.
(d)The Applicant cause to be met as and when they fall due from the redraw facility at St George Bank, all payments of the mortgage secured against the home, the home and contents insurance and the council rates relating to the home.
(e)The Applicant cause the company to pay to the Respondent, $700.00 gross per week by way of wages.
Within three (3) days of the making of this order, the Respondent must cause to be returned to the company all copies of the back-up computer hard drive of the company, [Z] Pty Ltd, and that in order to give effect to these orders the Respondent must deliver those copies to her solicitor and instruct her solicitor to send those items immediately to the solicitor for the Applicant.
UNTIL FURTHER ORDER, the Respondent is restrained from copying, downloading, sending or in any other way using or dealing with any information obtained from the back-up hard drives that the Respondent removed from the premises of the Company on 14 April 2010 or on any other date or occasion.
The Respondent is to pay the Applicant’s costs as assessed or taxed.
The parties are to attend a conciliation conference with a Registrar of the Court at 2:15 pm on Monday 31 May 2010 and are to comply with Rule 24.03 relating to full and frank disclosure of their financial circumstances for the purpose of that conference.
The Application is adjourned to Monday 7 June 2010 at 11:30am for further mention before Federal Magistrate Scarlett in Court 7A, level 7, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.
IT IS NOTED that publication of this judgment under the pseudonym Krueger & Krueger is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 863 of 2010
| MR KRUEGER |
Applicant
And
| MS KRUEGER |
Respondent
REASONS FOR JUDGMENT
In this matter, the application before the Court is for a number of interim orders in favour of the Applicant Husband and against the Respondent Wife. A number of these orders are orders by way of injunction.
The brief history of the matter is that the parties were married [in] 1991 and separated on 20th July 2008. They are not divorced. After the parties were married, the Applicant commenced a business which was called [Z]. His evidence is that he worked full-time in the business, but the Wife worked elsewhere.
On 29th June 1995, the Company, [Z] Proprietary Limited was incorporated. The Applicant and the Respondent were and are directors and sole shareholders. The Wife commenced to work for the Company the following year. They incorporated a further company, [B] Pty Ltd on 27th March 2001.
The evidence is that the Husband worked full-time with the company, and the Wife worked on a part-time basis. After separation, the Husband continued to work at the Company on a full-time basis. The Wife did not attend the premises but mainly undertook her employment from home and accessed the company computer to do so.
She was paid a wage of $605.00 per week and was provided with a BMW motor car. The Wife recommenced attending the Company premises on one day a week in March 2009. There was a conference in September of that year in which, with the assistance of their lawyers, the parties reached an agreement which would involve the Wife attending Company premises on two days a week, and she was to advise the Husband when she was attending so that he could remain away. However, this agreement did not run smoothly.
The Husband claimed the Wife had a disagreement with an employee of a major client, a company called [S], and it appears that [S] decided to cease giving orders to the company. The Husband claims, however, that he resolved the situation, and [S] remained as a client. However, the affidavit evidence is that there were a number of incidents where the Husband claims the Wife went into his office and went through documents and indeed removed a cheque book. There was an incident where a motor vehicle assigned to the sales manager was written off in a motor accident and needed to be replaced.
Whilst arrangements were made for a replacement vehicle to be obtained, the Wife did not agree at the time to sign the documentation to enable the replacement motor vehicle to be obtained. She subsequently agreed to do so. The Husband claims that on
26th February 2010, the wife wrongly removed an amount of $20,000.00 from the bank account of [B] Pty Ltd. A settlement conference was arranged for 9th March 2010 but did not take place. On 18th March 2010, the Husband sought interim orders and I heard submissions on that day and reserved my decision.
However, the matter did not remain quiescent over the intervening period of time. The Husband complained that the Wife was attending the premises on more and more occasions, and involved other employees in going through documents, searching through correspondence and emails. One of them was a Ms T. The Wife instructed one of the employees, one Mr R, presumably related to the Husband, to take leave for a week as there were no duties for him. On 6th April 2010, the Wife informed another employee, one Mr K, that he would not be paid for the time he spent cleaning a company motor vehicle.
The Husband claims that the Wife, on 13th April 2010, withdrew a further $31,200.00 from various accounts, being $25,000.00 from the Company trading account, $1,200.00 from the home loan account and $5,000.00 from the [B] account. On 15th April 2010, the Wife advised the Husband that she had taken a copy of the hard drive of the Company computer.
The Husband claims that on 16th April 2010, as a result of moneys taken from the Company account, he had a choice between paying a supplier, a Chinese company, or paying the employees’ wages. He elected to pay the wages, and sent an email to the supplier explaining that a problem had occurred and assuring them that the money would be paid shortly. By this stage, the Husband’s legal advisers had requested that the matter be brought back to Court to reopen the proceedings.
The application was listed before me on 21st April 2010. The Applicant and his solicitor and counsel appeared as eventually did the Wife. Her solicitor, Mr Aspite, attended. An adjournment was sought because neither of the counsel who had been retained by the Wife, were available to appear that day.
After some negotiations and discussions, I indicated that I would consider an adjournment either on the basis of certain undertakings by the Wife or, failing that, I would make some injunctive orders, and I listed the matter for hearing before me today. The Wife agreed to enter into certain written undertakings which were done that day.
What was not known at the time was that on the morning of 21st April 2010, prior to the matter coming to Court, the Wife had withdrawn an amount of $15,000.00 from a Company bank account, describing it as a wage pay-back. The Applicant Husband complained that he did not authorise that transaction nor was he aware of it. The hearing before me on 21st April 2010concluded shortly before lunch time and on that same day the Wife re-deposited that sum of money into the company bank account.
The Husband emailed the Wife the following day advising that her password has been changed. On 23rd April 2010, a Mr M, who had a contract to supply IT services, indicated that he no longer wished to do so.
On the previous occasion when the matter had been before the Court, a copy of a letter addressed to both the Applicant and the Respondent was produced. That letter was from Ms T who describes her position as customer service manager. She stated that she was writing the letter to make them both aware of serious matters occurring at [Z], particularly over the last few months that were having a detrimental effect on working conditions presumably in general, and her health in particular.
She then goes on over three pages to describe what she called “unprovoked attacks” on her, and puts the blame squarely on both parties, pointing out that while she had, in her view, been a loyal employee over the previous four years, she said:
However, due to your unfortunate personal litigations, I’m being falsely accused of having preferences towards one party and in turn being unjustly called a “liar”, as well as being verbally attacked and bullied by the members of staff.
She went on to describe various matters and it finished by saying, inter alia:
However, due to the constant harassment, having to justifying myself, the false accusations, the ignoring of my requests for help and treatment of other staff towards me, is having a detrimental effect on my health, sleepless nights worrying about the work environment, high blood pressure, aggravated asthma which has noticeably worsened over the last few months and a fear of coming into work for the next attack.
I describe that letter to the parties from Ms T as a cri de coeur, a cry from the heart, and it is perhaps hardly surprising that annexed to the affidavit of the Applicant which was filed on 28th April 2010, is a copy of a WorkCover medical certificate relating to Ms T advising that she is unfit for work from 23rd April to 9th May 2010. The diagnosis of:
Very upset, traumatised and stressed – crying. In my opinion, the worker’s employment is a substantial contributing factor to this injury.
The medical practitioner prescribed Ms T to have two weeks rest from work and to have counselling, amongst other things.
The Wife filed an affidavit in reply on 29th April 2010 in which she expresses the view that the situation in the Company is indeed in a bad way and that her actions as a director have been directed towards preserving the company and investigating what she considers to be significant losses. She annexes various emails which again indicate what appears to me to be a poisonous atmosphere at the Company. Annexed to her affidavit is a copy of an email from the Respondent addressed to the Applicant with a copy to the hapless Ms T, headed, “Mr R taking time off”, dated Tuesday 6 April 2010. She says:
I have been advised of the complaints and events between your brothers Mr E and Mr K against certain staff members.
Despite the fact that you have been approached either by email or telephone, you have failed to act professionally and as one of the Directors of the company.
She goes on to criticise the Applicant for:
Your failure to be involved in your absence from the company has left me no other choice but to address these matters as best to the Company’s benefit as possible.
She then goes on to refer to another of the Applicant’s brothers who also works in the company, one Mr R, saying:
Your brother Mr R has also admitted that Mr E has a swipe card for your office, despite your allegations that nobody has access to your office except you.
Your brother Mr R has been advised that we require him to take the rest of the week off as annual leave as we are not very busy in the office or with print jobs and this is the job he’s been employed to do. I believe this is to the benefit of the company and I have already spoken to [name omitted] and he will be looking after
Mr R’s job until he gets back. If we are still not too busy next week, I may even ask Mr R to take the next week off also.
That same day, the Respondent sent an email to the Applicant with copies both to Ms T and to Mr E headed, “Pay for Mr K”, saying:
I need to let you know that I will NOT accept Mr K being paid for today as the only thing he’s doing at work is cleaning one of the trucks which is not part of a duty that needs to be done during work hour, especially when there is a whole warehouse of chores to be done.
One might comment as to why cleaning a company truck is something that should be done in an employee’s personal time but that is not a matter I propose to pursue. I have referred to the resignation of the company of Mr M, the IT provider. His email is annexure D to
Ms Krueger’s affidavit. He sent the email addressed to both the Applicant, with a copy to the Respondent. Whilst the email begins chattily enough:
Hi [Mr & Ms Krueger – (first names omitted)].
It goes on to say:
Due to the conflict of interest as well as total arrogance by current director, Ms Krueger, I am withdrawing my IT services for [Z] effective immediately. I don’t want to be threatened, intimidated and called a liar just because I’m doing a job for your company.
Surprisingly enough, he finishes off that letter with the salutation:
Kind regards
[Mr M – (first name omitted)].
These matters:
a)The withdrawals of money which the Applicant claims were without his knowledge or approval.
b)The Respondent taking matters into her own hands about the running of the company,
to my mind seemed to add to the dysfunctional atmosphere in the Company leading to a situation which I consider to be untenable and which Mr Johnston of counsel has described as “intolerable”.
Mr Dura of counsel, who appears for the Respondent, has described her as being, of course, a director having certain rights as a director. He has said that she has done nothing inappropriate and that the Applicant has attempted to exclude the Respondent from the company. As a co-director, he has said that she was there to co-manage the company. However, it is clear that whilst the Husband and Wife are both directors that they are certainly not pulling their company in the same direction. If anything, it appears that they are pulling the company apart.
Clearly, the situation involving Ms T and others indicates a serious loss of morale and a stress that is being imposed on the workers which cannot be to the Company’s benefit.
The unexplained and allegedly unauthorised withdrawals of money appear to be creating serious difficulty. This is not to say that the Applicant emerges as entirely blameless, but I am firmly of the view that the parties cannot work together within the company or beyond the Company premises.
The concern is that the warfare between them will bring the Company down around them, and the situation cannot be allowed to continue.
Clearly, this will not be the end of litigation between the parties; far from it, I fear. However, there needs to be some peace in the workplace so that the company and its employees can continue to function. If the company fails financially, it will be to the benefit of neither the Applicant nor the Respondent.
Clearly, as Mr Dura of counsel quite frankly conceded, the Respondent has taken matters into her own hands. If there is one particular matter that causes the Court concern, it is the events of 21st April 2010, or the day that the matter was last before the Court when, before the Court hearing, the Wife withdrew a sum of $15,000.00 and later in the day
re-deposited that amount. It is the view of the Applicant’s lawyers that the Wife’s solicitors’ failure to advise the Court or them of the Wife’s actions is no indication of wrong-doing on his part; quite the reverse, in fact.
They are of the view that the Court should conclude that the Wife deliberately did not tell her lawyer or the Court that she had withdrawn this amount of money. I am of a belief that that is so and indeed if there had been a secret transaction in which the solicitor had been involved, which was not made known to either the Applicant’s legal advisors or the Court, I would have taken a very serious view of it indeed.
However, I am also of the view that the Wife’s solicitor was innocent in this regard. That circumstance alone would, to my mind, amount to a strong reason for the Court to impose injunctive orders. It is perhaps the final straw, although I note from the email from Mr M that the withdrawal of his IT services is a matter that he places fairly and squarely in the lap of the respondent wife.
It is clear that this situation cannot continue. The only way to preserve the situation is for me to make a number of interim orders by way of injunctive orders, and I propose to do so.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 13 May 2010
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