Lampros and Anor & Lampros and Anor

[2012] FamCA 415

FAMILY COURT OF AUSTRALIA

LAMPROS AND ANRO & LAMPROS AND ANOR [2012] FamCA 415

FAMILY LAW- INJUNCTIONS - Interim injunctions - Rights of a third party – preservation of property – where the wife seeks leave pursuant to s 44(3) to commence proceedings for property division under s 79 – whether an injunction can be granted against a third party company – where the husband is the sole director of the company – where the husband is neither the sole nor majority shareholder– where the husband and wife have operated the company with apparent disregard for the majority shareholder’s interest – where the husband and wife have continued to be financially intertwined after divorce – where both the husband and the wife have been involved in the company – where the wife had a managerial role in the company - where the wife starts her own publishing company to operate one of the original company’s publications – whether the wife’s newly created company has standing - whether the injunction sought relates to the property of a party to the marriage – whether the injunction sought arises out of the marital relationship

Family Law Act 1975 (Cth) s 44, s 74, s 79, s 90AE, s 90AF, s 114, s 114AB

Aldred and Aldred (1984) FLC 91-510
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
H & H [2006] FamCA 167

1st APPLICANT: Ms Lampros

2nd APPLICANT: Z Pty Ltd

1st RESPONDENT: Mr Lampros

2nd RESPONDENT: Y Pty Ltd

FILE NUMBER: BRC 9301 of 2007

DATE DELIVERED: 18 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 14 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Blaxland

SOLICITOR FOR THE APPLICANTS: Watson & Quinn

COUNSEL FOR THE RESPONDENTS: Ms Sweetapple

SOLICITOR FOR THE RESPONDENTS: Schultz Toomey O'Brien

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

(1)The wife forthwith do all things necessary, including signing any documents necessary to be signed, to ensure that the publication of “Title A” magazine is undertaken by Y Pty Ltd and that all proprietary rights to the publication of that magazine remain the rights of Y Pty Ltd.

(2)The husband, including, in particular, in his capacity as the sole director of Y Pty Ltd, forthwith restore the wife to her previous position of employment with Y Pty Ltd in connection with the publication of “Title A” magazine and is restrained from interfering with her in the proper exercise of her duties in that role and he is to take all steps necessary to ensure that she is paid a wage of $600 net per week for the services that she performs for the company.

(3)Both the husband and the wife are restrained from drawing any funds from the accounts of Y Pty Ltd for the payment of personal expenses and shall, otherwise than as already provided for in these orders, only draw funds from the accounts of Y Pty Ltd for payment of its reasonable expenses incurred in the ordinary course of its business.

(4)The husband is restrained from resigning as a director of Y Pty Ltd or from taking any steps to cause any other director to be appointed as a director of that company.

(5)The husband shall pay the monthly loan repayments to Esanda Finance in respect of the finance debt owing in respect of the Toyota motor car in his possession.

IT IS FURTHER ORDERED THAT

(6)The wife’s application pursuant to s 44(3) of the Act for leave to commence proceedings for just and equitable property division and the further hearing of the competing applications for injunctive relief shall be adjourned to the duty list before Justice Forrest at 10.00 am on Monday, 18 June 2012.

(7)Both the husband and the wife shall each, through their solicitors, take all steps necessary so as to cause Mr H to be notified of these proceedings, provided with a copy of the sealed copy of these Orders and notice of the further hearing of the proceedings on 18 June 2012.

(8)The wife shall file and serve any amended application and further affidavit evidence on or before Friday, 1 June 2012.

(9)Both parties’ costs of and incidental to the application are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lampros and Anor & Lampros and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9301  of 2007

Ms Lampros and Z Pty Ltd 

Applicants

And

Mr Lampros and Y Pty Ltd 

Respondents

REASONS FOR JUDGMENT

Introduction  

1.On 2 April 2012, an Initiating Application was filed in this Court by Ms Lampros. On its face, the Initiating Application purports to be also filed by a company, Z Pty Ltd, as an applicant. Ms Lampros (“the wife”) is the sole shareholder and director of that company. Written submissions made by counsel who appeared at the hearing of the application for interim relief on 14 May 2012 also purported to be made on behalf of Ms Lampros and the company, Z Pty Ltd.

2.The Initiating Application named two respondents. They are Mr Lampros (“the husband”) and a company, Y Pty Ltd.

3.The interim relief sought by the applicants was, relevantly, as follows:

1.An injunction be granted against the respondent and the respondent be restrained including in his capacity as Director of [Y Pty Ltd] ACN […], including by his or its servants and/or agents, from interfering with or preventing the applicant or her company [Z Pty Ltd] ACN […] and/or her servants and/or agents from doing all things necessary to obtain business for, promote, publish and circulate the magazine known as [Title A] and in particular, without limiting the generality of the foregoing, he shall not approach or communicate with contributors to or advertisers in the aforesaid magazine.

2.A declaration that the applicant and/or her company [Z Pty Ltd] be entitled to publish and take all revenue arising from the publication and/or sale of the magazine known as [Title A] subject to her and the Company keeping proper accounts and financial records.

3.The applicant be required to keep and make available when required proper accounts and financial records with respect to the publication of [Title A].

4.The applicant do not dispose of or encumber the business that is [Title A] save to the extent it shall be proper and the applicant be paid a reasonable salary and that the ordinary and reasonable expenses of publishing the magazine be incurred and paid in the ordinary course of business.

5.The respondent continue to pay the loan repayments for the Toyota […] in the possession of the Respondent to Esanda Finance for the loan in relation to the motor vehicle currently registered in the name of the Applicant.

4.The husband and the company, Y Pty Ltd, responded, seeking a dismissal of the application or, alternatively, different injunctive relief against the wife.

Some Relevant Background Facts

5.The wife and the husband were married in May 1996. They separated in or about June 2005. Their marriage was dissolved by decree in October 2007. There are two children who were born of that marriage. They currently reside primarily with the wife and spend time with their father from time to time.

6.No orders for property division pursuant to s 79 of the Family Law Act 1975 (“the Act”) have ever been made. No orders for spousal maintenance pursuant to s 74 of the Act have ever been made.

7.The named second respondent company, Y Pty Ltd, was incorporated in January 2003. It is not in dispute that the husband is the sole director of that company. He asserts that he has been the sole director of that company since its incorporation. The husband’s evidence is that he currently holds 48 ordinary shares in Y Pty Ltd and that a third person, Mr H, holds 49 ordinary shares.

8.Y Pty Ltd has, since its incorporation, been operating a business of publishing magazines targeting the niche leisure market of Activity A and Activity E enthusiasts.

9.In her first affidavit filed, the wife asserted that the husband was the only shareholder of Y Pty Ltd. She asserted that there were initially two other persons involved as “partners”, (whatever that meant), namely Mr D and Mr H.

10.The husband asserted that Mr D was initially a shareholder but was bought out by the husband two years after the company’s incorporation. He asserts that Mr H has remained the majority shareholder ever since but that he is “a silent partner”. No more evidence was given by the husband as to what that meant. No evidence was given by the husband as to Mr H’s actual involvement in the company, his receipt or non-receipt of dividends from the company, any current employment of Mr H with the company or even any recent communication with him.

11.The wife, in her second affidavit filed on the day of the interim hearing, and through her counsel, actually conceded that the husband is correct in respect of asserting that Mr H does hold 49 ordinary shares in Y Pty Ltd. Mr H’s share holding makes him, prima facie, on the evidence before me, the majority and controlling shareholder of Y Pty Ltd.

12.The wife gave further evidence that the company owes Mr H a debt in respect of his contribution some years ago of capital of in excess of $100,000. No further evidence was given about any demands by Mr H for repayment of that debt, any actual part repayment of the debt or anything else that suggests Mr H remains actively involved in pursuing the debt or in any way in the company. It appears to me, on the evidence, that the husband and the wife have, at least for some period of years, been treating Y Pty Ltd and its publishing business as their company and their business, with apparent disregard to the shareholding interest of Mr H.

13.Y Pty Ltd has been publishing two particular magazines for several years. One is ‘Title A’ and the other is ‘Title E’. 

14.There is dispute between the husband and the wife as to the exact role that each of them has played in respect of the operation of the publishing business and the management of Y Pty Ltd over the years, particularly since their separation and divorce. Interestingly though, the husband and the wife have clearly continued to be substantially financially entwined notwithstanding their separation and their divorce and they have both remained apparently intricately involved in the publishing of the magazines by Y Pty Ltd. They have both had, but in particular the wife has had, access to the bank accounts of Y Pty Ltd over the years, utilising the income generated by its publishing business operations to meet their own and family expenses.

15.The evidence is that the magazines each have an editor. They generate revenue for the company by way of sale of advertising space within the magazines as well as sale of the magazines themselves.

16.In or around 2005, Y Pty Ltd experienced some financial difficulties and was put into voluntary administration. The financial reputation of the husband, as sole director, apparently suffered and his credit rating was, apparently, downgraded such that he has not been able to enter into finance contracts in his own name since then.

17.It does not appear to be in dispute, that the wife has been, in the years since then, involved in the operation of the publishing business, and has been drawing on the income generated by that business. She asserts, and it is not a matter that appears to be seriously disputed, that her involvement has primarily been in respect of Title A magazine.

18.In 2006, the Toyota motor car in the husband’s current possession was purchased. The purchase was financed through Esanda. By agreement between the husband and wife, the wife contracted with Esanda in her sole name in respect of that financing and the car has been in the husband’s possession ever since with the finance repayments being made out of income generated by Y Pty Ltd.

19.The wife asserts that her role with Y Pty Ltd and Title A has been administrative and managerial, working with the subcontracted editor and other relevant staff. She deposes to the fact that expenses being paid out of the revenue generated by Y Pty Ltd up until February this year were:

·$770 per month in respect of financing of her Mercedes Benz motor car;

·$135 per week in respect of a NAB loan;

·$110 per week in respect of the financing of a Mitsubishi motor car that she used to possess but no longer does;

·$100 per week to GE;

·$500 per month to credit cards;

·$509 per month to Esanda for the Toyota in the husband’s possession;

·$2,000 per month for the mortgage on her home.

Annualised, that is $66,876. Calculated monthly, those expenses total $5,573.

20.The wife gives no evidence that the publishing of the magazines does not generate enough revenue to cover those expenses. Indeed, she asserts that some other expenses are even paid out of that revenue, including school fees for the children.  The husband asserts that he pays expenses for the children from income he earns in another business he operates himself.  It does not seem to be in dispute however that the publishing of the magazines generates profit for the company.

21.Importantly, in respect of the wife’s interim application, the wife asserts that she and the husband determined, late 2011, to separate the publishing of the two magazines and that she would take over publishing and ownership of the Title A magazine and the husband would take over publishing and ownership of the Title E magazine. She deposes to taking steps to give effect to that agreement earlier this year. She incorporated the company Z Pty Ltd and established her own family trust with the intent of transferring the rights to publish Title A to Z Pty Ltd as trustee for the family trust.

22.In contrast, the husband denies any such agreement. He asserts that conflict arose and continued to fester between them due to the fact that tax returns for Y Pty Ltd had not been prepared and filed for the 2007 year and all years since and that there are serious issues as to the characterisation of the expenditure made out of the company accounts as between business and personal expenditure that give rise to potential, serious taxation consequences for the parties or either of them. He asserts that the wife refused to co-operate with the accountant and him in respect of this issue and that, as sole director of Y Pty Ltd, he formally terminated the wife’s ‘employment’ with the company in February this year. The wife does not dispute that she received this notice purporting to terminate her ‘employment’ with the company.

23.From that point onwards, there is again no dispute, that the husband has taken steps to “lock” the wife out of access to the company accounts. The wife responded by taking such steps as she could to cause the publication of the Title A magazine to remain within her control, executing a formal transfer of the business name of Title A magazine to Z Pty Ltd and doing all she could to retain control of the publishing of that magazine and the receipt of the revenue it generates. In the meantime, she has not had access to Y Pty Ltd funds on a regular basis as she did until February this year.

24.The husband asserts that he has reported the fact that the wife has acted in this way to the police as fraud, given that she did not, he asserts, have authority of Y Pty Ltd to act in this way. He asserts the police are acting on his complaint.

25.The wife filed her application, seeking relief on an interim basis as she has, because, she asserts, she has been plunged into financial crisis by these events.

Some Aspects of the Application

26.The wife is clearly well outside the limitation period in respect of the commencement of proceedings for property division pursuant to s 79 or spousal maintenance pursuant to s 74. The final relief she seeks in her Initiating Application includes leave to commence s 79 property division proceedings (albeit incorrectly sought pursuant to s 44(4) as opposed to s 44(3) of the Act), as well as the substantive property division she seeks if granted leave.

27.The question of whether leave will be given to the wife to commence proceedings pursuant to s 79 (or otherwise) of the Act not having been determined yet, there are no such proceedings yet on foot and the Court is, therefore, not yet being asked to exercise jurisdiction under the property division or spousal maintenance head of power. However, the Court nevertheless is being asked to grant injunctive relief on an interim basis.

28.Firstly, the wife and a company she has incorporated and solely owns and directs, seek interim injunctive relief against the husband, including in his capacity as director of Y Pty Ltd, restraining him from interfering with or preventing her or Z Pty Ltd from running the business of publishing the magazine Title A. They seek a declaration and an injunction (or an order) that the wife be entitled to publish the magazine, pay herself a reasonable salary and to pay the ordinary expenses of publishing the magazine in the ordinary course of business.

29.In response, the husband and Y Pty Ltd seek an order that the interim application of the wife and Z Pty Ltd be dismissed or, alternatively, that injunctions be granted restraining the wife from operating herself, or through Z Pty Ltd, the magazine Title A.

The Respondent’s Submissions

30.Counsel for the respondents submitted that the Court does not have jurisdiction to make an order against Y Pty Ltd, a third party, which would have the effect of depriving the company of valuable property, particularly as another third party was the majority shareholder of the company. She relied on the well known passage from Gibb J’s judgment in Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 and also the decision of O’Ryan J in H & H [2006] FamCA 167 as authority for this proposition.

31.Counsel for the respondents went on to submit that, in any event, as no proceedings were yet “on foot” the Court has no jurisdiction to grant injunctive relief at this point in time. By this submission, counsel meant that as leave had not first been obtained to commence s 79 proceedings or s 74 maintenance proceedings, there was no jurisdiction for the granting of any interim injunctions as sought.

32.Additionally, counsel for the respondents submitted that the company, Z Pty Ltd, has no standing to invoke the injunctive jurisdiction of the Court.

33.Counsel for the Respondents went on to submit that in the event the Court determines it has jurisdiction the balance of convenience considerations favour the granting of the injunctive relief actively sought by the husband as opposed to those sought by the wife.

My Consideration of those Submissions and the Law

34.Counsel for the applicants made oral submissions that the injunctions could be granted on an interim basis pursuant to s 114(3) of the Act, notwithstanding the fact that leave pursuant to s 44(3) of the Act to commence the property division proceedings had not yet been obtained. With respect, I reject that submission.

35.Section 114(3) confers power on the Court to grant injunctive relief, interlocutory or otherwise, where the Court is “exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies”. It is, as such, a power that is ancillary to the exercise of otherwise properly exercised jurisdiction. It is not an independent source of jurisdiction. It cannot be relied upon as the source of the power to make the injunctions the applicants seek.

36.However, in the written submissions handed to the Court by counsel for the Applicants, s 114(1) of the Act is referred to as the source of power for the making of the injunctions sought.

37.Section 114(1) says, relevantly:

In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:-
…..
(e) an injunction in relation to the property of a party to the marriage.
…

38.Paragraph (e) of the definition of matrimonial cause in s4(1) says:

Proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB)

39.Only in proceedings between parties to a marriage in circumstances arising out of the marital relationship can an injunction or orders pursuant to s 114(1) be granted or made. If proceedings are determined to be validly founded on the s 114(1) jurisdiction, then s 90AF(2) (in Part VIIIAA Division 3) confers power on the Court to make an order, or grant an injunction, that:

(a)directs a third party to do a thing in relation to the property of a party to the marriage; or

(b)alters the rights, liabilities or property interests of a third party in relation to the marriage.

However, the pre-conditions in sub-sections (3) and (4) of s 90AF must be satisfied first and they include affording procedural fairness to the third party.

40.Two things immediately arise. The first is that the wife is not seeking an order or injunction against Z Pty Ltd but rather Z Pty Ltd purports to be an applicant, in its own right, seeking injunctive relief. Z Pty Ltd is clearly not a party to the marriage and in my view the proceedings must be between the parties to a marriage for the s 114(1) power to arise independently. I consider then that only a party to a marriage can apply for an order or injunction against another party to the marriage pursuant to s 114(1) or against a third party in reliance on s 90AF. I do not consider that Z Pty Ltd has the standing to make the application that it has in this case and, accordingly, dismiss the application in so far as it is made by Z Pty Ltd.

41.The second is that I respectfully do not accept counsel for the Respondent’s submission that in respect of the exercise of power pursuant to s 90AF(2), that proceedings other than s 114(1) proceedings need be on foot, before the power may be exercised. If power exists under s 114(1) to make orders or injunctions in proceedings between parties to a marriage, then power conferred by s 90AF(2) may also, in appropriate cases, be exercised in my view.

Do the injunctions and orders sought relate to the property of a party to the marriage?

42.Just as in Aldred and Aldred (1984) FLC 91-510, it appears, in this case, that the injunctions sought relate to dealings with an asset of the company Y Pty Ltd. But having regard to that which Nygh J determined in Aldred, I am of the view that the injunctions sought in this case, by both the wife and the husband, can be said to relate to the property of the husband, namely his shareholding in the company, and therefore, fall within subparagraph (f) of s 114(1). Having said that, I hasten to note also that it is well settled that the examples which are given in s 114(1)(a) to (f) are merely examples of situations which could fall within the scope of s 114(1), but it is not an exhaustive list and the use of the word “including” in the subsection clearly means that there are other situations which may arise out of the matrimonial relationship which are not covered by (a) to (f) that might still give rise to the exercise of the power.

Do the injunctions and orders sought arise out of the marriage?

43.Y Pty Ltd was incorporated well and truly before the relevant marriage ended in divorce in 2007. The husband has held his shareholdings in the company since its incorporation. The magazine Title A has been published by Y Pty Ltd from well before the parties’ divorce. The wife has been involved in the publication of the magazine and the affairs of Y Pty Ltd since before the divorce.

44.The wife has in this case, just as in the case of Aldred cited above, filed an application in which she seeks leave pursuant to s 44(3) of the Act to institute proceedings under s 79 in which she seeks property division orders that settle property in the Title A magazine on her. As I see the matter currently, as Title A is actually property of Y Pty Ltd, a third party, the wife may, if granted leave pursuant to s 44(3) ultimately have to seek to rely on s 90AE as well, if she is to ultimately have Title A transferred to her by Y Pty Ltd. I cannot otherwise see how she would achieve that, but for a finding that Y Pty Ltd is the puppet or alter ego of the husband, and, therefore, because of that finding, subject to s 79 orders or a s 114 injunction directed solely at the husband. As the evidence currently stands, the majority shareholding of the third party, Mr H, appears to make any such finding, prima facie, problematic. Certainly, I am not in a position to make any such finding at this interim stage.

45.Nevertheless, the wife’s application for final relief is, in my view, one that arises out of the marital relationship. Accordingly, I am satisfied that the injunctions sought, by both parties in this case, are ones that arise out of the marital relationship. They relate to the property of the husband in the form of his shares in the company and they relate to the financial interaction between the husband and the wife, the husband as director of the company and the wife as an employee of the company. I am, accordingly, satisfied that I have the power pursuant to s 114(1) to grant injunctions and make orders in relation to these matters as between the husband and the wife and also, consequently, if the pre-conditions are satisfied, directed at the third party, Y Pty Ltd.

46.I respectfully agree with the approach adopted by Nygh J in the case of Aldred cited above. Because the wife’s ultimate claim for final relief, if she is granted leave, will be pursuant to s 79 and, potentially, s 90AE, any interim injunctions that are granted pursuant to s 114(1), and any injunctions granted consequently pursuant to s 90AF(2), should strictly, in the first instance, be limited until the completion of the hearing of the application for leave pursuant to s 44(3) and must then be reviewed again.

47.During argument in the hearing of this interim application, counsel for the wife accepted that the application for leave pursuant to s 44(3) should be heard as soon as possible, rather than leaving it to be heard as part of a trial of the application for the final orders sought. He conceded that it should be determined as a preliminary, stand alone point. I certainly consider that to be a proper concession in this case. The wife’s application for leave pursuant to s 44(3) to commence s 79 proceedings will be set for hearing in the near future. Accordingly, consideration of the application for the injunctions sought by the husband and the wife will be done in the context of that application for leave being heard soon.

Should interim injunctions be granted?

48.The central issue in this case both now and in any proceedings for s 79 relief which are commenced in the future with the leave of the Court appears to be the ownership and control of the publication rights with respect to the Title A magazine, quite apart from any other just and equitable property division orders that may be made and any spousal maintenance orders that might be made. The wife clearly seeks that control in the short term through the interim injunctions she applies for and she seeks ownership and control of it in the long term. The husband seeks, both in his own right and in right of the company Y Pty Ltd, to retain that control and ownership both in the short term and the long term.

49.I am simply not in a position to determine at this interim stage that the wife will not get leave pursuant to s 44(3) to commence her proceedings for s 79 and, potentially, s 90AE relief ancillary thereto. On the evidence that is before me, particularly the evidence that the majority shareholding of the company Y Pty Ltd is held by a third person, prima facie, the wife’s case does not appear to be a clear cut one. However, the evidence of both parties does seem to point away from the third person, Mr H, having much interest or involvement in the affairs of the company in recent times. In any event, the proper consideration of all of the evidence about that is for another day.

50.In this Court particularly, interim injunctive relief is primarily utilised to maintain things as they are, or to restore things to as they were until they were abruptly changed to the prejudice of an interested party, to protect claims that parties have or may have to substantive relief after a final hearing.

51.I am satisfied, on the evidence, particularly all of the evidence about the wife’s involvement in the day to day operations of the publication of the Title A magazine, and the noteworthy lack of evidence about Mr H’s current involvement that there is a serious triable issue involving the ultimate disposition of the Title A publication.

52.However, I do not consider that it is at all appropriate at this interim stage to grant injunctions that allow the Title A magazine, which is a significant asset of Y Pty Ltd, that is majority owned by a third party, unrelated to the husband and the wife, to be removed from the control of the company and the company’s director.

53.I am not satisfied on the evidence that the injunctive relief sought by the wife is the proper relief in all the circumstances of this case. In my view, the proper orders and injunctions to make in this case are those that will put the parties, that is the husband, the wife and Y Pty Ltd, back in the same positions relative to each other as they were prior to matters falling asunder in February this year. Those circumstances should, so far as is possible and proper, be restored and maintained at least until the wife’s s 44(3) application is heard and determined and further consideration can be given to the question of whether the injunctions are to be continued.

54.I will make orders pursuant to s 114(1) of the Act that the wife does all things necessary, including signing any documents, to ensure that the publication of Title A magazine is undertaken by Y Pty Ltd until further order. I will make orders that require the husband, including in his capacity as the sole director of Y Pty Ltd, to restore the wife to her position of employment with Y Pty Ltd and to ensure that she is paid a proper wage for the services that she performs for that company. I am satisfied, on the evidence, that such a proper wage is such amount as will ensure the wife is receiving the net amount, after the tax on the gross amount is paid by the company, of $600 per week. My orders will restrain the husband from interfering with the wife’s employment with Y Pty Ltd and her work for that company in connection with the publication of Title A magazine until further order.

55.The wife, on the evidence, as I have already observed was drawing more than $600 per week from the company accounts. It is also clear on the evidence that is before me that there are serious issues, yet to be finalised, in respect of the division between the payment of personal expenses and the payment of legitimate business expenses. Particularly given the prima facie legitimate interests of the third party, Mr H, in this matter, in addition to the husband’s legitimate interest as the sole director and other shareholder of the company, I will make orders restraining the wife from drawing any funds from the company to pay personal expenses or any expenses that are not legitimate expenses of Y Pty Ltd payable in the ordinary course of its business. At the same time, I will place the exact same restraint on the husband.  The wife will, I expect, be unsatisfied with the extent of the restraint that places on her, however, I consider it the proper course to take in the circumstances of this case, particularly having regard to the apparent legitimate interests of third parties.

56.At the same time, I will order that the husband pay the loan repayments to Esanda in respect of the Toyota motor car in his possession and keep the wife and Y Pty Ltd indemnified in respect of that ongoing liability. That is, after all, what the husband says in evidence that he has been doing since February this year.

57.I will also make orders restraining the husband from resigning as director of Y Pty Ltd or taking any steps to appoint any other director of Y Pty Ltd until further order. As I have said, the intention of my orders is to restore matters to what they were in February, so far as is proper, and to maintain that position until the hearing of the s 44(3) application of the wife. Such orders, I believe, will do so, as far as is appropriate.

58.I consider that the orders I will make are all able to be made pursuant to s 114(1) as they are actually only directed at the husband and the wife and only indirectly affect Y Pty Ltd. However, to the extent, if any, that my orders might be considered to alter the rights, liabilities or property interests of a third party, namely Y Pty Ltd, I consider that I have the power to make them under s 90AF(2) of the Act. As such, I am satisfied that the preconditions set out in s 90AF(3), including the matters set out in s 90AF(4), are met and that I have considered them appropriately.

59.Y Pty Ltd was served with the application and appeared before me represented by the same solicitor and counsel as the husband. The orders, in force only until the determination of the wife’s s 44(3) application, are reasonably necessary and appropriate having regard to the property division the wife ultimately claims. The taxation implication of my orders has been considered and, at least in my view, been appropriately taken into account.

60.Finally, I will order that both the husband and the wife, through their solicitors, take all steps necessary to notify Mr H of these proceedings, the orders that I make today and the further hearing of the matter at the determination of the wife’s s 44(3) application.

61.I make the orders set out at the beginning of these reasons.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 18 May 2012.

Associate: 

Date:  24 May 2012