Ledarn and Ledarn - [2013] FamCA 858

FAMILY COURT OF AUSTRALIA

LEDARN & LEDARN

[2013] FamCA 858

FAMILY LAW – PROPERTY – Dispute over who should retain business – Division of interests having regard to wife retaining business – Section 75(2) factors considers. Injunction sought by wife to prevent husband competing with her – Injunction declined.

Family Law Act 1975 (Cth)

Bevan & Bevan [2013] FamCAFC 116
Borriello and Borriello (1989) FLC 92-049
Ceriani [1998] FamCA 143
Chorn and Hopkins (2004) FLC 93-204
Hull and Hull (1983) FLC 91-360
Jackson and Sterling Industries Limited [1987] HCA 23; (1987) 162 CLR 612
Jaddcal Pty Ltd v Minson (No 3) [2011] WASC 362
Kowali and Kowali (1981) FLC 91-092
Lenehan and Lenehan (1987) FLC 91-814
Lovine & Connor and Anor [2012] FamCAFC 168
Mallet and Mallet [1984] HCA 21; (1984) 156 CLR 605
Omacini (2005) FLC 93-218
Polonius & York [2010] FamCAFC 228
R v Lusink and Anor; Ex parte Shaw (1980) 32 ALR 47; (1980) FLC 90-884
Reynolds and Reynolds (1985) FLC 91-632
Stanford v Stanford (2012) FLC 93-495
Townsend and Townsend (1995) FLC 92-569
Trego v Hunt [1896] AC 7

APPLICANT:

Ms Ledarn

RESPONDENT:

Mr Ledarn

FILE NUMBER:

MLC

6423

2010

DATE DELIVERED:

1 November 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

18, 19, 20, 21, 22, 25 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Geddes Qc with Mr Wood

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Mr Mawson Sc with Mr O'shannessy

SOLICITOR FOR THE RESPONDENT:

Aughtersons

Orders

That the wife retain to the exclusion of the husband, the business known as the Ledarn Group.
That the husband and wife sign all necessary documents to give effect to these orders.
That the assets of the parties as defined in paragraph 115 of the reasons for judgment this day be divided as to the husband 57.4 percentage and as to the wife, 42.6 percentage.
That the parties draw the minutes necessary to give effect to these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ledarn & Ledarn 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 MELBOURNE

FILE NUMBER: MLC 6423 of 2010

Ms Ledarn

Applicant

And

Mr Ledarn

Respondent

REASONS FOR JUDGMENT

The main dispute between Mr Ledarn (“the husband”) and Ms Ledarn (“the wife”) concerns who should retain the business. Each wants it.
In addition to the question of the retention of the business is that of how (and on what basis) their various interests in property should be altered.
In my view, the proper order and one which is just and equitable is for the wife to retain the business and for there to be an appropriate adjustment otherwise in property and a payment in cash in favour of the husband.
In seeking the business, the wife also seeks an injunction against the husband preventing him 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.

Continue reading Ledarn and Ledarn

Details

AGLC: Ledarn and Ledarn [2013] FamCA 858
Case: [2013] FamCA 858
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard a dispute between Ms Ledarn (the wife) and Mr Ledarn (the husband) concerning the retention of their jointly owned business, the Ledarn Group. In addition to determining who should retain the business, the court was required to consider how the parties' various property interests should be divided. The wife also sought an injunction to prevent the husband from competing with her should she retain the business.

The court was tasked with determining whether the wife should retain the business, and if so, what adjustments to the property division were just and equitable. A further issue was whether an injunction should be granted to restrain the husband from competing with the business. The court also considered the impact of the husband's past bankruptcy and his subsequent health issues on his role and control within the business structures, as well as the wife's management of the business during these periods.

In its reasoning, the court found that the wife should retain the business, acknowledging her dominant legal control over the major corporate entities. The court declined to grant the injunction sought by the wife, finding it not proper on the balance of convenience and other considerations. The court noted that the husband's bankruptcy, while significant, did not preclude an alteration of legal interests if it was just and equitable to do so. The court also considered the financial performance of the business, attributing a significant downturn in one year to the global financial crisis rather than solely to the wife's management. The court ultimately ordered that the assets be divided with the husband receiving 57.4% and the wife 42.6%.

Orders