Lee and Rim (No 2)

[2015] FamCA 798

FAMILY COURT OF AUSTRALIA

LEE & RIM (NO 2) [2015] FamCA 798

FAMILY LAW – PROPERTY – Urgent application by the wife to restrain the husband from inter alia closing down his business – where the pool is limited – where the husband submits that he cannot manage the business in the context of numerous court proceedings and where his mental health is suffering – where the wife submits that she wishes to take over the business to preserve its value – where the next court date is less than one month away – interim orders made restraining the husband from closing down the business

FAMILY LAW – COSTS – Application by the wife that costs be reserved – where the application is opposed by the husband – interim orders made reserving costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Lee

RESPONDENT: Mr Rim

FILE NUMBER: MLC 11067 of 2013

DATE DELIVERED: 7 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 7 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Moisidis

SOLICITOR FOR THE APPLICANT: R & J Legal Services

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. Until 3 August 2015 the husband be restrained by injunction from exercising his rights and powers as a director of B Pty Ltd to do any acts or things to close down, transfer or sell the business known as C Pty Ltd without the written consent of the wife or order of this Court.

2. Until 3 August 2015 the husband be restrained by injunction from selling, disposing or transferring his shares in B Pty Ltd without the written consent of the wife or order of this Court.

3. Cost be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lee & Rim (No 2) 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 11067  of 2013

Ms Lee

Applicant

And

Mr Rim

Respondent

REASONS FOR JUDGMENT

1. The application before the Court today is the wife’s Application in a Case filed 1 July 2015 seeking injunctive relief with respect to the business trading as C Pty Ltd.  This is a mowing business operated by the husband.  The parties have a hearing in relation to interim applications listed before Johns J on 3 August 2015.  This application was brought urgently, the wife deposes, because during a telephone mention with respect to child support, she says that the husband said that he had placed an advertisement to sell the business C Pty Ltd. 

2. The husband appears in person today.  He was served with the documents on 2 July 2015, but has not, at this point in time, responded to that application.  He says that he has made inquiries of a legal service, but the first appointment was some two weeks away, and it is on that basis that he has not responded. 

3. The husband consents to an order restraining him from exercising his rights and powers as a director of B Pty Ltd to transfer or sell the business known as C Pty Ltd without the written consent of the wife or by an order of this Court, and an order restraining him from transferring his shares in B Pty Ltd.

4. The only part of the order proposed to be made by the wife that the husband does not consent to is that part of the order that restrains him from closing down the business.  He submits that there are lots of proceedings which are taking up his time.  He makes the point that his mother is now being involved in these proceedings.  He is also involved in proceedings with respect to an Intervention Order, the next appearance with respect to that application being on 14 September 2015.  He says that he has been seeing a psychologist and has been finding life difficult.  However, somewhat unusually, as it is the wife’s application that she take over the business, he resists that application.

5. Given that this matter is listed for hearing on 3 August before Johns J, and given the limited value of the assets that are in dispute – and there would appear to be some complexity to the matter in light of that relatively small asset pool – and given, in particular, that the wife says she has worked in the business and wants to operate the business, I am satisfied that in order to preserve what is a fairly limited asset pool, it is appropriate to make an order that the husband not simply close the business down between now and the hearing on 3 August 2015. 

6. On that basis, I propose to accede to the application made by the wife and make the orders contained in the minute of proposed orders. 

7. The only other matter which was in dispute is that that minute proposed that costs be reserved.  That is not an order that any costs be paid.  It may well be that that application will not be pursued.  If it is pursued, then the wife would have to establish that there is a basis for a costs order.  In all of the circumstances, I propose to reserve the costs.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 7 July 2015.

Associate: 

Date:  30 July 2015