Linford & Ennis
[2024] FedCFamC2F 68
•25 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Linford & Ennis [2024] FedCFamC2F 68
File number: HBC 899 of 2022 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 25 January 2024 Catchwords: FAMILY LAW – Registrar review – Application for review of orders made by a Senior Judicial Registrar for the payment of money into solicitors’ trust account pending final hearing and for the provision of business records – whether Applicant attempting to have a ‘second grab’ hearing – minor amendments to Senior Judicial Registrar’s Orders due to Respondent changing solicitors – Review Application dismissed Legislation: Family Law Act 1975 (Cth) ss 114(2A) and 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254 and 256
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) pt 14.3
Cases cited: Accardi & Russo [2022] FedCFamC1F 253
Farr & Farr [1976] FamCA 72; (1976) FLC 90-133
Hopkins & Elliott (No 3) [2023] FedCFamC1F 531
Lawson & Glenning [2021] FedCFamC2F 118
Newman & Tate [2020] FamCA 1114
Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935
Nowell & Nowell [2021] FedCFamC2F 170
Sieling & Sieling [1979] FamCA 23; (1979) 35 FLR 458
Tsiang & Wu [2019] FamCAFC 128
Division: Division 2 Family Law Number of paragraphs: 144 Date of last submissions: 10 November 2023 Date of hearing: 10 November 2023 Place: Melbourne (by videoconference) The Applicant: Appeared in person Counsel for the Respondent: Mr Tresize Solicitor for the Respondent: JC Legal Group ORDERS
HBC 899 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LINFORD
Applicant
AND: MS ENNIS
Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS THAT:
1.Order 9 of the Orders of a Senior Judicial Registrar made on 7 September 2023 (Registrar’s Orders) be amended to read as follows:
(a)To pay any balance thereafter to the Trust account of JC Legal Group to be held on Trust pending a written agreement of the parties or order of a Court of competent jurisdiction.
2.Order 10 of the Registrar’s Orders be amended to read as follows:
(a)THAT the Respondent forthwith, and no later than 7 days from the date of these Orders, arrange to deposit the amount of $27,000 into the Trust account of JC Legal Group with such monies thereafter to be held in that Trust account and released only in accordance with any written agreement by the parties or pursuant to an Order of a Court of competent jurisdiction.
3.Subject to Orders 5 to 7 herein the Application for Review, filed by the Applicant Mr Linford (Applicant) on 18 September 2023 (Application for Review) and the Response to an Application in a Proceeding, filed by the Respondent Ms Ennis (Respondent) on 9 November 2023 are dismissed.
4.The Interim Orders made by Judge C. E. Kirton KC on 11 December 2023 (11 December 2023 Orders) are discharged.
5.In the event of the Respondent seeking an order for her costs of and incidental to the Application for Review and the 11 December 2023 Orders, the Respondent is to file and serve within 14 days of the date of these Orders written submissions of no more than five (5) pages (Respondent’s Costs Submissions).
6.The Applicant has leave to reply to the Respondent’s Costs Submissions in writing within 14 days of receipt of the Respondent’s Costs Submissions, provided that such written submissions are of no more than five (5) pages.
7.Any application by the Respondent for her costs of and incidental to the Application for Review will be determined on the papers unless otherwise ordered.
AND THE COURT NOTES THAT:
A.Subject to Orders 1 and 2 of these Orders, the Orders of a Senior Judicial Registrar made on 7 September 2023 otherwise remain in full force and effect.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
These Reasons for Judgment are in relation to an Application for Review filed by Mr Linford (Applicant) on 18 September 2023 (Review Application). The Applicant seeks review of the Orders of a Senior Judicial Registrar made on 7 September 2023 (Registrar’s Orders).
The Registrar’s Orders relevantly provide, inter alia, for the production by the Applicant to Ms Ennis (Respondent) of business and financial records of B Pty Ltd trading as Linford Group, the payout of liabilities or indemnification of the Respondent by the Applicant with respect to such liabilities, and the payment by the Applicant of $27,000 into the Respondent’s Solicitors’ trust account, pending further order of the Court or the written agreement of the parties.[1]
[1] Orders of a Senior Judicial Registrar made on 7 September 2023 (Registrar’s Orders).
The hearing of the Review Application took place by videoconference on Microsoft Teams on 10 November 2023 (Review Hearing). The Applicant appeared in person and the Respondent was represented by Counsel. At the conclusion of the Review Hearing, judgment was reserved. These are the Reasons for Judgment in relation to the Review Hearing.
ISSUES FOR DETERMINATION
The issues for determination in the Review Application in relation to the Registrar’s Orders are whether:
(a)Orders 2, 8, 9 and Notation E should be amended; and
(b)Orders 3(a) and (c), 5 and 10 should be set aside.
SYNOPSIS
I have determined that:
(a)Order 10 of the Review Application should be amended to:
(i)Delete the words “currently being held by his mother, [Ms C]” with reference to the sum of $27,000;
(ii)Delete reference to “[D Law Firm]” and to insert “JC Legal Group” in lieu thereof;
(b)The Review Application otherwise be dismissed; and
(c)Directions be made in relation to any costs application that the Respondent seeks to make.
BACKGROUND
The Applicant was born in 1973 and is currently 50 years old. He has four children from previous relationships. The Applicant now has a Country E partner who has a temporary visa.[2]
[2] Affidavit of Mr Linford (Applicant), sworn or affirmed and filed 21 September 2023, (Applicant’s 21 September 2023 Affidavit), [7].
The Respondent was born in 1980 and is currently 44 years old. She has one child of a previous relationship.
The Applicant was declared bankrupt in 2011.
The parties commenced a de facto relationship in September or October 2015 and separated in January 2022, a period of approximately six (6) years and four (4) months. There are no children of the relationship.
At the time of the commencement of the relationship the Applicant moved into the Respondent’s home at F Street, Suburb G.
At the time that the relationship commenced the Applicant had recently separated from his second wife Ms H in or about mid-2015 and was living with his parents. The Applicant was, using his parents’ car and working for Ms H for an irregular wage. The Applicant brought no assets into the relationship apart from some old tools and a vehicle.
During the relationship in late 2015, the parties set up J Pty Ltd trading as K Group. Although both parties were initially Directors of J Pty Ltd, the Respondent became the sole Director from approximately 2018 due to the Applicant having been declared bankrupt in 2011.[3] The Respondent is also the Secretary of J Pty Ltd. The Applicant remained a shareholder and employee in the role of General Manager of K Group. The Respondent provided the capital for the K Group by extending the home loan on the Suburb G Property.
[3] Affidavit Ms Ennis (Respondent), sworn or affirmed on 30 November 2022 and filed 2 December 2022 (Respondent’s 2 December 2022 Affidavit), [32].
K Group operated out of a commercial warehouse situated at L Street, Suburb M. K Group specialised in retail sales. The business was based in City N, servicing Tasmania with options for business to and from Victoria. During the relationship, K Group was the parties’ main source of income.
After separation, the Applicant continued working as General Manager of K Group. The Applicant claims that the Respondent, in her ongoing capacity as the sole Director of J Pty Ltd, deliberately damaged K Group and its relationship with key clients.
The Respondent also operates a business called O Business in Town P (O Business), which she purchased in 2018. The Respondent has deposed that the Applicant has had ‘minimal involvement’ in O Business and that the property purchased for this business is secured against the Suburb G Property.
In early 2023, the Applicant commenced trading as Linford Group. The Applicant is the sole Director and shareholder of B Pty Ltd. The Applicant concedes: that Linford Group “is effectively one and the same as [K Group]”; and that Linford Group is using all of the assets of K Group.[4] The Applicant has deposed that Linford Group uses MYOB software for accounting and record-keeping purposes.[5]
[4] Affidavit of the Applicant sworn and filed 25 May 2023 (Applicant’s 25 May 2023 Affidavit), [40] and [41].
[5] Affidavit of the Applicant, sworn on 18 September 2023 and filed on 9 October 2023 (Applicant’s 9 October 2023 Affidavit), [10].
In early 2023 the Applicant informed the Respondent that: K Group was no longer trading; K Group no longer leased the Suburb M Warehouse and that Linford Group now leased the Suburb M Warehouse and had moved in; the staff that were employed by K Group were now employed by Linford Group; and that the Respondent was prohibited from attending the Suburb M Warehouse.[6]
[6] Affidavit of the Respondent affirmed on 21 March 2023 and filed 22 March 2023 (Respondent’s 22 March 2023 Affidavit), [26] and [32].
The Applicant’s actions in causing K Group to cease trading in early 2023 were without warning to the Respondent and without the Respondent’s agreement. As a result of the Applicant’s actions the Respondent stopped receiving her weekly wage of $1,290 (gross) or superannuation contributions.[7]
[7] Affidavit of the Respondent, sworn and filed 9 June 2023 (Respondent’s 9 June 2023 Affidavit), [17], [39] and [40].
PROCEDURAL HISTORY
The procedural history of this matter is summarised insofar as it is relevant to consideration of the Review Application.
Substantive Proceeding
On 4 October 2022, the Applicant filed an Initiating Application (Initiating Application), seeking interim and final property orders (Substantive Proceeding). Relevantly the interim orders sought by the Applicant in the Initiating Application included orders that: the Respondent appoint the Applicant director and secretary of J Pty Ltd within 48 hours of the orders being made; the Respondent thereafter resign as director and from all offices held by her with J Pty Ltd within 24 hours; and the Respondent otherwise be restrained from having any involvement in the operation of K Group.[8]
[8] Initiating Application filed by the Applicant on 4 October 2022, Annexure to Initiating Application-Orders Sought by the Applicant, ‘3. Interlocutory orders sought’, 1-4 and 8.
On 4 October 2022 the Applicant also filed a Financial Statement (Applicant’s 4 October 2022 Financial Statement)[9] and an Affidavit, sworn by the Applicant on 3 October 2022. At the time that the Substantive Proceeding was commenced the Applicant was represented by Q Law Firm, Solicitors of City N (Applicant’s Solicitors).
[9] Financial Statement filed by the Applicant on 4 October 2022 (Applicant’s 4 October 2022 Financial Statement).
On 24 November 2022, the matter came before a Judicial Registrar at the City N Registry of the Court for the proceeding’s first return date. The Applicant was represented by the Applicant’s Solicitors and the Respondent was represented by D Law Firm of City R (D Law Firm Lawyers).
The Orders made on 24 November 2022 (24 November 2022 Orders) included Orders: for the proceeding to be listed before a Senior Judicial Registrar for an interim defended hearing on 20 December 2022; for each of the parties to file material; for mutual discovery of specific categories of documents; for the appointment of a single expert in the event of a dispute between the parties as to the value of any property or financial resource; and for all extant applications to otherwise be adjourned to a Judicial Registrar’s List on 23 March 2023.[10]
[10] Orders of a Judicial Registrar made on 24 November 2022.
On 2 December 2022 the Respondent filed a Response to Initiating Application (Response to Initiating Application) seeking interim and final orders. In the Response to Initiating Application the Respondent sought final orders that included that there be a division of the non-superannuation pool of 30% to the Applicant and 70% to the Respondent.[11] The Respondent sought interim orders in the Response to Initiating Application that: the interim orders sought by the Applicant in the Initiating Application be dismissed; the management of K Group be jointly undertaken by the Applicant in his capacity as Manager and the Respondent in her capacity as Director; the Applicant and the Respondent be restrained from operating email accounts in the name of K Group to send personal emails; and further orders to facilitate the joint management and operation of K Group.[12]
[11] Response to Initiating Application filed by the Respondent on 2 December 2022 (Response to Initiating Application), ‘Final orders sought by you the respondent’, [4b][1].
[12] Response to Initiating Application, ‘Interlocutory orders sought by you the respondent’, [5b], Annexure, [1]-[18].
On 2 December 2022 the Respondent also filed a Financial Statement (Respondent’s 2 December 2022 Financial Statement) and an Affidavit, sworn by the Respondent on 30 November 2022 (Respondent’s 2 December 2022 Affidavit). It is noted that when filed the Respondent’s 2 December 2022 Affidavit did not include Annexure “C” referred to at paragraph [50] of the Affidavit. Further there is no reference to an Annexure “B” in the Respondent’s 2 December 2022 Affidavit.
On 8 December 2022 the Respondent filed an Outline of Case Document (Interim Hearing) (Respondent’s 8 December 2022 Outline of Case).
On 13 December 2022 the Applicant filed an Outline of Case Document (Interim Hearing) (Applicant’s 13 December 2023 Outline of Case) which identified the following issues to be determined by the Court at the interim hearing:
(a)The removal of the Respondent as a Director of J Pty Ltd and the appointment of the Applicant as a Director and Secretary of J Pty Ltd; and
(b)Injunctive orders to restrain the Respondent’s involvement in the operation of K Group.[13]
[13] Outline of Case Document (Interim Hearing), filed by the Applicant on 13 December 2022 (Applicant's 13 December 2022 Outline of Case), Part C ‘Issues in Dispute’, [1] and [2].
An interim defended hearing was held on 20 December 2022 before a Senior Judicial Registrar, via video conference from Brisbane. Both parties were represented and Interim Orders were made by consent with respect to K Group (20 December 2022 Consent Orders). The 20 December 2022 Consent Orders substantially followed the interim orders sought by the Respondent in the Response to Initiating Application. The 20 December 2022 Consent Orders included Orders that:[14]
[14] Orders of a Senior Judicial Registrar made on 20 December 2022, Orders 1 to 14.
(a)The parties be restrained from using email accounts in the name of K Group to send personal emails;
(b)The parties be restrained from discussing with employees and/or clients of K Group the proceedings and/or the relationship breakdown, except for the purpose of advising staff of issues in dispute that had been resolved on an interim basis;
(c)The Respondent had the option to attend the commercial premises of K Group once a week for up to one (1) hour, upon giving a minimum of two (2) days’ notice in writing;
(d)Within 48 hours the Respondent was to do all things necessary to ensure that the Applicant had administrator access and/or full access to server facilities, website, bank facilities (including online), and other commercial facilities associated with K Group;
(e)Until further order:
(i)The Applicant provide to the Respondent via a specified email address, accounts and/or invoices by 5:00 pm each Friday;
(ii)The parties do all things necessary to cause business accounts and/or invoices issued to K Group to be paid by 5:00 pm the following week;
(iii)The parties do all things necessary to cause the receipts of any expenses incurred in the course of their duties to be sent to the other by 5:00 pm each week; and
(iv)The parties do all things necessary to cause the expenses referred to in sub‑paragraph (e)(iii) to be repaid in one (1) payment to the relevant party by 5:00 pm the following week;
(f)The parties were restrained from disposing of any assets held by K Group without the written consent of both parties or an order of the Court;
(g)The Applicant was to do all things necessary to provide to the Respondent by 9:00 am on Monday each week: staff run sheets; and written confirmation by email of cash received;
(h)The parties do all things necessary to cause all cash received to be banked within 72 hours of receipt;
(i)The parties do all things necessary to process staff wages (including the wages of the parties) and contractor wages by 1:00 pm Monday in each week;
(j)The Applicant do all things necessary to cause the Respondent to be notified of any quote issued within 48 hours of issue;
(k)The 20 December 2022 Consent Orders acted as an authority for the accountant for J Pty Ltd to release information to both parties; and
(l)The Applicant was to provide to the Respondent within 48 hours an email address for the purpose of any communication regarding the implementation of the 20 December Consent 2022 Orders.
On 20 December 2022 it was also Ordered that the balance of the issues in dispute between the parties be adjourned to the directions hearing on 23 March 2023.[15]
[15] Orders of a Senior Judicial Registrar made on 20 December 2023, Order 16.
On 22 March 2023 the Respondent filed an Application in a Proceeding (Respondent’s Application in a Proceeding) and an Affidavit, sworn by the Respondent on 21 March 2023 (Respondent’s 22 March 2023 Affidavit). The Respondent’s Application in a Proceeding was listed for the directions hearing on 23 March 2023 before a Judicial Registrar. The Respondent’s Application in a Proceeding sought orders which relevantly included:[16]
[16] Application in a Proceeding, filed by the Respondent on 22 March 2023, Part D ‘The Orders you are seeking’, [6] and Annexure “A”.
(a)The 20 December 2022 Consent Orders be discharged;
(b)The Respondent have sole authority and control over the operations of K Group;
(c)The Applicant deliver to the Respondent within 48 hours all the assets owned by K Group, with such assets to include: motor vehicles; all office equipment, including computers and a printer; and all stock from the office;
(d)Within 48 hours the Respondent deposit the sum of $27,000 alleged to be held by the Respondent’s mother Ms C, into a specified account, the account holder of which was not identified;
(e)The Applicant be restrained from having the use of and/or possessing any asset owned by K Group;
(f)The Applicant be restrained from pursuing and/or collecting payment of invoices for work undertaken by K Group;
(g)The Applicant be restrained by way of injunction from having access to the following in relation to K Group: email accounts; banking facilities including online and other commercial facilities; accounting information; and current client information and/or previous client information;
(h)The Applicant be restrained by way of injunction from operating K Group;
(i)The Respondent have sole authority and control over all bank accounts operated by K Group; and
(j)The Applicant pay the Respondent’s costs of and incidental to the Respondent’s Application in a Proceeding.
On 23 March 2023 a Judicial Registrar made Orders which may be relevantly summarised as follows:
(a)The Respondent’s Application in a Proceeding was listed for an interim defended hearing before a Senior Judicial Registrar (Senior Judicial Registrar) on 31 May 2023;
(b)The parties were to file documents relevant to the interim defended hearing;
(c)Time was extended to 20 April 2023 for the parties to comply with their discovery obligations pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (2021 Rules) and the 24 November 2022 Orders;
(d)Time was extended to 20 April 2023 for the appointment of a single expert in the event of a dispute between the parties as to the value of any property or financial resource;
(e)The parties were to attend a Conciliation Conference with a Judicial Registrar on 17 August 2023; and
(f)Orders to facilitate the conduct of the Conciliation Conference were made.
On 25 May 2023 the Applicant filed a Response to Application in a Proceeding (Applicant’s Response to Application in a Proceeding). The Applicant’s Response to Application in a Proceeding seeks orders that: the Respondent’s Application in a Proceeding be dismissed; and the Respondent pay the Applicant’s costs of and incidental to the Respondent’s Application in a Proceeding. On 25 May 2023 the Applicant also filed an Affidavit, sworn by the Applicant on 25 May 2023 (Applicant’s 25 May 2023 Affidavit). It is noted that in the Applicant’s 25 May 2023 Affidavit the Applicant deposed that the value of an inheritance that he had received from his Grandmother (Inheritance) was at that time $83,000.00.[17]
[17] Applicant’s 25 May 2023 Affidavit, [3].
On 30 May 2023 the Applicant filed an Outline of Case Document (Interim Hearing). The Respondent also filed an Outline of Case Document (Interim Hearing) on 30 May 2023 (Respondent’s 30 May 2023 Outline of Case).
On 31 May 2023 the matter came before the Senior Judicial Registrar for the hearing of the Respondent’s Application in a Proceeding and the Applicant’s Response to Application in a Proceeding. Both parties were represented. On 31 May 2023 Orders were made which may be relevantly summarised as follows:
(a)The hearing of the of the Respondent’s Application in a Proceeding and the Applicant’s Response to Application in a Proceeding was adjourned to 13 June 2023 for an interim defended hearing (Interim Defended Hearing);
(b)The parties were to file a joint tender bundle by 9 June 2023; and
(c)The question of costs was adjourned to 13 June 2023.
On 9 June 2023 the Respondent filed an Affidavit sworn by the Respondent the same day (Respondent’s 9 June 2023 Affidavit).
The Interim Defended Hearing was listed before the Senior Judicial Registrar on 13, 15 and 16 June 2023. The Court records do not indicate why the Interim Defended Hearing was listed for three (3) days before the Senior Judicial Registrar. In any event it is apparent that the Interim Defended Hearing took place.
On 22 June 2023 the Respondent filed an affidavit affirmed by the Respondent on 22 June 2023 and filed on 23 June 2023 (Respondent’s 23 June 2023 Affidavit).
On 28 July 2023 the Senior Judicial Registrar delivered oral Reasons for Decision (Registrar’s Reasons for Decision) in relation to the Interim Defended Hearing.
On 16 August 2023 a Judicial Registrar in Melbourne made Chambers Orders (16 August 2023 Orders) vacating the Conciliation Conference on 17 August 2023 and adjourning all outstanding applications to the Judicial Registrar’s List on 7 September 2023 for a procedural hearing. The 16 August 2023 Orders included a notation that the Conciliation Conference was vacated in circumstances where the Applicant and Respondent agreed that the matter was not ready to proceed due to the absence of valuations of the real estate and corporate entities.[18]
[18] Orders of a Judicial Registrar made on 16 August 2023, Notation A.
On 30 August 2023 the Applicant’s Solicitors filed a Notice of Ceasing to Act. The Applicant has been self-represented since that date.
On 1 September 2023 the matter was listed before the Senior Judicial Registrar for mention. The Applicant appeared in person and Respondent was represented. On 1 September 2023 Orders were made which may be summarised as follows:
(a)The parties were to provide chambers with an agreed minute of order that was consistent with the Registrar’s Reasons for Decision within four (4) working days; and
(b)If the parties were unable to provide an agreed minute of order, then each party was to submit their proposed orders to chambers within four (4) working days.
On 7 September 2023 the Registrar’s Orders in relation to the Registrar’s Reasons for Decision were published. It is noted that the cover sheet and heading of the Registrar’s Orders refer to the applicant as being Mr Linford and the respondent as being Ms Ennis, in accordance with the Substantive Proceeding. The Registrar’s Orders themselves however refer to Mr Linford as being the respondent and Ms Ennis as being the applicant, in accordance with the Respondent’s Application in a Proceeding.
The Registrar’s Orders provide as follows:
UPON NOTING
A.Oral reasons relating to the interim proceedings were provided on 28 July 2023.
B.At the listing on 28 July 2023 the solicitors for the parties were directed to provide chambers with the minute of order consistent with the oral reasons provided on 28 July 2023 within 7 days.
C.The matter was listed for mention before [a] Senior Judicial Registrar on 1 September 2023 as the minute referred to in notation “A” herein had not been provided.
D.The parties each submitted a minute of their proposed orders to be considered in chambers.
FROM CHAMBERS AND UNTIL FURTHER ORDER, THE COURT ORDERS:
1.THAT the Respondent [Mr Linford] be at liberty to continue to operate the business ‘[B] Pty Ltd trading as [Linford Group]’ provided that:
a.The Respondent does not operate, or cause to be operated, or support any third party operating, any business which is in direct or indirect competition with [Linford Group].
b.The Respondent does nothing to cause [Linford Group] to operate under any different business structure and/or name.
c. The Respondent does nothing to cause the company to be involved in any sort of scheme or arrangement colloquially known as a “Phoenix operation” whereby [Linford Group] would cease trading under that name but continue, for all intents and purposes trading under another name.
2.That the Applicant [Ms Ennis] have unfettered access to the business records of [Linford Group], at all times requested by her, and that the Respondent open up and make available all books, accounts and other business documents of [Linford Group] to any Forensic Accountant engaged by the Applicant at the Applicants request.
3.THAT:
a.The Respondent provide to the Applicant, via email to […], all accounts and/or invoices issued to or issued by [Linford Group] by 5 pm Friday each week.
b.The Respondent do all things necessary to cause business accounts and/or invoices issued to [Linford Group] in any week to be paid by the due date; and
c.The Respondent do all things necessary to provide to the Applicant the receipts of any expenses incurred by him in the course of his duties by Friday 5pm each week.
4.THAT the Applicant and the Respondent are restrained from disposing of any assets held by the entity which [J Pty Ltd] trading as [K Group] and/or [Linford Group] without the written consent of both the Applicant and the Respondent, or an Order from a Court of competent jurisdiction..
5.THAT, the Respondent is to do all things necessary to provide to the Applicant by 9:00am on Monday each week:
a. Staff run sheets for [Linford Group];
b. Written confirmation of cash received by [Linford Group]
by email.
6.THAT this Order shall act as an Authority for the Accountant/s for [J Pty Ltd] trading as [K Group] and/or [B] Pty. Ltd. [Linford Group] to release information to both the Applicant and the Respondent.
7.THAT pursuant to Section s90SS(1)(k) and/or Section 114 of the Family Law Act 1975_ the Respondent be restrained from, and an injunction issue against the Respondent, operating any other business in competition with [Linford Group], or supporting in any direct or indirect manner any other company operating in competition with [Linford Group].
8.THAT the Respondent forthwith pay out in full the [S Company], [T Company], Lease Rental and [U Company] liabilities of the entity [J Pty Ltd] trading as [K Group], and any other liabilities of that entity which are secured against the personal assets of the Applicant, whether by personal guarantee, Deed, contract or otherwise, and if that is not possible then the Respondent shall forthwith be responsible to make all repayments in respect of those liabilities and indemnify the Applicant absolutely in relation to such liabilities and, further, the Respondent shall provide written evidence no less than once per month to the Applicant confirming such payments have been made, such evidence to be provided within three days of payment being made.
9.THAT in the event that the Respondent defaults on two (2) or more payments in respect of any secured loan or liability referred to in the immediately preceding order then the Respondent shall, at the request of the Applicant, be liable to deliver up the secured asset to the Applicant within three (3) days of that request being made, such to be done by making the same available for collection by the Applicant on a date, time and place nominated by her, and the Applicant shall thereafter be at liberty to sell that asset with proceeds of sale to be applied in the following matter and priority;
a.To pay the loan liability secured against that asset and any costs of sale;
b.To pay any balance thereafter to the Trust account of [D Law Firm] to be held on Trust pending a written agreement of the parties or order of a Court of competent jurisdiction.
And in the event that after the sale of such a secured asset there is any debt remaining the Respondent shall be solely liable to pay out in full such liability forthwith and shall indemnify the Applicant in relation to same.
10.THAT the Respondent forthwith, and no later than 7 days from the date of these Orders, arrange to deposit the amount of $27,000 currently held by his mother, [Ms C], into the Trust account of [D Law Firm] with such monies thereafter to be held in that Trust account and released only in accordance with any written agreement by the parties or pursuant to an Order of a Court of competent jurisdiction.
11.That all extant interrogatory proceedings be dismissed.
IT IS FURTHER NOTED THAT:
E.The liabilities of [J Pty Ltd] trading as [K Group] which the Applicant has a given personal guarantee with respect to include but are not limited to the following:
a.[T] Pty Ltd E$45,000. ([Motor Vehicle 1])
b.[S Company] liability E$67,990.00 ([Motor Vehicle 2]
c.[S Company] liability E$80,000 ([Motor Vehicle 3])
d.[U Company] Liability ([Motor Vehicle 4])
e.Lease Pay liability/ies
Noting the above estimate are the original loan amounts and not current loan amounts
(Without alteration)
On 7 September 2023 a Judicial Registrar also made Orders, which were amended on 20 September 2023 (Judicial Registrar’s 7 September 2023 Orders). These Orders may be relevantly summarised as follows:
(a)The Substantive Proceeding was listed for case management in the City N Registry on 2 October 2023 before Judge Taglieri (Trial Judge), with an estimated final hearing time of four (4) days;
(b)The Applicant was to file and serve an affidavit by 22 September 2023 outlining the purpose of the transfer of funds to Country E and any interest in property or investments or renovations carried out in Country E;
(c)Time was further extended to 29 September 2023 in relation to the appointment of a single expert in the event of a dispute between the parties as to the value of any property or financial resource in dispute;
(d)Time was further extended to 22 September 2023 for the parties to comply with their discovery obligations pursuant to the 2021 Rules and the 24 November 2022 Orders; and
(e)It was noted that the scheduled Conciliation Conference was postponed, as the matter was not in a position to proceed.
Review Application
On 18 September 2023, the Applicant filed the Review Application. The Review Application seeks “review” of the Registrar’s Orders as follows:[19]
[19] Application for Review, filed by the Applicant on 18 September 2023 (Review Application), Part C ‘Details of Orders Sought to be Reviewed’.
1. Order 2 to be reviewed
2. Order 3 a. and c. be dismissed
3. order 5 be dismissed
4. order 8 be reviewed
5. order 9 be reviewed
6. order 10 be dismissed
7. the furthur notes be reviewed to only include vehicles in care and use of [B] Pty Ltd.
(Without alteration)
Annexure “A” to the Review Application sets out how the Applicant seeks to have the Orders referred to in the previous paragraph “reviewed”. Annexure “A” to the Review Application seeks “review” of Orders 2, 8 and 9 as follows:
2.That the Applicant [Ms Ennis] have
unfetteredaccess to thebusiness recordsMYOB file of [Linford Group], at all timesrequested by her, and that the Respondent open up and make availableall books, accounts and other business documentsthe complete MYOB file of [Linford Group] to any Forensic Accountant engaged by the Applicant at the Applicants request.8.THAT the Respondent forthwith pay out in full the [S Company], [T Company], Lease Rental
and [U Company]liabilities of the entity [J Pty Ltd] trading as [K Group], and any other liabilities of that entity which are in the possession of [B] Pty Ltd and secured against the personal assets of the Applicant, whether by personal guarantee, Deed, contract or otherwise, and if that is not possible then the Respondent shall forthwith be responsible to make all repayments in respect of those liabilities and indemnify the Applicant absolutely in relation to such liabilities and, further, the Respondent shall provide written evidence no less than once per month to the Applicant confirming such payments have been made, such evidence to be provided within three days of payment being made.9.THAT in the event that the Respondent defaults on two (2) or more payments in respect of any secured loan or liability referred to in the immediately preceding order then the Respondent shall, at the request of the Applicant, be liable to deliver up the secured asset to the Applicant within three (3) days of that request being made, such to be done by making the same available for collection by the Applicant on a date, time and place nominated by her, and the Applicant shall thereafter be at liberty to sell that asset with proceeds of sale to be applied in the following matter and priority;
a.To pay the loan liability secured against that asset and any costs of sale;
b.To pay any balance thereafter to the
Trust account of [D Law Firm] to be held on Trust pending a written agreement of the parties or order of a court of competent jurisdiction. NAB trading account of [J Pty Ltd].And in the event that after the sale of such a secured asset there is any debt remaining the Respondent shall be solely liable to pay out in full such liability forthwith and shall indemnify the Applicant in relation to same. Each party shall be responsible to pay out equal share of such liability forthwith.
(Words struck through to be deleted and words in italics to be added)
On 21 September 2023 the Applicant filed an Affidavit, sworn or affirmed by the Applicant on 21 September 2023 (Applicant’s 21 September 2023 Affidavit). The Applicant’s 21 September 2023 Affidavit responded to Order 2 of a Judicial Registrar’s 7 September 2023 Orders which required the Applicant to file and serve an affidavit by 22 September 2023 outlining: the purpose of the transfer of funds by the Applicant to Country E; any interest in property or investments the Applicant has in Country E; and any renovation work paid for by the Applicant on properties in Country E.
On 28 September 2023 the Applicant filed a second Financial Statement (Applicant’s 28 September 2023 Financial Statement).
On 2 October 2023 the Trial Judge made Orders, amended on 30 October 2023 (2 October 2023 Orders) in relation to the Substantive Proceeding: listing the Substantive Proceeding for a Conciliation Conference on 23 January 2023; listing the Substantive Proceeding for final hearing on 24 June 2024 with an estimated hearing time of three (3) days; and trial directions.
The 2 October 2023 Orders also included Orders by consent.[20] It was Ordered by consent that: time be further extended to 16 October 2023 for the parties to comply with their discovery obligations pursuant to the 2021 Rules and the 24 November 2022 Orders; and that within 14 days the parties jointly instruct specified companies to provide market valuations of two (2) properties, plant, equipment and motor vehicles and business entities.
[20] Orders of Her Honour Judge Taglieri made on 2 October 2023 and amended on 30 October 2023, Order 1 and Annexure “A”.
On 9 October 2023 the Applicant filed an Affidavit, sworn 18 September 2023 (Applicant’s 9 October 2023 Affidavit) which deposed that it was in support of the Review Application and an application for a stay.[21]
[21] Applicant’s 9 October 2023 Affidavit, [1]. It is noted that the Applicant did not file an Application in a Proceeding for a stay of the Orders of a Senior Judicial Registrar made on 7 September 2023. This is discussed later in these Reasons for Judgment.
On 25 October 2023 a Notice of Address for Service was filed indicating that the Respondent was now represented by JC Legal Group of Melbourne (Respondent’s Solicitors). The Respondent’s Solicitors have continued to act for the Respondent to date.
On 27 October 2023 I made procedural orders in Chambers relating to the conduct of the Review Hearing (27 October 2023 Orders). The 27 October 2023 Orders provided that:
(a)The Respondent was to file a Response to the Review Application setting out the orders sought, no later than five (5) business days before the Review Hearing;
(b)Each party was to file and serve an outline of argument of no more than five (5) pages no later than two (2) business days before the Review Hearing; and
(c)Neither party would be permitted to advance a case that was different from that set out in their outline of argument without leave of the Court.
On 7 November 2023 the Applicant filed a further Affidavit, sworn the same day (Applicant’s 7 November 2023 Affidavit) in relation to the alleged non-compliance by the Respondent with the 2 October 2023 Orders and a Judicial Registrar’s 7 September 2023 Orders in relation to discovery.
On 8 November 2023 the Respondent filed an Outline of Argument in relation to the Review Application (Respondent’s 8 November 2023 Outline of Argument).
On 9 November 2023, the Respondent filed a Response to an Application in a Proceeding responding to the Review Application (Response to Review Application), seeking orders that the Review Application be dismissed and for the Applicant to pay the Respondent’s costs of and incidental to the Review Application.[22]
[22] Response to an Application in a Proceeding, filed 9 November 2023 (Response to Review Application), Part B ‘The orders you are seeking’, [4].
The Review Hearing was held on 10 November 2023 by videoconference on Microsoft Teams, where the Applicant appeared in person and the Respondent was represented by Counsel. The Applicant and Counsel for the Respondent each made submissions and at the conclusion of the Review Hearing Judgment was reserved.
The final hearing in this matter is currently listed before the Trial Judge on 24 June 2024 for an estimated three (3) days.
Enforcement Application
On 4 December 2023 the Respondent filed an Application-Enforcement (Enforcement Application) and a Third Party Debt Notice (Third Party Debt Notice). The Enforcement Application seeks to enforce Orders 8, 9 and 10 of the Registrar’s Orders. Specifically the Enforcement Application seeks that a Warrant for Delivery be issued pursuant to r 11.57 of the 2021 Rules and that an enforcement officer be appointed under Division 11.1.3 of the 2021 Rules to seize and deliver four (4) specified motor vehicles being: a Motor Vehicle 3; Motor Vehicle 1; Motor Vehicle 2; and Motor Vehicle 5 (Motor Vehicles). The Third Party Debt Notice seeks to enforce Order 10 of the Registrar’s Orders by requiring the National Australia Bank Ltd (NAB) to pay to the Respondent the sum of $27,000 plus costs of $705.47.
On 5 December 2023 the Respondent filed an Affidavit affirmed on 30 November 2023 in support of the Enforcement Application and the Third Party Debt Notice.
My Associates were advised that the Respondent’s Solicitors had filed the Enforcement Application and the Third Party Debt Notice and I was advised of same. The proceeding was then listed before me for mention on 11 December 2023.
On 10 December 2023 the Applicant filed an Affidavit, sworn by the Applicant that day (Applicant’s 10 December 2023 Affidavit). In the Applicant’s 10 December 2023 Affidavit the Applicant deposed that the loans in relation to the Motor Vehicles had been paid in accordance with the Registrar’s Orders and that he had not missed any repayments.[23]
[23] Affidavit of the Applicant, sworn and filed 10 December 2023 (Applicant’s 10 December 2023 Affidavit), [10], [13], [19] and Annexures “B” and “D”.
In the Applicant’s 10 December 2023 Affidavit the Applicant again deposed that he did not have $27,000 and therefore could not comply with Order 10 of the Registrar’s Orders.[24] The Applicant’s 10 December 2023 Affidavit annexed a copy of an Affidavit of Ms C, sworn 13 November 2023.[25] The Ms C Affidavit was prepared shortly after the Review Hearing, no doubt in response to questions I asked the Applicant about whether the Applicant had filed an affidavit from Ms C, as none was filed with the Court.[26] The Ms C Affidavit has not subsequently been filed with the Court.
[24] Applicant’s 10 December 2023 Affidavit, [15] and [22].
[25] Applicant’s 10 December 2023 Affidavit, [22] and Annexure “I”.
[26] Transcript P15:L11-42.
The Applicant also deposed in the Applicant’s 10 December 2023 Affidavit that he submitted an application for a stay to the Court on 18 September 2023, and that as he had no legal training he had “no idea why the court has not processed the document”. The Applicant produced a copy of an Application in a Proceeding, dated 18 September 2023 witnessed by a Justice of the Peace, which sought an order that the Registrar’s Orders be stayed pending the outcome of the Review Application.[27]
[27] Applicant’s 10 December 2023 Affidavit, [15] and Annexure “E”.
The mention in relation to the Enforcement Application took place on 11 December 2023 by videoconference (Enforcement Mention). The Applicant appeared in person and Mr Herd, Solicitor appeared on behalf of the Respondent.
On 11 December 2023 I made Orders staying the Enforcement Application, the Third Party Debt Notice and Orders 8, 9 and 10 of the Registrar’s Orders, pending delivery of Judgment in relation to the Review Application (11 December 2023 Orders).[28]
THE POSITIONS OF THE PARTIES
[28] Orders made by Her Honour Judge C.E. Kirton KC on 11 December 2023, Orders 1 and 2.
The Applicant’s Position
The Applicant seeks review of the Registrar’s Orders on the basis that they were made without proper reference to his circumstances and would cause him extreme hardship. The ‘primary issue’ in the Review Application was identified by the Applicant to be Order 10 of the Registrar’s Orders, wherein the Applicant was ordered to pay $27,000 into D Law Firm trust account, pending further order of the Court or any written agreement of the parties.[29]
[29] Transcript P6:L29-31; Applicant’s Outline of Case Document (Interim Hearing), Exhibit A1 (Applicant’s 8 November 2023 Outline of Case), Part D ‘Outline of contentions’, [2].
The Applicant submits that he does not have, and has never had, $27,000 in Ms C’s safe. The Applicant concedes that he had $22,864 in his possession at the time of separation but submitted that these funds had been “dissipated into the new company with full explanation”.[30] The Applicant contended that an order for him to pay such an amount of money is not fair and equitable, and did not align with the principles espoused by the Full Court of the Family Court Sieling & Sieling [1979] FamCA 23; (1979) 35 FLR 458 (Sieling).
[30] Transcript P6:L42-45; Applicant’s 8 November 2023 Outline of Case, [2], [3] and [5].
The orders sought by the Applicant are otherwise as set out at paragraphs [45] and [46] above. At the commencement of the Review Hearing the Court confirmed with the Applicant that the Orders sought in the Review Application were the orders that the Applicant was seeking.[31]
[31] Transcript P3:L:40-P5:L15.
Documents relied on by the Applicant
The Applicant did not comply with the 27 October 2023 Orders, as the Applicant’s Outline of Case Document (Interim Hearing), dated 8 November 2023 (Applicant’s 8 November 2023 Outline of Case) was 37 pages in length (including annexures), instead of the required five (5) pages and was not received by the Court within the time required by the 27 October 2023 Orders. Consequently, the Applicant’s 8 November 2023 Outline of Case was not accepted for filing by the Court. At the Review Hearing, the Applicant’s 8 November 2023 Outline of Case was entered into evidence without opposition by Counsel for the Respondent as Exhibit A1.
The Applicant relied on the following Documents:[32]
(a)The Review Application;
(b)The Applicant’s 25 May 2023 Affidavit;
(c)The Applicant’s 21 September 2023 Affidavit; and
(d)The Applicant’s 8 November 2023 Outline of Case.
[32] Applicant’s 8 November 2023 Outline of Case, Part B ‘Documents relied on’.
The Applicant’s 8 November 2023 Outline of Case referred to a document as an ‘Application in Proceedings for a Stay’ and as being filed on 18 September 2023.[33] The Court notes that a document of this description is not held by the Court and was not filed by the Applicant on 18 September 2023 or at any other time. The Applicant was advised of same at the commencement of the Review Hearing and the absence of a filed application for a stay was discussed with the Applicant during the Review Hearing. The Applicant appeared frustrated and upset and insisted that such a document had in fact been filed as claimed.[34] At the Review Hearing I had no reason to consider that the Applicant did not believe that he had properly filed an application for a stay of the Registrar’s Orders, particularly in light of paragraph [1] of the Applicant’s 9 October 2023 Affidavit, where he deposed that “I am applying for a Stay and Review”. Be that as it may, at the Review Hearing I was not minded to entertain an oral application for a stay of the Registrar’s Orders by the Applicant without prior written notice to the Respondent and by the Applicant complying with r 14.06(2) of the 2021 Rules.
[33] Applicant’s 8 November 2023 Outline of Case, Part B ‘Documents relied on’.
[34] Transcript P3:L26-32; P5:L7-20; P16:L5-21.
The Respondent’s Position
The Respondent opposes the Review Application and the changes to the Registrar’s Orders as sought therein. The Respondent considers that the Applicant is improperly seeking to access a ‘rear door’ pathway of obtaining a stay of the Registrar’s Orders, similar to that referred to by Justice Campton in Hopkins & Elliott (No 3) [2023] FedCFamC1F 531 at [37]-[38].
Counsel for the Respondent made submissions which may be summarised as follows:
(a)There is evidence before the Court, in the form of the Applicant’s 28 September 2023 Financial Statement, that the Applicant has sufficient funds to satisfy his obligations under Order 10 of the Registrar’s Orders;[35]
(b)The Registrar’s Orders were properly made for the purpose of ‘preserving the status quo’ and ‘throwing a safety net up over the assets’ until the final hearing;[36]
(c)The Applicant is bound by the conduct of his former solicitor at the hearing before the Senior Judicial Registrar, particularly in their failing to object to Order 10 of the Registrar’s Orders at the time;[37] and
(d)A number of the amendments to the Registrar’s Orders as sought by the Applicant are so minor or insubstantial so as to not warrant reconsideration by this Court.[38]
[35] Transcript P12:L39-43.
[36] Transcript P11:L10-11; L23-25; P13:L16-19.
[37] Transcript P14:L1-6.
[38] Transcript P14:L11-14.
Documents relied on by the Respondent
The Respondent relied on the following documents:[39]
[39] Respondent’s Outline of Argument, filed 8 November 2023 (Respondent’s 8 November 2023 Outline of Argument), ‘Documents relied on by the Respondent’, 2.
(a)The Response to Initiating Application;
(b)The Respondent’s 2 December 2022 Affidavit;
(c)The Respondent’s 2 December 2022 Financial Statement;
(d)The Respondent’s 8 December 2022 Outline of Case;
(e)The Respondent’s Application in a Proceeding;
(f)The Respondent’s 22 March 2023 Affidavit;
(g)The Respondent’s 30 May 2023 Outline of Case;
(h)The Respondent’s 9 June 2023 Affidavit;
(i)The Respondent’s 23 June 2023 Affidavit; and
(j)The Respondent’s 8 November 2023 Outline of Argument.
RELEVANT LEGAL PRINCIPLES
Review Applications
In accordance with s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), parties may apply for review of an exercise of power by a delegate under s 254 of the FCFCOA Act.
Applications for review are dealt with under Part 14.3 of the 2021 Rules. A party applying for the review of the exercise of a power of a Judicial Registrar or a Senior Judicial Registrar must file the Application for Review and a copy of the order or decision sought to be reviewed, within 21 days after the order or decision is made: r 14.05(1) of the 2021 Rules. In this case the Registrar’s Orders were made on 7 September 2023 and the Review Application was filed on 18 September 2023. The Review Application was therefore filed within the time prescribed by r 14.05(1) of the 2021 Rules.
The filing of an application for review does not operate as a stay of any order: r 14:06(1) of the 2021 Rules. A party may apply for a stay of an order in whole or in part by filing an Application in a Proceeding: r 14:06(2) of the 2021 Rules. In this case the Applicant did not file an Application in a Proceeding seeking a stay of the Registrar’s Orders pursuant to r 14.06(2) of the 2021 Rules, as discussed earlier in these reasons for Judgment under the heading ‘Procedural History – Enforcement Application’.
The Court is required to conduct any review application as an original hearing. Rule 14.07(1) of the 2021 Rules provides that:
14.07 Procedure for review
(1)A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.
Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
The Court may receive as evidence: any affidavit or exhibit tendered at the first hearing; any further affidavit or exhibit; the transcript of the first hearing; and if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing: r 14.07(2) of the 2021 Rules.
In this case neither party has, pursuant to r 14.07(2)(c) or (d) of the 2021 Rules: filed an affidavit exhibiting the transcript of the Interim Defended Hearing: or an affidavit about the evidence that was adduced at the Interim Defended Hearing, from a person who was present at the Interim Defended Hearing.
Further, neither party has filed an affidavit exhibiting: the transcript of the Registrar’s Reasons for Decision which were delivered on 28 July 2023; or from a person who was present at the at the time the Registrar’s Reasons for Decision were delivered.
In Nowell & Nowell [2021] FedCFamC2F 170, Chief Justice Alstergren said at [21], in relation to the assessment of an application for review of a Registrar’s decision:
21. When making this assessment, I must consider the sections of the Act which set out the overarching purpose of the provisions. Section 190 of the Act provides that the overarching purpose is to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. The objectives included in the overarching purpose are listed in section 190(2), as follows:
(a) The just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) The efficient disposal of the Court’s overall caseload;
(c) The disposal of all proceedings in a timely manner; and
(d)The resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
When participating in proceedings in this Court the parties must act in accordance with r 1.04 of the 2021 Rules which provides:
Overarching purpose
1.04
(1)The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Note 1:These Rules must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the overarching purpose (see subsection 67(3) of the Federal Circuit and Family Court Act).
Note 2:See sections 190 and 191 of the Federal Circuit and Family Court Act in relation to the overarching purpose of the Rules of the Federal Circuit and Family Court (Division 2). See also the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 which applies these Rules with modifications.
(2)Parties to family law proceedings must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
[…]
In Lawson & Glenning [2021] FedCFamC2F 118 Judge Riethmuller (as His Honour then was) when considering a costs application in relation to the review of a Registrar’s decision, said at [9] and [27]:
9.The Federal Circuit and Family Court of Australia Act 2021 (‘FCFCOA Act’) contains a number of provisions with respect to case management and the purpose of the Court. Sections 190 and 191 of the FCFCOA Act make it very clear the Court has an overarching purpose of attempting to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. They focus on the efficient use of Court resources and efficient disposal of cases that come before the Court to carry out the work in a timely manner, and to conduct the Court in such a way as to best promote the overarching purposes. It is important that litigants take into account these purposes and ensure that they conduct their litigation in a manner that does not cause unnecessary use of Court resources or their own resources.
[…]
27.The new Court system of having Registrars undertake interlocutory work should not be treated as an invitation to simply lodge review applications without careful consideration of the need for a review application, and the importance of properly using the Court’s resources. A Registrar’s hearing should not be used as a ‘dry run’ or a ‘practice run’ at a case, but rather the main event, with a review application there in the background, in a similar way to that of an appeal if it were a judge dealing with the matter. If the system is not approached in this manner, then litigants and practitioners can expect costs and other consequential orders, to ensure that the processes of the Court are not misused or wasted.
(Emphasis added)
In Accardi & Russo [2022] FedCFamC1F 253 when dismissing review applications made by both parties to review orders made by a Senior Judicial Registrar, Justice McGuire said at [51]:
51.Finally, by way of general comment, and being mindful that the process of Review from decisions of Judicial Registrars and Senior Judicial Registrars, where the hearing is de novo, it should not, in my view, become the situation where a person unsuccessful or aggrieved on the determination of the Registrar should automatically seek a “second grab” hearing without first properly assimilating and considering the reasons for the decision of the Judicial Registrar. […]
(Emphasis added)
The Court does not determine whether the decision of a registrar was made in error. In Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39], the New South Wales Supreme Court described a de novo hearing or review application as follows:
[…]
(b)It is unnecessary for the applicant for review to demonstrate any material error of fact or principle in the order under review.
[…]
(e)Although on review, the Court should consider the matter afresh, it does not follow that the reasoning of the registrar should be ignored, or that variations in the material presented to her, or him, and the evidence that was adduced are irrelevant. The starting point is, therefore, the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. The court will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946 at [24] – [26].
The real question Is whether there are any grounds, or any reasons, which would warrant a review of the orders that have been made by the registrar: Al-Shennag v Statewide Roads Pty Limited at [47].
[…]
(Emphasis added)
In Newman & Tate [2020] FamCA 1114, Deputy Chief Justice McClelland considered the nature of a review of a Registrar’s decision at [9] to [11], concluding as follows, at [12]:
12.Accordingly, my task is not one of ascertaining whether in the making of the Order, there was an error on the part of the Registrar. The review of a Registrar’s determination is an original hearing in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley [2019] FamCA 101 at [7]. Thus the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at 71 [43].
Injunction Applications
The Court has the power pursuant to s 114(2A)(c) of the Family Law Act 1975 (Cth) (Act) to:
make such order or grant such injunction as it considers proper with respect to the property of the parties to the de fact relationship or either of them
In Farr & Farr [1976] FamCA 72; (1976) FLC 90-133 (Farr), Murray J at [22] determined that “proper” means reasonable and just in the circumstances.
The Full Court of the Family Court in Tsiang & Wu [2019] FamCAFC 128 (Tsiang & Wu) considered the making of injunctive orders to preserve assets pending the final determination of the proceeding. The Full Court summarised the key principles for consideration when deciding whether or not to grant an injunction as follows:[40]
(a)The grant of an injunction is discretionary. A purpose is to preserve the status quo pending resolution of the dispute. An applicant must demonstrate that there is a serious issue to be tried;
(b)The applicant must demonstrate that the balance of convenience favours the grant of the injunction;
(c)The applicant must first establish a prima facie cause of action against the respondent and second, that if the assets are disposed of the applicant will not able to have the judgment satisfied;
(d)The court must take a qualitative evaluation of the evidence to see if there is a sufficiently serious risk of frustration to justify the granting of the injunction;
(e)It is unnecessary to demonstrate a positive intention, but merely the possibility of the event occurring. The determination about the balance of convenience may therefore be an inference drawn from the facts and circumstances established by the applicant’s evidence;
(f)It is not the role of the judge determining the question of the injunction to, at this interim stage in effect conduct a trial of the disputed evidence to resolve those disputes; and
(g)The risk of dissipation must be real and not merely theoretical.
[40] Tsiang & Wu [2019] FamCAFC 128, [20]-[23] and [25]-[27].
In Sieling the Full Court of the Family Court said, at [79]:
79.The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction that is necessary to achieve the protection of the applicant’s interest. […]
CONSIDERATION
Order 10
I turn first to consider Order 10 of the Registrar’s Orders. The Applicant identified Order 10 as being the primary issue in the Review Application, wherein the Applicant was ordered to pay $27,000 into D Law Firm trust account, pending further order of the Court or any written agreement of the parties.[41]
[41] Transcript P6:L29-31; Applicant’s 8 November 2023 Outline of Case, Part D ‘Outline of contentions’, [2].
The Applicant’s main contentions in relation to Order 10 were that: he has never had $27,000 in Ms C’s safe, although he conceded that he had $22,864 in his possession at the time of separation; that these funds had been “dissipated into the new company with full explanation”;[42] and that an order for him to pay such an amount of money is neither fair and equitable, nor aligns with the principles espoused by the Court in Sieling.
[42] Transcript P6:L42-45; Applicant’s 8 November 2023 Outline of Case, [2], [3] and [5].
For the reasons that follow I am unable to agree with the contentions of the Applicant and I now provide my reasons.
At the commencement of the Review Hearing the Applicant submitted (Cash Submission):[43]
My position today, firstly, I refer to order (10), requesting I place $27,000 in the respondent’s previous law firm trust. This is the primary issue of today for several reasons. Number 1, I have found no mention of this $27,000 in the respondent’s affidavits.
[43] Transcript P6:L29-L40.
The Cash Submission was a submission without any foundation. The issue of the amount of approximately $27,000 in cash under the control of the Applicant has been raised in the Respondent’s material regularly since the Respondent filed the Response to Initiating Application on 2 December 2022. Reference to this issue is contained in the following documents filed by the Respondent:
(a)The Response to Initiating Application, ‘Interlocutory orders sought by you the respondent’, [5b], Annexure “A”, paragraph [19] (reference to $26,700);
(b)The Respondent’s 2 December 2022 Affidavit at: paragraph [12] and Annexure “A” ‘De facto Wife’s Balance Sheet’, item 13 (reference to $26,700); and paragraph [119] (reference to $27,000);
(c)The Respondent’s 8 December 2022 Outline of Case, Part E ‘Minute of orders sought’, Annexure “A”, paragraph [19] (reference to $26,700);
(d)The Respondent’s Application in a Proceeding, Part D ‘The orders you are seeking’ and Annexure “A”, paragraph [3] (reference to $27,000);
(e)The Respondent’s 22 March 2023 Affidavit, paragraph [20] and Annexure “A” ‘De facto Wife’s Balance Sheet’, item 13 (reference to $26,700); and
(f)The Respondent’s 30 May 2023 Outline of Case: Part C ‘Issues in Dispute’ (reference to $27,000); and Part E ‘Minute of orders sought’, Minute of Orders Sought, paragraph [3] (reference to $27,000).
At the Review Hearing, immediately after the Applicant made the Cash Submission, I drew to the Applicant’s attention that I had found on the material filed by the Respondent, some seven (7) references to this issue.[44] The response that I received from the Applicant was:[45]
[…] I wish to make it clear. I do not have and have never had $27,000 in my mother’s safe. I have had $22,864 in my possession around the time of separation. The $22,864 has been dissipated into the new company with full explanation. $27,000 going to a lawyer’s trust fund has no effect on the respondent but will have an extreme hardship on me. I do not have $27,000 available to put in trust. That’s the primary reason I stand here today. I had $22,865 at the time of separation in cash funds total. The respondent had more than an estimated $22,000 in her personal bank account at time of separation. I call this a position of equal hardship.
[44] Transcript P6:L34-40.
[45] Transcript P6:L43-P7:L3.
The Applicant then proceeded to make submissions justifying his failure to comply with Order 10 on the basis that: the Respondent had not disclosed all her bank accounts; he is presently unable to borrow money; the Respondent has $1.4 million of assets under her control whilst he has only $100,000 of assets; the Respondent’s business owes Ms C a $9,000 debt; and the Respondent refused to pay the Applicant’s mother a salary of $4,000 for working for K Group after separation. The Respondent submitted that there was not equal hardship to warrant an injunctive order in accordance with the case of Sieling.[46]
[46] Transcript P7:L5-18.
Towards the conclusion of the Review Hearing the Applicant submitted:[47]
And yet, the respondent and their team still persist on putting this arbitrary figure of $27,000 up. If you look through all affidavits, you will see that I have always claimed I’ve never had $27,000 and to this day, I still claim that. So therefore, that is a blatant mistake on their behalf and sadly on Senior Judicial Registrar’s behalf for obviously taking on that as the number, in the sense that that number has never existed and has never been quantified by the respondent, even though I’ve given full disclosure.
[47] Transcript P17:L32-38.
Prima Facie Case
The parties separated in January of 2022. The Respondent has deposed that:
119.[In mid-]2022, [Mr Linford] refused to bank the sum of approximately $27,000 in cash which was income he had received from [his business], [O Business] [clients] paying in cash as well as buying and selling items and had placed it in a safe at home. I sent multiple emails and texts to [Mr Linford] about this. It was for this reason that [Mr V], the company accountant declined to continue to work with us as [Mr Linford] would not agree to treat this money as company drawings to him so there were concerns that [Mr Linford] was engaging in tax evasion. […][48]
[48] Respondent's 2 December 2022 Affidavit, [119].
The Respondent concedes that at the time of separation there was $22,864 in cash in Ms C’s safe located at her home and that this money was deposited into the Commonwealth Bank account …96 held in the name of B Pty Ltd “to start up the new business”.[49] Ms C has deposed that the sum of $22,864.65 was stored in her home safe in early 2022 and that all of these funds were subsequently paid into the account of B Pty Ltd.[50]
[49] Transcript P6:L43-P7:L3; Applicant’s 9 October 2023 Affidavit, [6] and Annexure “A”.
[50] Affidavit of Ms C, sworn 13 November 2023 (being Annexure “I” of the Applicant’s 10 December 2023 Affidavit), [4], [7]-[10].
The Applicant commenced trading as Linford Group in early 2023. The Applicant is the sole Director and shareholder of B Pty Ltd. The Applicant concedes: that Linford Group “is effectively one and the same as [K Group]”; and that Linford Group is using all of the assets of K Group.[51] The Applicant informed the Respondent in early 2023 that: K Group was no longer trading; K Group no longer leased the Suburb M Warehouse and that Linford Group now leased the Suburb M Warehouse and had moved in; the staff that were employed by K Group were now employed by Linford Group; and that the Respondent was prohibited from attending the Suburb M Warehouse.[52] As a result of the Applicant’s actions the Respondent stopped receiving her weekly wage of $1,290 (gross) and superannuation contributions.[53]
[51] Applicant’s 25 May 2023 Affidavit, [40] and [41].
[52] Respondent’s 22 March 2023 Affidavit, [26] and [32].
[53] Respondent’s 9 June 2023 Affidavit, [17], [39] and [40].
Therefore in early 2023 the Applicant arranged for the assets of K Group to be placed under his sole control. The Applicant embarked upon this course of action after the 20 December 2022 Consent Orders were made and before the 23 March 2023 directions hearing, when the balance of the interim issues in dispute between the parties were to be further considered. The interim issues that remained in dispute included the Applicant’s application to be appointed as the sole director of J Pty Ltd and that the Respondent be restrained from having any involvement in the operation of K Group.[54] The Applicant has justified his behaviour as follows:[55]
(a)The Respondent’s alleged disruptive behaviour;
(b)That the 20 December 2022 Consent Orders did not contain any restraint on the Applicant: operating his own business; or using the assets of J Pty Ltd for any other purpose; and
(c)The Applicant was able to take control of the assets of J Pty Ltd because he already “had control” of these assets; and
(d)Even though the Respondent had been deprived of her wage from J Pty Ltd, she had “ample income at her disposal and has no need for this wage”.
[54] Initiating Application filed by the Applicant on 4 October 2022, Annexure to Initiating Application-Orders Sought by the Applicant, ‘3. Interlocutory orders sought’, 1-4 and 8; Applicant’s 13 December 2022 Outline of Case, Part C ‘Issues in Dispute’, [1] and [2].
[55] Applicant’s 9 October 2023 Affidavit, [6] and Annexure “C”.
These arguments are not persuasive, particularly in the context of the proceeding at the time where both parties were legally represented and interim issues remained for before the Court, being whether the Applicant should be appointed the sole director of J Pty Ltd and whether the Respondent be restrained from having any involvement in the operation of K Group. It is blatantly clear that the Applicant has engaged in a ‘phoenix’ enterprise when establishing Linford Group with the assets of K Group.
By reason of the foregoing, I conclude that there is a serious issue to be tried and that the Respondent has established a prima facie case against the Applicant.
Risk of Disposal of the Funds
The Respondent is the guarantor for all the liabilities on the vehicles which were operated by K Group and her home the Suburb G Property is also security.[56] All vehicles and large assets owned by K Group remain in the possession of the Applicant and those items are being used by the Applicant to operate Linford Group.[57]
[56] Affidavit of the Respondent, sworn and filed on 9 June 2023 (Respondent’s 9 June 2023 Affidavit), [41]; Registrar’s Orders, Notation E.
[57] Respondent’s 23 March 2023 Affidavit, [42] and [51]; Respondent’s 9 June 2023 Affidavit, [37].
The Respondent has deposed that after separation and whilst the Applicant was still working for K Group, she became concerned that the Applicant was undertaking separate private work using the assets of K Group. The Respondent discovered electronic invoices that used Ms C’s address as the business address for K Group and bank account details that were not the bank account details for K Group.[58] The Applicant issued invoices in late 2022 and early 2023 in his own name, before commencing work for Linford Group. This behaviour by the Applicant continued after the 20 December 2022 Consent Orders were made. The Applicant directed clients to pay these invoices into his personal account. The Respondent calculates that these invoices amounted to an income of more than $30,000.[59]
[58] Respondent’s 2 December 2022 Affidavit, [126].
[59] Respondent’s 22 March 2023 Affidavit, [52]; Respondent’s 9 June 2023 Affidavit, [6] and [7].
The Respondent has further deposed that she has become aware that smaller assets owned by K Group were being sold and that she saw items from the Suburb M Warehouse being listed for sale on a ‘Buy, Sell or Swap’ website. The Applicant had not consulted the Respondent about the sale of these items or has banked the cash received from any of these sales into the K Group bank account.[60]
[60] Respondent’s 9 June 2023 Affidavit, [33].
The Respondent has deposed:[61]
[…] [Mr Linford] has not been meeting all of the necessary expenses and I have no confidence that he will do so. I have no confidence in [Mr Linford] being honest about the income of the new entity. I’m very concerned about [Mr Linford] putting me into a position where [K Group] will be insolvent and I might be called upon to act in relation to the guarantees on the vehicles and even the security in my home at [Suburb G] which I had before I met [Mr Linford].
[61] Respondent’s 9 June 2023 Affidavit, [60].
I conclude that there is a serious risk to the Respondent that final orders may frustrated by the Applicant if the injunction is not granted.
Hardship to Each Party
The Applicant contends that the granting of the injunction would cause him extreme hardship.[62]
[62] Transcript P6:L43-P7:L3
The Applicant’s 4 October 2022 Financial Statement, which was prepared by the Applicant’s Solicitors, discloses that the Applicant’s: total weekly income was $1,290 as salary from J Pty Ltd; total weekly personal expenditure was $1,304; total property owned was $58,053; total liabilities was $368,853; and the total financial resources was $40,000.[63]
[63] Applicant’s 4 October 2022 Financial Statement, Part B ‘Financial Summary’, [2]; Part D ‘Your income’, [9].
The Applicant’s 4 October 2022 Financial Statement makes no mention of a business that the Applicant operates ‘W Business’, formerly known as ‘X Business’, a retail store which was purchased during the relationship for $50,000.[64]
[64] Affidavit of the Applicant, sworn and filed 7 November 2023 (Applicant’s 7 November 2023 Affidavit), [12] and Annexure “D”. It is noted that in January 2024 ‘Y Business’ on the internet stated that: the owner of this business was [B] Pty Ltd; its address was Z Street, Suburb AA (Ms C’s home address) and that the sales figures as at late 2023 were “$919,651 (modelled)”.
The Applicant has deposed that he received the Inheritance in the sum of $103,121 in early 2023.[65]
[65] Financial Statement filed by the Applicant 28 September 2023 (Applicant’s 28 September 2023 Financial Statement), Part O ‘Additional information’, [4].
In the Applicant’s 25 May 2023 Affidavit the Applicant deposed that he held funds in the sum of $83,000 from the Inheritance.[66] Therefore on the Applicant’s evidence, in approximately six (6) weeks the Applicant had spent $20,656 from the Inheritance.
[66] Applicant’s 25 May 2023 Affidavit, [3].
In the Applicant’s 21 September 2023 Affidavit the Applicant deposed that he received the Inheritance and that “in accordance with my Christian belief and my heart for other people” he wished to donate a percentage of this benefit. The Applicant deposed that he travelled to Country E on three (3) occasions, partly for holidays as well as for missionary work.[67] The Applicant did not depose at that time as to when the Inheritance was received, how much he received or when he travelled to Country E. The Applicant deposed that he transferred the sum of $9,050 into “another person’s account” in relation to his trips to Country E.[68] The Applicant did not identify the account holder of the account into which he paid these moneys.
[67] Applicant’s 21 September 2023 Affidavit, [4].
[68] Applicant’s 21 September 2023 Affidavit, [5].
In the Applicant’s 21 September 2023 Affidavit the Applicant also deposed that he had spent $23,400 of the Inheritance on building works on a house in Country E.[69] The Applicant does not identify the owner(s) of the house where the building works took place. The Applicant also deposed that he made a loan of $19,900 to his current Country E partner which is “to be paid back to me at some stage”.[70] The Applicant has also sent a further $500 to his partner’s Country E account to cover her costs whist she is in Australia.[71]
[69] Applicant’s 21 September 2023 Affidavit, [6].
[70] Applicant’s 21 September 2023 Affidavit, [7].
[71] Applicant’s 21 September 2023 Affidavit, [9].
The Applicant further deposed in the Applicant’s 21 September 2023 Affidavit that:[72]
8.I have also made a regular contribution to the [Country E] as a Tithe on my wage. Since [mid]-2022 until now I have given $9600.
[72] Applicant’s 21 September 2023 Affidavit, [8].
The Applicant’s 4 October 2022 Financial Statement does not make any mention of a Tithe on the Applicant’s wage and the commencement of any regular voluntary payments by the Applicant to Country E from mid-2022.
The Applicant also deposes to: giving “my local church my tithe on a weekly basis”;[73] having “regular monthly giving to [BB Organisation]”;[74] and “monthly giving to the [CC Organisation]”.[75]
[73] Applicant’s 21 September 2023 Affidavit, [11].
[74] Applicant’s 21 September 2023 Affidavit, [12].
[75] Applicant’s 21 September 2023 Affidavit, [13].
The Applicant’s 28 September 2023 Financial Statement, which the Applicant prepared himself, discloses that: the Applicant’s: total weekly income was $1,290; total personal weekly expenditure was $1,163; total property owned was $48,782; total liabilities was $574,552; and the total financial resources was nil.[76]
[76] Applicant’s 28 September 2023 Financial Statement, Part B ‘Financial Summary’, [2].
The Applicant’s 28 September 2023 Financial Statement disclosed that the Applicant has $46,008.03 in a National Australia Bank (NAB) account.[77] As noted above, it also disclosed that the Applicant received the Inheritance in early 2023 in the sum of $104,121.[78]
[77] Applicant’s 28 September 2023 Financial Statement, Part I ‘Property owned by you’, [37].
[78] Applicant’s 28 September 2023 Financial Statement, Part O ‘Additional information’, [4].
The Applicant’s 28 September 2023 Financial Statement makes no mention of:
(a)The loan of $19,900 to the Applicant’s current Country E partner;
(b)The payment of $24,400 for the building works in Country E;
(c)The regular donations to: Country E; the Applicant’s Church, to BB Organisation and to the CC Organisation; and
(d)The W Business.
I conclude that the Applicant’s 4 October 2022 Financial Statement and the Applicant’s 28 September 2023 Financial Statement are unreliable documents in relation to representing the Applicant’s accurate financial position.
A significant aspect of the Applicant’s 28 September 2023 Financial Statement is that it is apparent that between 4 April 2023 to 28 September 2023, during the course of this proceeding, the Applicant dissipated $57,112.97, most of which he claims to have given away. I have come to this conclusion on the basis of the following. The Applicant’s 28 September 2023 Financial Statement disclosed that: the Applicant received the Inheritance in early 2023 in the sum of $104,121;[79] and as at 28 September 2023 the Applicant had $46,008.03 in a NAB account.[80] The difference between these aforementioned amounts is $58,112.97.
[79] Applicant’s 28 September 2023 Financial Statement, Part O ‘Additional information’, [4].
[80] Applicant’s 28 September 2023 Financial Statement, Part I ‘Property owned by you’, [37].
During submissions, the Applicant appealed to the Court saying “My grandmother’s estate is rapidly dwindling while I fight under my restricted situation of property settlement”.[81] The Applicant on the evidence that he has filed in this Court, has given away a significant part of the Inheritance by his own personal choice. I also refer to the Applicant’s submission towards the conclusion of the Review Hearing, where he complained that he did not have enough money to pay the Applicant’s Solicitor’s Account of $42,000.[82] Again on the evidence that the Applicant has filed in this Court, he has chosen to give away money and not pay the debt he owes to the Applicant’s Solicitors.
[81] Transcript P9:L27-28.
[82] Transcript P16:L31-34.
Therefore on the evidence that the Applicant has filed in this Court I am not persuaded in relation to the Applicant’s contentions that the granting of the injunction would cause him extreme hardship.
Summary Injunction Application
The Applicant is particularly aggrieved that the sum of $27,000 was specified in the Registrar’s Order in Order 10. The difference between the amount of cash that the Applicant concedes that he held in his possession at the time of separation, being $22,864 and the amount specified in Order 10, being $27,000 is $4,136. Given the quantum of the possible property pool, this is a very small amount. It is not possible for the Court to determine on an interim basis, where there is no cross examination of the parties, as to what amount was held by the Applicant. It is not my role as the Judge hearing an interlocutory application for an interim injunction, to in effect conduct a trial of the disputed evidence to resolve this of issue of dispute: Tsiang & Wu at [26]. This will be a matter for the Trial Judge, in the event that the Trial Judge considers that it is necessary to make any determination of this matter.
The purpose of an interim injunction is to preserve the status quo pending the resolution of the dispute: Tsiang & Wu at [20].
For the foregoing reasons I am satisfied that the injunction proposed by the Respondent satisfies the balance of convenience. I am also satisfied that in accordance with s 114(2A)(c) of the Act that the making of such an order is ‘proper’. In determining the meaning of ‘proper’, I have adopted the meaning in Farr at [22] and consider that Order 10 to be reasonable and just in the circumstances.
I intend to make a minor amendment to Order 10. The evidence of the Applicant and Ms C is that the cash has been transferred to an account held by B Pty Ltd. Accordingly I will delete the reference in Order 10 to the cash being currently held by Ms C. Further, as the Respondent has changed solicitors, reference in Order 10 will be amended to refer to the Respondent’s Solicitors instead of to D Law Firm.
11 December 2023 Orders
In light of my findings above in relation to Order 10 I will discharge the 11 December 2023 Orders. The 11 December 2023 Orders relate only to Order 10. It will be a matter for the Respondent’s Solicitors as to whether they want to pursue the Enforcement Application and the Third Party Debt Notice. It is not within my jurisdiction as the Judge hearing the Review Application to determine this issue.
Orders 2, 3(a) and (c) and Order 5
I now consider Orders 2, 3(a) and (c) and 5 of the Registrar’s Orders. The Applicant seeks the amendment of Order 2 and the discharge of Orders 3(a) and (c) and Order 5. The Applicant’s contention with respect to these Orders is that B Pty Ltd operates using the accountancy recording program MYOB. The Applicant considers that if the Respondent has access to the MYOB program this will be sufficient information for the Applicant. The Applicant also contends that these Orders place an unreasonable administrative burden upon him to comply with them.[83]
[83] Applicant’s 9 October 2023 Affidavit, [10] and [11]; Applicant’s 8 November 2023 Outline of Case, Part D ‘Outline of contentions’, [9]; Transcript P7:L20-P8:L6.
In my view Orders 2, 3(a) and (c) and 5 of the Registrar’s Orders are appropriate Orders. They give the Respondent regular access to primary source information in relation to the operation of Linford Group. This is particularly important in circumstances where the Applicant is operating Linford Group as a phoenix enterprise with the assets of K Group.
Orders 8 and 9
I now consider Orders 8 and 9 of the Registrar’s Orders. The Applicant seeks the amendment of Order 8 and Order 9(b).[84]
[84] Applicant’s 9 October 2023 Affidavit, [12] and [13]; Applicant’s 8 November 2023 Outline of Case, Part D ‘Outline of contentions’ [10]-[15]; Transcript P8:L8-P9:L7.
In my view Order 8 of the Registrar’s Orders is an appropriate Order. It is an Interim Order and it will be a matter for the Trial Judge what adjustment, if any, is to be made in relation to the alleged depreciated value of Motor Vehicle 5 which has been in the Wife’s possession.
In my view Order 9(b) of the Registrar’s Orders is an appropriate Order. The purpose of the order is the preservation of assets until the final hearing. The amendment proposed by the Applicant would not achieve this purpose. I nevertheless intend to amend Order 9(b) to refer to the Respondent’s Solicitors instead of D Law Firm.
Notation E
I now consider Notation E of the Registrar’s Orders. The Applicant seeks the deletion of sub‑paragraph (d) of Notation E. In my view Notation E is appropriate and in this respect I refer to the discussion above in relation to Orders 8 and 9(b).
COSTS
In the Response to Review Application the Respondent seeks an order that the Applicant pay her costs of and incidental to the Review Application.[85]
[85] Response to Review Application, Part B ‘The orders you the respondent are seeking’, [4] [2].
At the Review Hearing Counsel for the Respondent made some general submissions in relation to the quantum of costs sought by the Respondent.[86] I note that at the Review Hearing the submissions made by Counsel for the Respondent did not include any costs incurred as a result of the subsequent Enforcement Mention. The Applicant responded to these submissions by submitting that he could not pay any costs ordered.[87]
[86] Transcript P14:L29-P15:L11.
[87] Transcript P17:L38-42.
In circumstances where the Respondent has been successful in opposing the Review Application and the 11 December 2023 Orders are to be discharged, it is appropriate that the parties have an opportunity to make submissions in relation to s 117 of the Act and for the Respondent to detail how any application for costs is made up and calculated. I will provide a period of 14 days from the date of publication of the Orders to be made pursuant to these Reasons for Judgment for the Respondent to file and serve written submissions on costs of no more than five (5) pages, should the Respondent wish to pursue a costs application. I will also provide for a period of an additional 14 days after receipt of the Respondent’s costs submission, for the Applicant to respond by submission of no more than five (5) pages. Any application by the Respondent for her costs of and incidental to the Review Application and the Enforcement Mention will be determined on the papers unless otherwise ordered.
CONCLUSION
Accordingly, for the reasons herein, the Review Application is varied as discussed above and otherwise dismissed and the 11 December 2023 Orders will be discharged.
Orders will be made accordingly.
I certify that the preceding [One hundred and forty-four] (144) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C. E. Kirton KC. Associate:
Dated: 25 January 2024
0
12
3