Loomis and Ors and Thurston

[2015] FamCA 230

FAMILY COURT OF AUSTRALIA

LOOMIS & ORS & THURSTON [2015] FamCA 230

FAMILY LAW – PROPERTY – Interim –– Where an anti-suit injunction was ordered in the Federal Circuit Court which would restrain the second applicant from maintaining civil proceedings against the respondent in the United Kingdom – where the second applicant seeks a declaration that the Court did not have the power to issue that injunction – where the Court does have the power to issue an anti-suit injunction – where the declaration sought is refused – where interim orders are made – where the remaining orders sought are dismissed or should be determined as part of the substantive proceedings.

Family Law Act 1975 (Cth)

FIRST APPLICANT: Mr Loomis

SECOND APPLICANT: L Ltd

THIRD APPLICANT: C Pty Ltd

RESPONDENT: Ms Thurston

FILE NUMBER: BRC 1010 of 2012

DATE DELIVERED: 7 April 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 8 December 2014

REPRESENTATION

THE FIRST APPLICANT: Mr Loomis In Person

FOR THE SECOND APPLICANT
AND THIRD APPLICANT: Mr Loomis in Person

SOLICITOR FOR THE RESPONDENT:  Ms Kovacs
Caldwell Solicitors

Orders

1. That the substantive applications for final relief in this matter be listed before his Honour Justice Forrest for further mention and for the making of trial directions at 2.15 pm on Tuesday, 28 April 2015.

1. That the application for leave to cause a further subpoena to issue directed to Ms Y be listed for further consideration at the further mention of this matter before me on 28 April 2015.

1. That any amount still owed by the Loomis-Thurston Super Fund to the accountants, MM Super Pty Ltd of Suburb NN, Queensland, be paid forthwith from funds held in trust in the name of the Loomis-Thurston Super Fund by Mitchell Lawyers pursuant to previous Orders of this Court and the said solicitors are hereby authorised to pay any such amount from those funds.

1. That the Respondent forthwith provide the Applicant, in writing, with the details of the full name of the man known to her as Mr LL and his current residential and business addresses to the extent that she has knowledge of such information.

1. That all other applications for interim orders sought by the Second Applicant in the Amended Application in a Case filed 8 December 2014 are dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1010 of 2012

Mr Loomis

First Applicant

And

L Ltd

Second Applicant

And

C Pty Ltd

Third Applicant

And

Ms Thurston

Respondent

REASONS FOR JUDGMENT

1. In this long running, highly conflictual litigation between these parties where competing property adjustment orders are sought, the matter was before me again in the judicial duty list on 8 December 2014. Listed for hearing that day was an Application in a Case filed by the Respondent on 6 August 2014, amended by a further Application in a Case filed by her on 21 September 2014 and also an Application in a Case filed by the Second Applicant company on 21 July 2014.

2. The Applicants opposed the Respondent’s application and the Respondent opposed the Second Applicant company’s application.

3. At the hearing on 8 December 2014, the solicitor who appeared for the Respondent informed the Court that the Respondent was no longer pressing for the orders that she sought in the amended Application in a Case but was seeking to have the substantive property proceedings listed for a trial as soon as could be accommodated by the Court with trial directions to be made.

4. At that same hearing, the Applicant, who appeared for the Second Applicant, informed the Court that the Second Applicant sought to file an Amended Application in a Case in which a large number of orders were sought on an interim basis. He also handed to the Court extensive written submissions in respect of that Amended Application in a Case.

5. I granted leave to the Second Applicant to file the Amended Application in a Case and the written submissions in support. I then made an order providing for the Respondent to file and serve any evidence she considered necessary to file in response to the affidavits relied upon by the Second Applicant and to file any written submissions she considered necessary to file on or before 23 December 2014. Those written submissions were filed on 18 December 2014. Further written submissions, purportedly in response to those filed on behalf of the Respondent, were filed on behalf of the Second Applicant on 22 December 2014.

6. The Respondent opposed all of the orders sought by the Second Applicant.

Disposition of the Orders sought by the Second Applicant

1. The first order sought by the Second Applicant is, in my view, fairly described as an order in which an “add back” of funds to the “matrimonial pool” (to use the words of the Second Applicant) is sought along with a determination that any such funds be treated as “already received” by the Respondent, presumably as part of a determination of property adjustment orders in the matter.

2. Such an order is, in my view, plainly a matter to be determined as part of the substantive proceedings between the party and to be left to the trial judge. I will not even begin to consider it at this interim stage.

3. The second order sought is for there to be “no interim distribution” to the Respondent until the outcome of “pending proceedings within Australia and the UK”.

4. The “pending proceedings” that the Second Applicant refers to within Australia are not clear to me. The ones that he refers to within the UK are civil proceedings commenced by the Second Applicant in the UK in which recovery of monies said to be owed by the Respondent to the Second Applicant is sought. Those proceedings were apparently commenced by the Second Applicant in a UK Court in May, 2013. Furthermore, pursuant to previous orders made, there is over $600,000 held in trust for the parties by Queensland solicitors pending the determination of these property adjustment proceedings.

5. Clearly then, the Second Applicant seeks an order that the Respondent have no interim distribution of money from those funds held in trust pending the outcome of the UK proceedings. Relevantly, however, Judge Howard of the Federal Circuit Court of Australia, Brisbane Registry, issued an injunction on 18 September 2013 restraining the Applicant, the Second Applicant and the Third Applicant from “instituting, maintaining, executing or otherwise enforcing any claim, entitlement or cause of action” against the Respondent. In my view, that injunction, whilst it remains in force, restrains the Second Applicant from maintaining the debt recovery proceedings in the UK. Clearly then, there is some apparent conflict between that injunction and the notion of the Respondent not receiving any distribution of funds pending the conclusion of those UK proceedings. The Second Applicant, however, also seeks declaratory relief in respect of that injunction, seeking to have this Court declare that there was no power to grant such an injunction in the first instance. That is, no doubt, appropriately considered as a prelude to seeking an order that the injunction be set aside.  I shall return to that issue, but firstly I consider that I can simply dispose of the Second Applicant’s application for an order that there be no interim distribution of funds to the Respondent at this point by observing, again, that the Respondent is not currently pressing any application for an interim distribution of funds. As she currently seeks no interim distribution there is no need, in my view, for an order that there be no interim distribution of funds to her. I will not make such an order at this time.

6. Returning to the issue of the power to prevent the Second Applicant from maintaining civil proceedings against the Respondent in the UK, as I have just outlined, the Second Applicant seeks a declaration that “the Family Court of Australia has no powers to prevent a UK Corporation from initiating and maintaining Civil Proceedings against the respondent mother” and refers specifically to proceedings the Second Applicant has against the Respondent in the High Court of Justice Queens Bench Division, District Registry.

7. As I have already noted, the injunction restraining all three Applicants from, inter alia, maintaining any claim or cause of action against the Respondent (appropriately called an “anti-suit injunction”, in my view) was issued by a Judge of the Federal Circuit Court of Australia. The Order records that it was made by the Judge after having heard counsel for all three Applicants and counsel for the Respondent, the Second and Third Applicants having been joined as parties to the proceedings by the Judge on the application of the Respondent on a prior occasion. I do not understand his Honour’s Order to have been appealed by the Applicants, or any of them.

8. With respect to Mr Loomis, who appears in this Court for the Second Applicant as its director, I consider, from a reading of his written submissions, that he is confusing matters to do with the merits of the granting of an anti-suit injunction with the issue of a court’s power to grant such an injunction. Whilst the Second Applicant seeks a declaration that there is no power to prevent it from maintaining proceedings in the UK against the Respondent, the written submissions go to matters that should have been, and, I expect, would have been considered when the anti-suit injunction was granted in the first instance. They ignore the reality that the High Court of Australia has determined that Australian courts do have the power to issue anti-suit injunctions in relation to foreign proceedings.[1] That the Second Applicant is a UK company incorporated under the laws of England and Wales is no bar to the making of an order that operates in personam against the company that has already submitted to the jurisdiction of the Court and which appears before the Court through its director. I am neither sitting in appeal against Judge Howard’s Order nor persuaded in any event that the decision to grant the anti-suit injunction is one that must be reversed at this point in time.

   [1]          CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

9. As a party to the substantive proceedings in this Court, the Second Applicant has the opportunity to argue its case that the Respondent owes it a substantial sum of money. The determination of that dispute appears to me to be one of the factual issues central to the determination of the substantive proceedings between the Applicant and the Respondent in this case. I am not persuaded that continued restraint against it pursuing UK Court proceedings against the Respondent is inappropriate. I will not be discharging Judge Howard’s Order.

10. The next seven orders sought by the Second Applicant are all orders that, in my view, could only be properly considered and made after a trial of the competing substantive applications. The relief sought includes indemnities and is prefaced on, inter alia, “full investigation” and matters “found to be in the opinion of the trial judge”. I will not make any of those orders at this point in the proceedings.

11. The next order sought is for forensic accountants to be appointed to examine and report on the books of the Second and Third Applicants, the parties’ self-managed superannuation fund, and a couple of other companies, as well as “the personal and joint accounts” of the parties and the Respondent’s mother and for the Respondent and her mother to pay the costs of that.

12. On 13 May 2014, after a previous interim hearing at which the Applicant was represented by counsel and the Second and Third Applicants were represented by the Applicant, I made orders for the valuation by single expert accountants of all of the shareholdings of the Applicant and the Respondent in the Second and Third Applicants and one of the other companies now referred to, as well as any loan accounts of them in those companies. It is not clear to me at this point whether those valuations have yet been obtained and, in any event, I have not seen them, but I am not persuaded that any further order appointing accountants to examine and report on “the books” of those companies or any other person is now required. I will not make such an order.

13. The next order sought is for the Respondent to be listed as a vexatious litigant and to be restrained from “instituting, initiating or maintaining proceedings under the Family Law Act without first having been granted leave”.

14. Before me, the Respondent did not press her applications and sought to have the substantive proceedings listed for trial as soon as possible. This does not appear to be the position of a litigant intent on confounding the other parties with endless litigation. I am not persuaded at this point that the Respondent should be declared vexatious. That is a view I consider I could only reach after a trial of all the issues in this matter. I will not make such an order now.

15. The next order sought is for the issue of subpoenas to eight different named persons and businesses. The written submission in support of the application for the issue of the subpoenas simply says:

    These parties are all relevant to the highly questionable sale transactions of the [Suburb GG] Properties See [Mr Loomis] Affidavit Filed 11 July 2014 Paragraphs 77-83

16. The evidence in those paragraphs appears to present Mr Loomis’s opinion that two real properties of the parties sold for far less than fair market value and that there was some conspiracy involving the Respondent and others in respect of the sales. It is people who he apparently considers were involved who he seeks to subpoena. In his evidence, Mr Loomis asserted that the two properties had been sold for $570,000 and $560,000. Documents that he attaches to his affidavit certainly appear to confirm that Property 1, Suburb GG was sold in December 2013 for $570,000 and that Property 2 sold around the same time for $560,000.

17. Mr Loomis also said in his affidavit that the Respondent had “sought and was granted orders in extremely ambiguous fashion … that the sales be approved by the court”. In this regard, I have found one order made by Judge Howard on 18 September, 2013, recorded as having been made with the consent of the parties and also recording that the Applicants were all represented by counsel that day, requiring the sale of the land at Property 1 for “no less than $550,000”.

18. That satisfies me that Mr Loomis thought that it was reasonable to sell that property at that time for no less than $550,000. Given that $570,000 was obtained for the property, I am at a complete loss to understand, without further evidence, the real basis for the opinion that this property was deliberately sold at less than fair market value. Given the lack of evidence about the other property as well, I am not persuaded that there is a reasonable basis to grant leave for subpoenas to issue to eight different persons and businesses to produce documents and give evidence about this issue. I will not grant such leave at this time.

19. The next order sought is for the present subpoena to the Respondent’s mother, Ms Y, to be enlarged to cover events since its issue in January 2014 and for Ms Y to be ordered to comply within 7 days of service.

20. The Applicant asserts that finances of the Respondent and her mother are “inextricably linked with Ms Y receiving large sums of money which originate from monies generated” in connection with a previous order. I am conscious of the fact that last year I heard evidence about the Respondent and her mother being closely connected in respect of the proposed purchase of a home for the Respondent in her mother’s name. I accept that it is reasonable for the Applicant to be permitted to seek the further production of documents from the Respondent’s mother that have come into existence since the last subpoena directed to her was issued by the Court. However, I consider that I need to hear submissions from Mr Loomis, in particular, as to the wording that the subpoena should include before I grant leave for it to issue. As I have determined to list the matter again for mention so as to determine trial dates and trial directions, I will hear submissions about that at that time.

21. The next order sought is for the Respondent’s mother to be added as a party to the proceedings. Despite the written submissions of the Second Applicant, it is simply not clear to me that there are reasonable grounds for the Respondent’s mother to be added as a party to the proceedings. Although it is alleged in the written submissions that large amounts of money are being paid “from the Mother” [the Respondent] to the Respondent’s mother, I do not understand what orders, if any, would be sought by the Second Applicant against the Respondent’s mother. I will not make an order joining the Respondent’s mother as a party at this point in the proceedings.

22. The next order sought is for a firm of solicitors to be appointed to act for the parties and to conduct litigation for them in respect of claims against Westpac Banking Corporation in connection with what are called “Lo-Doc loans on the [Suburb GG] Properties”.

23. The application for this order is supported by a written submission that says simply:

    There are moves in hand for a class action against the banks and a further $300,000 or more could be added back to the “matrimonial pool” in respect of the Westpac Mortgage. It is just and equitable that an independent party should have carriage of this.

24. Again, I am just not persuaded that the order sought by the Second Applicant is an appropriate one to make in this case at this time. There is insufficient linkage between any evidence that there is about this point and the submission that such an order should be made. I will not make it.

25. By the next, numbered Order 31, the Second Applicant seeks a bundle of orders described as “urgent… partly in consideration of the Application for a protection order to be heard on the 9^th of December 2014 in respect of vacating or discharging of existing orders”. Listed then are four orders previously made that are sought to be discharged along with an order for the summary dismissal of the amended application of the Respondent filed 21 September 2014 and an order that the Respondent is estopped from relying on “a purported Binding Financial Agreement dated the 13^th of February 2007”.

26. With respect to the Applicant who, I believe, has drawn the subject application and written submissions, this part makes little sense to me. I simply cannot understand the bases upon which he submits the orders sought should be made and, in such circumstances, I simply cannot make any of the orders. As the last of the orders sought in this part was for permission to be granted for the Applicant to copy and rely on reports and documents produced to this Court in other proceedings in the Magistrates Court on 9 December 2014 and that issue was not pressed urgently before me on 8 December 2014, I consider that the need for such an order has probably now passed. I will not make that order.

27. The next order sought is for the Respondent to be held in contempt of the Court. Clearly, it is deficient in terms of form and procedural fairness requires more than just the summary determination of such a matter as apparently proposed by the Second Applicant. I will make no such determination at this point in time.

28. The next order sought is for summary dismissal of an application of the Respondent for the sale of property owned by the Second Applicant in the UK.  As the Respondent does not seek such an order at this interim stage in the proceedings and the Second Applicant has not demonstrated that such an application, if pressed at the trial of the substantive proceedings, is doomed to fail, I will not summarily dismiss such an application at this point in the proceedings.

1. The next order sought is for an enforcement application that is said “to be filed in respect of” a previous order to be heard as soon as practicably possible.  

2. That is not an order that I consider appropriate to make. It is also deficient in form and not appropriately supported by reference to evidence properly before the Court. I will not make that order at this time.

3. The next order sought is for “outstanding Invoices from International Professional Services in connection with the [Loomis-Thurston] Superfund [to] be discharged from monies held in trust ... in the sum of $1,500.”

4. The self-managed superannuation fund of the Applicant and the Respondent, of which they are both trustees, has had accountants doing work on the preparation of the annual financial statements as required by law. Given the high conflict between the Applicant and the Respondent, unsurprisingly there was conflict and disagreement around the instructions given to those accountants, MM Super Pty Ltd, and around the information that could and could not be provided to them. MM Super Pty Ltd rendered invoices to the self-managed superannuation fund for work done. There was dispute about the amount charged on those invoices. The evidence supports a finding that the Respondent negotiated a reduced fee. The evidence also supports a finding that Mr Loomis objected to paying a share of the reduced fee, yet now he seeks an order that outstanding fees be paid from the monies held in trust.

5. I am of the view that fees incurred by the self-managed superannuation fund in having accountants undertake professional work for the fund on the instructions of one or both of the fund’s two trustees should be paid by the fund. As there is or should be money held in trust in the name of the fund, pursuant to a previous order made by me, I consider it appropriate to order that any outstanding amount still owing to the accountants for work done for the fund be paid out of that money forthwith.

6. The next order sought is for the Respondent to provide the full legal name and residential and business address for a man named Mr LL. He is said to be her partner or boyfriend or, at least, her former boyfriend. Mr Loomis makes allegations that he is an “underworld figure”. It is clear that Mr Loomis wishes to cause a subpoena to Mr LL to issue. He submits that Mr LL is listed by the Respondent in a trial plan filed by her in August 2014 as a witness in her case in the parenting proceedings in the Federal Circuit Court. It is submitted that as that is the case, the Respondent can have no objection to provision of the information that would enable Mr Loomis to seek to have a subpoena directed to Mr LL issued out of the Court. I consider it reasonable to order her to do that, to the extent that she has knowledge of same. It would not be reasonable to order her to provide that information to Mr Loomis if she does not know it herself. I do not consider it reasonable to order her to find that detail if she does not already have knowledge of it.

7. The next order sought is for the Respondent and her mother to provide security for costs in the minimum sum of $203,640. I will not make this order. The Respondent’s mother has not been joined as a party. There is no basis for an order against her for provision of security. Further, I have previously heard and dismissed application for the Respondent to provide security for costs for the Second Applicant and am, again on this application, not persuaded that the Respondent should provide security for costs on the further application of the Second Applicant.

8. The next three orders sought are also, in my view, matters that form part of the controversy between the parties to be dealt with on a final basis at a trial of the substantive proceedings. They seek that the Respondent be liable to pay compensation to the Second Applicant and the Second Applicant’s costs of the proceedings. A declaration of constructive trust in respect of the money used by the Respondent to pay her legal fees is also sought. I will not make the orders sought at this point.

9. The next order sought is for the discharge of another order made by Judge Howard in the parenting proceedings that are before him in the Federal Circuit Court on 4 December 2014 for some of the money held in the trust account of the Queensland solicitors to be used to pay private school fees of the child of the Applicant and the Respondent.

10. Although, as I have said in a previous judgment on an interim application in this matter, I am troubled that such an order might in fact be a child support order rather than a parenting order, raising doubt about the validity of such an order, as I have also said in this judgment, I am not sitting on appeal against orders made by his Honour. Any challenge to the validity or correctness of his Honour’s orders in the parenting proceedings that are before the Federal Circuit Court should be made by appeal to the Full Court not by application to this Court in the property adjustment proceedings. I will not discharge his Honour’s order. The date by which a trial of the property adjustment proceedings is likely to be heard (sometime this year, I expect) is another factor influencing me in deciding not to entertain the application to discharge his Honour’s Order.

11. The orders then sought numbered 42, 43, 44 and 45 are all relating to matters that I do not consider appropriate to determine at this interim point in the proceedings. They relate to matters that cannot be determined, in my view, without a trial and the opportunity for consideration of all the competing claims and counterclaims that a trial will provide. I will not make those orders sought at this time.

12. The next order sought is for the discharge of an order previously made by me. That order was for $269,043.45 of the funds held in trust by the Queensland solicitors to be paid into a bank account in the name of the self-managed superannuation fund of the Applicant and the Respondent and not to be drawn on without written agreement or earlier order of this Court.

13. The only submission made in support of the application for discharge of that order is that the Second Applicant’s claim will account for all of the money held in trust with any payment “into the Superfund” being said to “ring fence” the monies, partially defeating the Second Applicant’s claim.

14. My previous order had been made on the basis of acceptance of the assertion that so much of the funds of the said self-managed superannuation fund had been applied for purposes other than the provision of retirement benefits of the members of the fund, thus making the fund non-compliant with relevant statutory and regulatory provisions and that this could only be corrected by that amount going back into the superannuation fund’s assets. The Second Applicant does, not at this point, persuade me that such a position was incorrect and that the order should not have been made or should now be discharged. I will not make the order sought at this point in time.

15. The final order sought is for these proceedings in this Court to be stayed pending determination of the Second Applicant’s proceedings against the Respondent in the UK and pending the hearing of enforcement applications in respect of previous orders.

16. I will not make such an order. Firstly, as is already clear, I will not be discharging Judge Howard’s anti-suit injunction that restrains the Second Respondent from maintaining the UK proceedings against the Respondent. Accordingly, I will not stay these proceedings to allow those proceedings to conclude when any steps taken by the Second Applicant in the maintenance of those proceedings, prima facie, contravenes Judge Howard’s Order. Secondly, no enforcement applications in respect of the previous orders referred to in the application are before the Court, so there is no basis to even begin to consider staying the proceedings pending determination of any such applications. It appears to me, far more appropriate for any questions around enforcement of those previous orders to be dealt with as part of the final determination of the competing applications in the substantive proceedings.

17. Particularly given the time that has lapsed since the hearing on 8 December 2014 and the delivery of the written submissions by both parties and my desire to understand the actual state of readiness of the matter for trial, I will now list the matter for further mention before me at which time the listing of the matter for a final trial and the making of trial directions can be more thoroughly canvassed and more carefully considered.  

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 7 April 2015.

Associate:

Date:  7 April 2015