MACDUFF & MACDUFF

[2012] FamCA 303

FAMILY COURT OF AUSTRALIA

MACDUFF & MACDUFF [2012] FamCA 303

FAMILY LAW – INJUNCTIONS – Preservation of property – ex parte – where the wife gives evidence that the husband has transferred the parties’ funds to another account controlled by him, has removed the wife as a beneficiary of the family trust, and has threatened to dispense with the parties’ funds – where wife has provided an undertaking as to damages.

FAMILY LAW – INJUNCTIONS – Exclusion from matrimonial home – ex parte - where the wife gives evidence that the husband told her that he would move back into the family home and that “there will be a siege”.

APPLICANT: Ms MacDuff

RESPONDENT: Mr MacDuff

FILE NUMBER: SYC 1828 of 2012

DATE DELIVERED: 3 April 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 3 April 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: York Family Law

SOLICITOR FOR THE RESPONDENT: Without Notice

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the husband be restrained by injunction from dealing with, drawing, transferring, withdrawing or in any way operating on:

   (a)Term Deposit with the Commonwealth Bank account identification no. …72 being a Term Deposit account in the name of the husband, Mr MacDuff, in the sum of about $1.5million;

   (b)the sum of or balance of $300,000 in respect of an account with the Commonwealth Bank account in the name of Mr MacDuff, BSB. …, account no. …78.

2. That for the purpose of these orders:

   (a)"Companies" means the following companies that the husband has an interest in:

   (i)X Group Pty Limited;

   (ii)X Group Holdings Pty Limited;

   (iii)X Limited (Foreign Co);

   (iv)R Pty Limited;

   (v)H Finance Pty Limited;

   (vi)J Pty Limited;

   (vii)any other company that the husband has an interest in whether directly or indirectly including any company which the husband utilises to operate his recruitment business in any country outside of the Commonwealth of Australia including but not limited to the UK, USA, Japan, UAE, Hong Kong or China.

   (b)"Trusts" means

   (i)M Trust, also known as MC Trust;

   (ii)any other Trust which the husband has established whether directly or indirectly in any country overseas or in which the husband is the appointor, co-appointor, trustee, co-trustee or beneficiary.

   (c)“the K units” means the units situated at K, Sydney and owned by X Group Pty Limited being the properties in folio identifiers 1… and 7….

3. That the husband be restrained by injunction from drawing down, transferring, increasing any mortgage or overdraft facility whether in his name solely or jointly with any other person or in the name of any of the Companies or Trusts including those facilities with HSBC secured over the property at A Road, Suburb M property or the K units without prior order of the court.

4. That the husband in his capacity as a director and/or a shareholder of the Companies as well as X Group Holdings Pty Limited be restrained by injunction from in any way dealing with, drawing, transferring, withdrawing or in any way operating upon the credit bank account of X Group Holdings Pty Limited which has the effect of reducing the said company’s bank balance below $5million.

5. That the husband, personally, by his attorneys, as a director of any of the Companies, in his capacity as a shareholder in any of the companies and/or in his capacity as an officer of the Trusts is restrained (save for the purpose of giving effect to these Orders) from:

   (a)resigning as a director and secretary of any of the Companies;

   (b)appointing further directors or secretaries of any of the Companies;

   (c)transferring or causing to be transferred any shares in any of the Companies;

   (d)issuing or causing to be issued any further shares in any of the Companies;

   (e)causing a change to the Trustee of the Trusts or the resignation of any of the Trustees of the Trusts;

   (f)doing anything to alter to the Trust Deed of the Trusts and/or the officers of the Trusts;

   (g)causing any of the Companies or the Trusts to dispose of any underlying asset except in accordance with these Orders or in the ordinary course of business;

   (h)unless otherwise agreed in writing by the husband and the wife, making loans or causing the Trusts or Companies to make loans to third parties or to the husband;

   (i)unless otherwise agreed in writing by the husband and the wife, further encumbering, charging, selling, dealing with or transferring any interest in any real property including right as a mortgagee whether such real property be owned by the husband personally or by any of the companies or Trusts;

   (j)unless otherwise agreed in writing by the husband and the wife, transferring any interest in the recruitment business which is conducted through X Group Holdings Pty Limited and/or various entities in Australia or overseas.

6. That the wife have exclusive occupation of the property known as A Road Suburb M and that the husband is not to enter past the gate of the property unless invited by the wife by way of sms text message.

7. That the husband be restrained by injunction from removing or causing to remove from the wife’s possession the motor vehicle that the wife drives.

8. That a copy of these Orders be served upon the Commonwealth Bank and the HSBC Bank.

IT IS DIRECTED

1. That service be effected upon the solicitors for the husband by 4pm this day.

2. That the matter be listed for mention before the Honourable Justice Rees at 3pm on Thursday 5 April 2012.

IT IS NOTED that publication of this judgment under the pseudonym MacDuff is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1828 of 2012

Ms MacDuff

Applicant

And

Mr MacDuff

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before the Court on an ex parte application for the making of orders to protect assets.

2. The application of the wife was filed on 29 March 2012 and before me today the solicitor for the wife seeks orders in terms of paragraphs 3 to 6, 12 to 15 and paragraph 18 of that application.  I am satisfied having read the affidavit sworn by the wife on 29 March 2012 that it is appropriate to deal with some of the matters ex parte in the following circumstances. 

3. The wife gives evidence that on 6 November 2011 the husband withdrew by way of transfer the sum of $1,500,000 from the Commonwealth Bank and transferred these funds to another account controlled by him.  On 12 January 2011, the husband withdrew a further $336,187.56 to another account controlled by him.  In neither case was the wife advised.

4. The husband has removed the wife as a beneficiary of the family trust and on 30 January 2012 there was a conversation between the husband and the wife where, she says, he said to her, “All the money is mine.  You cannot get it and if you try I will go to Vegas and blow it all.” 

5. The wife further gives evidence that the husband has told her he will move back into the family home and “there will be a siege”.  I am satisfied having regard to that evidence, and having in mind the undertaking as to damages which is proffered by the wife, that it is appropriate to make orders protecting assets, and orders for the occupation of the family home as sought by the wife.

6. A further order which is sought by the wife is an order that the husband be restrained from travelling out of the jurisdiction in circumstances where the net asset pool of the parties, in Australia, I am advised, is approximately $4.2 million, and where the orders which I am about to make will require the company accounts not to be depleted below five million, having the effect that the assets in Australia will exceed $9 million, I am not satisfied that the evidence is such as to justify the making of an order restraining the husband from travelling.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 3 April 2012.

Associate: 

Date:  30 April 2012