Martello and Martello - [2017] FamCA 605

FAMILY COURT OF AUSTRALIA

MARTELLO & MARTELLO

[2017] FamCA 605

FAMILY LAW – PROPERTY – INJUNCTIONS – Interim – Preservation of property – Whether the Court should grant the injunctions sought by the wife against the husband to not sell or deal in any way with his interests in companies and trusts – Where the Court found that there is far greater risk of prejudice to the wife in not granting the injunctions sought by her – Where there is no urgency for the husband to sell his interests – Where the Court is satisfied that it is both just and convenient to grant the injunctions.

Family Law Act 1975 (Cth)

Blueseas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92-856
Broxham & Broxham [2012] FamCA 775
Mullen and De Bry (2006) FLC 93-293
Waugh and Waugh (2000) FLC 93-052

APPLICANT:

Ms Martello

RESPONDENT:

Mr Martello

FILE NUMBER:

BRC

526

2016

DATE DELIVERED:

18 August 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

24 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Minnery

SOLICITOR FOR THE APPLICANT:

Small Myers Hughes

COUNSEL FOR THE RESPONDENT:

Mr S. Williams

SOLICITOR FOR THE RESPONDENT:

Barry Nilsson

Orders

That until further Order, or unless agreed between the husband and the wife in writing, the husband (whether in his personal capacity, via an agent and/or in his capacity as a director and/or shareholder and/or in his capacity as a trustee and/or appointor) be restrained by injunction from selling, disposing of, charging, encumbering, alienating, assigning or diluting or dissipating his interest(s) in the below companies and trusts:
(i) Martello Pty Ltd ACN ...;
(ii)Martello Pty Ltd ACN … atf the Martello Family Trust;
(iii)B Pty Ltd ACN …;
(iv)C Pty Ltd ACN …;
(v)D Pty Ltd ACN …;
(vi)D Pty Ltd atf the Mr Martello Family Trust;
(vii)Martello Family Group Pty Ltd ACN …;
(viii)Martello Family Group Holdings Pty Ltd ACN …;
(ix)Martello Family Group Holdings Pty Ltd atf the Martello Family Group Trust;
(x)E Pty Ltd ACN …; and
(xi)E Pty Ltd atf the E Trust.
That the husband be restrained and an injunction is hereby granted restraining the husband from doing any act or thing or omission which causes a reduction in the value of any asset in which the husband and/or the wife have an interest at law or in equity.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FamCA 605
Decision Date: 18 August 2017

CaseChat Overview and Summary

In the matter of *Martello and Martello*, Forrest J of the Federal Court of Australia considered an application for interlocutory injunctions. The dispute concerned the preservation of assets pending final resolution of proceedings between the husband and wife. The wife sought orders to restrain the husband from dealing with various companies and trusts in which he held interests, or which were otherwise connected to the family's financial affairs.

The primary legal issue before the Court was whether the wife had established a sufficient prima facie case to warrant the grant of interlocutory injunctions restraining the husband from dissipating or diminishing the value of specified assets. This involved assessing the likelihood of the wife succeeding in the underlying proceedings and whether the balance of convenience favoured the granting of such injunctive relief to preserve the status quo.

Forrest J applied the principles governing the grant of interlocutory injunctions, requiring the applicant to demonstrate a serious question to be tried and that damages would not be an adequate remedy. The Court considered the nature of the assets in question, which included shares in various proprietary companies and interests in family trusts, and the potential for the husband's actions to prejudice the wife's claim to a share of those assets. The Court found that the wife had established a sufficient case for the grant of injunctions.

Consequently, the Court ordered that, until further order or written agreement between the parties, the husband be restrained by injunction from selling, disposing of, charging, encumbering, alienating, assigning, diluting, or dissipating his interests in a list of specified companies and trusts. Furthermore, the husband was restrained from taking any action or omission that would reduce the value of any asset in which either party had a legal or equitable interest.

Orders

Orders of the court

That until further Order, or unless agreed between the husband and the wife in writing, the husband (whether in his personal capacity, via an agent and/or in his capacity as a director and/or shareholder and/or in his capacity as a trustee and/or appointor) be restrained by injunction from selling, disposing of, charging, encumbering, alienating, assigning or diluting or dissipating his interest(s) in the below companies and trusts:

(i) Martello Pty Ltd ACN ...;

(ii) Martello Pty Ltd ACN … atf the Martello Family Trust;

(iii) B Pty Ltd ACN …;

(iv) C Pty Ltd ACN …;

(v) D Pty Ltd ACN …;

(vi) D Pty Ltd atf the Mr Martello Family Trust;

(vii) Martello Family Group Pty Ltd ACN …;

(viii) Martello Family Group Holdings Pty Ltd ACN …;

(ix) Martello Family Group Holdings Pty Ltd atf the Martello Family Group Trust;

(x) E Pty Ltd ACN …; and

(xi) E Pty Ltd atf the E Trust.

That the husband be restrained and an injunction is hereby granted restraining the husband from doing any act or thing or omission which causes a reduction in the value of any asset in which the husband and/or the wife have an interest at law or in equity.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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