Martin and Martin

[2010] FamCA 652

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN [2010] FamCA 652

FAMILY LAW – INJUNCTIONS – Urgent interim hearing – Orders to be made by consent – Further discovery and inspection – Further documents to be filed

APPLICANT: Ms Martin

RESPONDENT: Mr Martin

FILE NUMBER: DGC 168 of 2010

DATE DELIVERED: 22 July 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 22 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davis

SOLICITOR FOR THE APPLICANT: Maria Barbayannis & Co

COUNSEL FOR THE RESPONDENT: Mr M.O’Connor

SOLICITOR FOR THE RESPONDENT: BJ O’Connor Lawyers

Orders

IT IS ORDERED BY CONSENT AND UNTIL FURTHER ORDER:

1. THAT the husband be restrained, both personally and by his servants and agents from transferring, dealing with, disposing of or otherwise diminishing the value of or dealing with any interest that he may have arising out of the concluded agreement for sale of the properties at 6 and 7 B Street in the State of Victoria (“B Street”) (pursuant to which the husband has lodged a joint caveat securing an interest pending settlement of the sale of those properties) and which continuing interest of the husband (as alleged) is said to arise from the agreement for sale entered into by and on behalf of himself, his brother M MARTIN and MARTIN & MARTIN PTY LTD and the various purchasers (as named by the wife in her application).

2. THAT the husband forthwith sign any documents, do all acts and things and take action as required to assign to the wife any and all ongoing interest or entitlement which he may have pursuant to that agreement for sale of B Street, all such interest to be held in trust by the wife on behalf of the parties pending further hearing or the finalisation of these proceedings.

3. THAT otherwise the husband be restrained both personally and by his servants and agents from transferring, dealing with, disposing of or diminishing the value of property or any interest or entitlement therein, either personally or in a corporate entity or trust save in the usual and ordinary course of business and then upon giving written notice to the solicitors representing the wife of his intention to so act.

IT IS FURTHER ORDERED:

1. THAT within twenty-eight (28) days the husband make, file and serve:

   (i)a response to the amended initiating application of the wife;

   (ii)a response to the application in a case filed by the wife;

   (iii)an affidavit in support of his response and in reply to the affidavit of the wife filed 19 July 2010;

   (iv)an updated and detailed financial statement.

2. THAT within twenty-eight (28) days, and subject to any objection properly taken by the husband or his solicitors, he provide or cause to be provided to the solicitors for the wife such of the documents as are identified in paragraph 9 of the wife’s application in a case as are within his power, possession or control or that of a company or trust under his control and beyond those documents already produced pursuant to the order of Registrar Riddiford made 20 May 2010.

3. THAT all extant applications of the wife be adjourned for hearing before Young J (and with a maximum two (2) hour period set aside therefore) on 9 September 2010 at 10.00 a.m.

4. THAT each of the responses to be filed by the husband are to be listed for hearing on 9 September 2010 at 10.00 a.m.

5. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the solicitors for each of the parties.

6. RESERVE the costs of each of the husband and wife of and incidental to the appearance at Court this day (and which occupied a two (2) hour hearing time) to the adjourned hearing date as provided for in these orders.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife and Solicitor appearing as Counsel for the husband.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  DGC 168 of 2010

MS MARTIN

Applicant

And

MR MARTIN

Respondent

REASONS FOR JUDGMENT

1. The matter of Martin has been listed as a duty list matter before me on short notice.  Mr Davis of counsel appears for the wife and Mr O’Connor is the solicitor instructed by the husband in his family law matters.  An application in a case was filed on behalf of the wife on 19 July 2010.  Time was abridged to enable that matter to be listed before me this day.  Specifically that application is endorsed by the Registrar on the basis that time was abridged only as to “orders 3-8 (inclusive) of the interim orders” and otherwise those orders, for which time has not been abridged, will need to be adjourned for hearing to a further date. 

2. Additionally the wife filed an amended initiating application and that matter generally seeks a settlement of property pursuant to section 79 of the Act.  That matter will remain consolidated with and adjourned to the date ordered.  By her interim application, the wife effectively seeks certain injunctive orders.  I have had discussions in Court with her Counsel and I will not order today, but will adjourn to another day, the order sought in paragraph 6 of that application.  Likewise, in respect of the orders sought in paragraphs 4 and 5 thereof, they are largely subject to the order in paragraph 3 and overlap the restraint sought against the husband, or a particular corporate entity which is the company Martin & Martin Pty Ltd of which the husband and his brother are shareholders and directors. 

3. The application was issued with a named second respondent, Martin Developments Pty Ltd, and hereafter, in paragraph 14 of the interim application, an order is sought for the joinder of that party as a respondent in the proceedings.  It may be that ultimately that is not a matter of dispute if the husband remains the only shareholder and director of that company, but that is not a matter of urgent concern to the parties at this hearing.  The wife has filed a substantial affidavit, which includes voluminous exhibits in support of her application.  This hearing proceeded on the basis that the husband was the sole respondent notwithstanding that the wife issued proceedings joining Martin Developments Pty Ltd as a second respondent and that issue, or the joinder of any other corporate entity are matters to be followed up by the wife’s solicitors, on instructions.  I make no orders or findings in that regard and the structure of the orders with only the husband as respondent is on the basis of the conduct of the hearing this day.

4. At the outset, it is proper to highlight that Mr O’Connor, with his client in court, consented to the interim orders in paragraphs 3 to 8 inclusive, but in particular, and in the discussions arising during the proceedings to the injunctive orders, sought in paragraphs 3, 7, and 8 thereof, subject to the issue of appropriate service within paragraph 7, a limitation upon the individuals to whom any such interim injunction could or should be pronounced.  I do not intend to set out the limited factual basis which has been provided to the court today. 

5. Suffice to say that at some previous date, the husband and/or others purchased properties at 6 and 7 B Street, for the purposes of a subsequent residential development thereof. 

6. Those properties were acquired in or about the 2005 calendar year.  The purchases were in the name of a corporate entity, Martin & Martin Pty Ltd (a company of the husband and his brother) and otherwise personally a residential property at number 6 B Street was seemingly bought by the husband and his brother. Subsequently, an offer to purchase was made by an arm’s length entity, and after negotiations, a price of $4.3 million, or thereabouts, was accepted.  The settlement of the sale of those properties to those various purchasers was said by Mr O’Connor to have occurred on or about 24 October 2008. 

7. In November of 2008, the husband received a sum of $1,030,000 approximately, and those moneys have been used to purchase and outfit a complex in N.  Again, all of those matters are subject to further and particular evidence.  Likewise, there may have been monies owing on mortgage to the Commonwealth Bank, or to Suncorp, which were paid out before the husband and/or his brother received any monies.  All of those matters again are subject to further evidence.  There does appear to be a final balance payment due pursuant to the contract of sale, and the date 24 October of this year was identified in court as the payment of the balance of purchase monies. 

8. The husband’s position is said by him to be that he has no continuing interest under that contract and all monies would be paid to his brother or otherwise pursuant to direction.  Again, those matters need further clarification.  Mr O’Connor acknowledged that the husband remained named on the joint caveat secured on the property for the settlement and payment of all moneys thereunder.  It is said that approximately $1.3 million remained to be paid, and the husband asserts that he has no right, interest, or entitlement in those monies.  That is a matter of ongoing dispute for further determination.

9. In the course of his brief submissions, and on instructions, Mr O’Connor has highlighted that the company Martin & Martin Pty Ltd is or may soon be placed into voluntary liquidation.  If that is the case, it is appropriate that the wife’s solicitors be given due notice of accounting or legal advice in that regard and a proper explanation of the reasons why that process would be undertaken at the direction of the husband and his brother or otherwise. 

10. The other matter that was aired today was the issue of discovery and inspection of the documents. Registrar Riddiford made orders on 20 May 2010 for documents to be provided by or on behalf of the husband and on or before 4 June of this year.  A draft copy of what was intended by those orders was provided by the husband’s solicitor to me, which I have read, and which document I have returned.  There are 10 items or classes of documents identified therein.  Mr Davis has foreshadowed an ongoing dispute as to whether there has been appropriate discovery and compliance with that order, and whether all documents have been disclosed.  That is not a matter that I will determine today. 

11. Paragraph 9 of the application in a case is not strictly before the court.  What I will, however, invite the husband to do, and subject to any proper objection to be taken by his solicitor on his behalf, is to conveniently provide, within 28 days, documents identified therein that are within his power, possession, or control, and which are either an update to the documents produced pursuant to the earlier order of the Registrar, or which are additional documents. 

12. The rationale for that decision is to provide appropriate basis for objection to the husband’s solicitor in respect thereof, but more importantly to try and move forward the production and disclosure of documents at a reduced or realistic cost to the parties.  I will separately provide a timetable for the husband to file a response both to the final orders sought and to the interim orders sought in the wife’s application in a case.  I will also provide an appropriate opportunity for the husband to give detailed and informed instructions to his solicitor in the proceedings so that both a substantial affidavit of the husband in reply to the wife’s affidavit, and otherwise generally, can be filed, and an updated financial circumstance affidavit, so that the true financial picture of the husband and his related commercial entities is fairly disclosed. 

13. I take the opportunity to highlight to the husband that such a document will hereafter be a document upon which he is most likely to be cross-examined.  It is fairly evident that it is in his interest to make whole and complete discovery of income, assets, investments, and liabilities therein.  I intend to relist this matter before me on 9 September 2010 at 10 am.  I do so without taking the matter into my docket.  At this stage I will list the matter only to follow up the documents filed and issues then ongoing in these proceedings by giving to the husband 28 days to file his further documents and to produce documents that are not the subject of objection.  That effectively means that on or about 20 August, those documents need to be filed with the court and produced to the wife’s solicitors. 

14. I intend otherwise to adjourn the application for final orders, together with the application in a case for interim orders, to that 9 September return date. I will have these brief reasons for judgment transcribed, placed upon the court file, and made available to both solicitors. I emphasise that at the outset, Mr O’Connor, on behalf of the husband, co-operatively acknowledged to the court that orders could be made by consent pursuant to paragraphs 3-8 inclusive of the interim application now before the court, and for that reason, I do not otherwise now make reference to the Family Law Act and the powers of this Court or to the basis upon which those orders are made, as they are made by consent.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: