Martin & Martin & Ors (No. 2)

[2013] FamCA 391

FAMILY COURT OF AUSTRALIA
AMENDED

MARTIN & MARTIN AND ORS (NO. 2) [2013] FamCA 391

FAMILY LAW – PRACTICE AND PROCEDURE – Interim injunction where argument arises that Court cannot alter its order on the basis of the “Slip Rule” as the Court was functus officio – Holding orders made.

Family Law Act 1975 (Cth)

APPLICANT: Ms Martin

RESPONDENT: Mr Martin

1^ST INTERVENER: X Firm

2^ND INTERVENER: QF Pty Ltd

FILE NUMBER: MLC 9829 of 2007

DATE DELIVERED: 3 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Taylor

SOLICITOR FOR THE APPLICANT: Cahill & Rowe Family Law

COUNSEL FOR THE RESPONDENT: Ms Goldberg

SOLICITOR FOR THE RESPONDENT:	Taussig Cherrie Fildes
COUNSEL FOR THE 1ST INTERVENER:	Mr Brown SC
SOLICITOR FOR THE 1ST INTERVENER:	Nedovic & Co
SOLICITOR FOR THE 2ND INTERVENER:	Ms Hopkins, Hopkins Lawyers

Orders

1. That on the oral application of the interveners, this matter is adjourned to 9.00am on 6 May 2013.

2. That on the oral application of X Firm, that until further order, the husband be and is hereby restrained from making any further borrowings within the B Group (including but not limited to Martin Pty Ltd and C Pty Ltd as is valued and identified by D Report) and the wife, by herself, her servants or agents be and is hereby restrained by injunction from encumbering or further encumbering any property registered in her name.

3. Reserve all parties’ costs of this day.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel including senior counsel, to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Martin and Ors (No. 2) 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 MELBOURNE

FILE NUMBER: MLC 9829 of 2007

Ms Martin

Applicant

And

Mr Martin

Respondent

And

X Firm

1^st Intervener

And

QF Pty Ltd

2^nd Intervener

REASONS FOR JUDGMENT

1. This is an oral application that I adjourn a mention of this case because there is an argument about whether or not the orders I made on 9 April 2013 should be amended under the slip rule.  It is not appropriate that I deal with the legal issue this morning because neither the wife nor the husband are in a position to argue it. 

2. There is a problem, and I am not entirely sure what it is, but on any view, in December 2010, the Court made an injunction against the husband from dealing with certain financial aspects of his business.  That order was made on the application by the wife and subsequently, two parties were joined.  I made clear in the judgment that arose out of the orders of 9 April they had the benefit of the injunction and, in my view, they were obliged thereafter to proffer an undertaking as to damages in the usual form, failing in which the injunction should be discharged.

3. There was a foundation for the injunction in the first place and it should hold until the matter can be properly argued.  I am not prepared to extend the existing injunction because of the fact that it may very well be that I am functus officio.  The order could be read to be self executing, but there clearly was a foundation for an injunction under section 114 and the Court found that it was proper.  On that basis, it seems to be logical that it is proper again to make the same injunction set out in paragraph 8 of the orders of 10 December.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 May 2013.

Associate: 

Date:  23 May 2013