Matech and Matech & Ors (No 2)

[2020] FamCA 424

FAMILY COURT OF AUSTRALIA

MATECH & MATECH AND ORS (NO. 2) [2020] FamCA 424

FAMILY LAW – PROPERTY – CORPORATIONS – Where the husband was disqualified from being a director of corporations by ASIC – Where following his disqualification the husband purported to appoint his adult daughter as a director– Where the daughter then purported to appoint her grandmother – Where the grandmother purported to appoint a voluntary administrator – Where the wife is the sole shareholder of subject corporation – Where all appointments are found to be invalid

Family Law Act 1975 (Cth) s 117(2)(a)
APPLICANT:	Ms Matech

FIRST RESPONDENT: Mr Matech

SECOND RESPONDENT: Ms V Matech

THIRD RESPONDENT: Mr W Matech

FOURTH RESPONDENT: F Pty Ltd

FILE NUMBER: BRC 2432 of 2018

DATE DELIVERED: 8 May 2020

PLACE DELIVERED: Brisbane

PLACE HEARD:

JUDGMENT OF: Baumann J

HEARING DATE: 8 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Hackett

SOLICITOR FOR THE APPLICANT: Evans Brandon Family Lawyers

THE FIRST RESPONDENT: Self-Represented

COUNSEL FOR THE SECOND RESPONDENT:	Mr P Looney QC
SOLICITOR FOR THE SECOND RESPONDENT:	Stewart Family Law

THE THIRD RESPONDENT: No appearance

SOLICITOR FOR THE FOURTH RESPONDENT: Ms C Wallace,
Wallaceweir Lawyers

Orders

1. That it is hereby declared that the appointment of Ms V Matech as a director of F Pty Ltd is invalid.

2. That it is hereby declared that the appointment of Ms Y Matech as director of F Pty Ltd is invalid.

3. That it is hereby declared that Mr X’s appointment as Voluntary Administrator of F Pty Ltd is invalid.

4. That Mr Matech and Ms V Matech jointly and severally pay the Applicants’ costs of and incidental to this application as agreed, fixed by the Court or assessed with the date for payment of such costs to be determined by the Court.

5. That determination of the Orders sought in paragraph eight (8) of the Application in a Case filed 1 May 2020 be adjourned to 10.00am on 12 May 2020.

6. That Mr X and Ms V Matech be excused from participating in the determination of the remaining issue arising from the Application in a Case filed 1 May 2020.

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 Matech & Matech and Ors 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 AT BRISBANE

FILE NUMBER: BRC 2432 of 2018

Ms Matech

Applicant

And

Mr Matech

Respondent

REASONS FOR JUDGMENT

(settled from the oral reasons delivered)

1. The Application in a Case before me today, filed on 1 May 2020, is yet another event in the longstanding litigation between parties to a marriage who separated some years ago:  the Applicant wife, Ms Matech; and the Respondent husband, Mr Matech.  It is fair to say that the financial affairs of the parties, in particular Mr Matech, are somewhat complex, and the capacity to, with confidence, understand all about those financial dealings is not assisted by the inability of Mr Matech, although articulate and commercial, to have legal representation and to always grasp the legal issues.

2. What is apparent, however, and clear, in my view, on the evidence, as the outline of the Applicant, through her Counsel, Mr Hackett, filed 7 May 2020, sets out, is that F Pty Ltd, as trustee of the Ms Matech Trust, has had significant changes to its operation which are questionable.

3. I accept that F Pty Ltd, as trustee, is an entity of which the wife is the sole shareholder.  I accept that the trustee provides the husband with some powers of appointment under the trust deed in relation to a new trustee.  I accept that there are injunctions of this Court, arising from other proceedings, restraining the exercise by the husband of any powers in relation to the appointment of new trustees of that trust.  I accept that at the current time, it appears that the trust has some financial difficulties, although I do not conjecture as to the full extent of those at this stage.

4. What is clear is that Mr Matech, as a result of a decision of ASIC, communicated to him by a memorandum dated … December 2019, has been disqualified from being a director of corporations for a period of five years.  That disqualification took place and has not been the subject, it seems, of any review application, as the law might otherwise permit –

5. Although this will need to be possibly investigated for other purposes, Mr Matech, I am satisfied, without reference to the wife as the sole shareholder of F Pty Ltd, but conscious of his inability without significant sanction from acting as a director, on or about 20 December 2019, purported to appoint his daughter, Ms V Matech, as a director of F Pty Ltd.  Thereafter, on or about 5 March 2020, Ms V Matech appointed her grandmother Ms Y Matech, who I am told is aged in her nineties, as a director of F Pty Ltd, and then – I infer, subsequently – resigned and/or ceased to be a director of F Pty Ltd on the same day.

6. I am satisfied, for the reasons which are advanced in the oral submissions of Mr Hackett, for the Applicant, and his written submissions, that the appointment of Ms V Matech, and then the subsequent appointment of Ms Y Matech, were without power, and should be declared, as the Application of the Applicant seeks, at orders 1 and 2, to be invalid.  Ms V Matech, who is represented today by Mr Looney of Senior Counsel, does not oppose such an order, sensibly.  Ms Y Matech does not appear today.  However, I am satisfied that it is appropriate to make the declarations set out at paragraphs 1 and 2 of the Application in a Case filed 1 May 2020.

7. Arising from a meeting purported to have been conducted by the sole director of F Pty Ltd on 3 April 2020, the sole director, Ms Y Matech, resolved, under Part 5.3A of the Corporations Act 2001, to appoint a voluntary administrator to administer the affairs of the company; and further resolved to appoint Mr X as a joint and several administrator of the company.

8. As a result of that resolution, Mr X, represented today by Ms Wallace, began his work as a voluntary administrator of the company.  There is nothing to suggest that he had notice of the way in which the resolution had been procured, and by whom, and in what circumstances.  Nonetheless, Ms Wallace, on behalf of Mr X today, now being informed of that process and its difficulties, does not oppose the order sought by the Applicant wife at order 6, namely, that it be declared that his appointment is invalid.  Such an order is not opposed by Ms V Matech.

9. There is, of course, an issue that arises from the appointment of any administrator who has done work, and that is the payment of fees.  To that extent, and sensibly, and to the credit of the parties, Ms V Matech and Mr Matech have reached an agreement with Mr X, through his solicitor, as to his reimbursement and/or payment of costs and expenses, some of which have, it seems, already been paid by Ms V Matech, in the sum of $16,000, arising from the work he has undertaken since commencing his, what he thought, was a valid appointment.  The terms of that agreement between the parties will be a consent order made by the Court in the terms sent to the Court by Mr Looney SC and reflected in the transcript of today’s proceedings.  Thereafter, of course, Mr X has no further role, at this stage.

10. Order 10 is an order that the Applicant seeks, that her costs of this Application be paid by the husband and Ms V Matech (jointly and severally).  Mr Looney indicates that his client does not oppose that order being made.  Mr Matech, although unrepresented, is aware of the circumstances, and he does not oppose that order being made.

11. Because there are other parts of the proceedings involving the wife,

    
    

    Mr Matech, and perhaps Ms V Matech, in respect of other companies, I propose to make an order in accordance with the discretion under section 117(2)(a) of the Family Law Act 1975, primarily because the application brought by the wife was absolutely necessary;  has been successful;  and, had it not been dealt with urgently, could have caused some difficulties arising from a creditors’ meeting scheduled to take place on Monday, 11 May 2020.  The Order shall be that:

    Mr Matech and Ms V Matech jointly and severally pay the applicant’s costs of and incidental to this application, as agreed, fixed by the Court or assessed, with the date for payment of such costs to be determined by the Court.

    I say that because it seems to me that there are a number of other applications before the Court, some of which are for costs orders and for enforcement orders between the wife and Mr Matech, which may ultimately involve other entities.

12. There remains one other matter today.  Mr Hackett, on behalf of the applicant, seeks an order, at paragraph 8, that:

    F Pty Ltd be removed as trustee of the Ms Matech Family Trust.

13. In my exchanges with Mr Hackett, which are apparent from the transcript, I have indicated my concern that, having now made the orders that the appointment of directors was invalid, F Pty Ltd, although still an entity as trustee of the Ms Matech Family Trust, has no current directors.  That is a matter, of course, that can be remedied without Court intervention, by Ms Matech, as the only shareholder of the company.

14. I am reluctant, at this stage, to order the removal of a trustee of the trust until I am satisfied that a replacement trustee can be appointed, which is a requirement, and which has other considerations which I do not have time, today, to deal with; and, secondly, upon which Mr Matech may well have a view that needs to be considered.  I am also conscious of the fact that there have been judgments against the trustee of this trust from the Supreme Court in respect of funds, and, as I understand it, there might be other interests held by the family trust, the Ms Matech Family Trust, in other entities, which need to be considered.

15. I made it clear to the parties today that I would only deal with this urgent application to the extent that it was necessary to make orders today in view of the pending creditors meeting set for next Monday.  In the circumstances, consideration of an order sought by the applicant at paragraph 8 will be adjourned to another day.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 8 May 2020.

Associate:

Date: 29 May 2020