Munayallan & Scott (No 6) - [2022] FedCFamC1F 345

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Munayallan & Scott (No 6) [2022] FedCFamC1F 345

File number(s): SYC 92 of 2012

Judgment of: HENDERSON J

Date of judgment: 12 April 2022

Catchwords:
FAMILY LAW – INTERVENTION – Third party – Application in a Proceeding sought by the liquidator of a company deemed to be the alter-ago of the husband, to vary previous orders made restraining the company or such other entity of which the husband has control or an interest in from depleting and withdrawing any sums or moneys in the respective account to allow the liquidator to enter into a deed of settlement and cost agreement with the wife and a third party pursuant to s 477(2B) of the Corporations Act 2001 (Cth) – Application granted.

FAMILY LAW – PRACTICE AND PROCEDURE – Application sought for a non-publication order pursuant to s 102PE of the Family Law Act 1975 (Cth) for the deed of settlement and cost agreement entered into between the wife, liquidator and a third party – Application granted.

Legislation:
Corporations Act 2001 (Cth) ss 58AA, 477, 477(2B)

Family Law Act 1975 (Cth) ss 102P, 102PE, 102PF(1)(a)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 8, 28.

Cases cited:
Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208

In the matter of 7 Steel Distribution Pty Limited (in liquidation) (receivers and managers appointed) [2013] NSWSC 669

Pascoe; in the matter of Matrix Group Ltd (in liq) [2011] FCA 1117

Stewart in the matter of Newtronic Pty Ltd [2007] FCA 1375

Division: Division 1 First Instance

Number of paragraphs: 54

Date of hearing: 12 April 2022

Place: Sydney

Solicitor Advocate for the Applicant: Nicholas Chase Berry

Solicitor for the Applicant: ERA Legal

Counsel for the First Respondent: Litigant in person

Counsel for the Second Respondent: Litigant in person

Counsel for the Third Respondent: Litigant in person
ORDERS

SYC 92 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR AB AS LIQUIDATOR OF I PTY LTD

Applicant

AND:
MS MUNAYALLAN

First Respondent

MR SCOTT

Second Respondent

MR PHONG

Third Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

12 APRIL 2022

THE COURT ORDERS THAT:
1.Pursuant to section 477 of the Corporations Act 2001 (Cth) (“Corporations Act”), the liquidator of I Pty Ltd (in liquidation), Mr AB (“Liquidator”), be approved to enter into:
(a)the deed of settlement and release dated 21 March 2022, annexed to the affidavit of Mr AB affirmed 7 April 2022 and filed with the Application in a Proceeding filed 8 April 2022 (“Settlement Deed”);
(b)the retainer between ERA Legal, I Pty Ltd and the Liquidator, for the provision of legal services, dated on or about 22 March 2022, annexed to the affidavit of Mr AB affirmed 7 April 2022 and filed with the Application in a Proceeding filed 8 April 2022 (“Costs Agreement”).

2.Order 14 made by Henderson J on 29 September 2021 be varied by:
(a)adding the words “subject to order 14A below” to…

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.

Continue reading Munayallan & Scott (No 6)

Details

AGLC: Munayallan & Scott (No 6) [2022] FedCFamC1F 345
Case: [2022] FedCFamC1F 345
Decision Date

CaseChat Overview and Summary

The case of Munayallan & Scott (No 6) [2022] FedCFamC1F 345 was heard in the Federal Circuit and Family Court of Australia, Division 1. The primary dispute involved an application by the liquidator of I Pty Ltd, seeking to vary previous court orders, enter into a deed of settlement, and obtain approval to sign the deed and related costs agreement. The application also sought a non-publication order for the deed and costs agreement. The court was required to determine whether the liquidator had the authority to enter into the settlement and if the non-publication order was necessary to prevent prejudice to the proper administration of justice.

The court found that the Family Court had the jurisdiction to grant the liquidator leave to enter into a deed of settlement under section 477(2B) of the Corporations Act 2001 (Cth). The court also considered the liquidator's concerns about the husband's potential actions to deplete company assets and the importance of preserving the assets for the benefit of the shareholders, including the wife. The court granted the application to vary the previous orders, allowing the liquidator to sell or realise assets, subject to certain conditions. The court further approved the liquidator to enter into the deed of settlement and costs agreement and granted the non-publication order, finding it necessary to prevent prejudice to the proper administration of justice.

Orders