[2007] FamCA 677
FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA
AT MELBOURNE NO. MLF 7114 of 2001
IN THE MATTER OF:
MRS ON (Wife)
and
MR ON (Husband)
(No. 11)
JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST
Date of Hearing: 22, 23, 26, 27, 28 February, 1, 2, 5, 6, 7 March 2007
Date of Judgment: 10 July 2007
Appearances:
Mr Andrew Kirkham QC, with Mr Sweeney of counsel, instructed by Kennedy Wisewoulds, Solicitors, on behalf of the Applicant (wife)
The Respondent (husband) in person
CATCHWORDS:
FAMILY LAW – PROPERTY - DIVISION OF MATRIMONIAL PROPERTY - 30 year marriage- neither party had assets at the start of the marriage- considerable asset portfolio built up prior to separation including a Pharmaceutical Business, various trusts and companies which the wife estimated at $15 million as a pool- Husband asserted pool closer to $1.3 million- Husband systematically mismanaged and wasted joint funds post separating significantly reducing the available assets- Whether add-backs appropriate- determination of the disparate submissions as to the property pool value- husband’s conduct at the hearing; whether there should be a Jones v Dunkel inference-relevance and treatment of the husband’s appearance in person-treatment of husband’s post separation financial conduct.
Evidence Act 1995 (Cth) s 140(1) and (2)
Family Law Act 1975 (Cth) s 75(2); s 75(4)(a) to (c) (inclusive); s 79(4)(a) to (e)
Family Law Rules 2004 (Cth) Rule 15.06(3); Rule 19.04(2)
Oriolo v Oriolo (1985) FLC 91-653 at p 80,256
Re. F; Litigants in Person Guidelines (2001) FLC 93-072
Jones v Dunkel (1959) 101 CLR 298 at p 320 to 321
Fabre v Arenales (1992) 27 NSWLR 437 at 449
Attorney-General for the Commonwealth of Australia and Others; Ex parte Skyring (1996) 70 ALJF 321
Neil v Nott (1994) 68 ALJR 509 at 510
Ferraro v Ferraro (1993) FLC 92-335
Clauson v Clauson (1995) FLC 92-595
JEL v DDF (2001) FLC 93-075
Giunti v Giunti (1986) FLC 91-759
Black v Kellner (1992) FLC 92-287
Weir v Weir (1993) FLC 92-338
Minagall v Ayres (1996) SASR 151 at 154
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273-4
Louth v Diprose (1992) 175 CLR 621 at 640
Hickey v Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at par 39
Chang v Su (2002) FLC 93-117
Kannis v Kannis (2002) Fam CA 1150
Kowaliw v Kowaliw (1981) FLC 19-092
Omacini v Omacini (2005) 93-218
DJM v JLM (1998) FLC 92-816
Townsend v Townsend (1995) FLC 92-569
Browne v Green (1999) FLC 92-873 at 86,360
DJM and JLM (1998) FLC 92-816
SMB v MFB [2006] Fam CA 46
Williams v Williams (1984) FLC 91-541
INTRODUCTION
The husband and the wife married on 29 December 1966. Following a union in excess of one third of a century, they separated on 5 July 2001 and thereafter commenced a journey pitted with rancour and bitterness, the husband’s attitude being underscored in a…
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- AGLC
- On & On (No. 11) [2007] FamCA 677
- Case
- [2007] FamCA 677
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was to determine whether the respondent company was insolvent for the purposes of s 459E of the Corporations Act 2001 (Cth). This required an assessment of the respondent's financial position, including its ability to meet its liabilities as they became due and payable, and whether there was a deficiency of assets.
Guest J considered the evidence presented by both parties regarding the respondent's financial state. His Honour applied the principles of insolvency law, which require a company to be unable to pay its debts as they become due. This involves an examination of the company's cash flow and its overall financial position. The court found that the respondent was indeed unable to pay its debts, having regard to its liabilities and the limited availability of liquid assets.
Consequently, Guest J made orders for the winding up of the respondent company.
Orders
Orders of the court
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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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