Parsin and Parsin

[2008] FamCA 401

FAMILY COURT OF AUSTRALIA

PARSIN & PARSIN [2008] FamCA 401

FAMILY LAW – PROPERTY – stay of orders pending hearing of Review application

Family Law Act 1975 (Cth)

APPLICANT: Mrs Parsin

RESPONDENT: Mr Parsin

FILE NUMBER: SYF 3495 of 2006

DATE DELIVERED: 29 April 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 29 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Gorman

SOLICITOR FOR THE APPLICANT: Owen Hodge Lawyers

FOR THE RESPONDENT: No appearance

Orders

1. That orders are made in terms of paragraphs 3, 4 and 8 of the Wife’s Amended Application in a Case filed 29 April 2008 as set out hereunder:

3.That pending further Order, the Orders numbered 4 to 10 (inclusive), 31 to 33 (inclusive), 35, 39 to 41 (inclusive), 44 & 45 of the Orders delivered by Judicial Registrar Loughnan of the Family Court of Australia at Sydney on 21 February 2008 be stayed pending the Applicant Wife’s Application in a Case listed for Hearing on 8 May 2008.

4.That pending further order the Respondent Husband be restrained from doing anything to cause A.C.N. […] Pty Limited (formerly known as [Parsin] Group Pty Limited) and [P International] Pty Limited ACN to be voluntarily wound up in accordance with the Corporations Act 2001.

…

8.That the Respondent be restrained from selling, mortgaging, alienating, using or otherwise dealing with or disposing of the Companies assets or instructing or inciting someone else to do so.

1. That the orders contained in order 1 are made until further order, but on the basis that should the husband wish there should be a hearing on the merits as soon as practicable whether on 8 May 2008 or some date soon thereafter and in so far as they affect A.C.N. … Pty Limited, formerly known as Parsin Group Pty Limited only, on the basis that that company may not already be in administration.

2. That a sealed copy of these orders are to be served on the husband, National Australia Bank and on any Administrator of A.C.N. … Pty Limited as soon as practicable.

1. That leave is given to the parties and to any person affected by these orders to apply on giving 48 hours notice to the Court and to the other parties.

1. That the costs of the wife are reserved of and incidental to today.

IT IS NOTED:

A.That these orders are made on an undertaking as to damages given by the wife, which is Exhibit 1.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3495 of 2006

MRS PARSIN

Applicant

And

MR PARSIN

Respondent

REASONS FOR JUDGMENT

1. These are proceedings arising out of property proceedings between the parties.  The matter came before me late last year and final orders for settlement of property were made, in the weeks before Christmas. I understand that a Review was filed in relation to that determination. The property proceedings involved a number of investment properties, a former matrimonial home, and a business. 

2. The parties' affairs involved some complexity and they were in dispute as to who would take what assets. The parties were in agreement about some investment properties but not about others. 

3. After some negotiations, on 21 February 2008 I was asked to make orders under section 79A and fresh orders under section 79 by agreement between the parties. An application for review of those orders was filed on 19 March 2008 by the wife and I understand that the review is listed on 8 May 2008.

4. There is in evidence a torturous record of communications between the husband, solicitors who had been acting for the husband, and the wife's solicitor, as the parties worked towards trying to reach a settlement with the National Australia Bank. That bank had a cross-collateralised mortgage and millions of dollars are owed. Ultimately those negotiations fell down.  On 4 April 2008 the husband told the wife's solicitor that she could not refinance. The correspondence went along the lines of: "No, you cannot."  "Can, too."  "No, you cannot," that sort of thing, with the husband insisting that he had not seen the details of the wife's refinance approval; the wife's solicitor insisting that she had approval and the husband should just accept it, and they wanted to see his approval details.  So, at the end of the day, the husband said he was not going to be able to deliver on the bargain that was struck in the form of the 21 February 2008 orders. 

5. On 14 April 2008 the husband gave notice of a meeting for the purposes of winding up a company called Parsin Group Proprietary Limited.  On 16 April 2008 the husband caused the name of that company to be changed to the CAN of the company.  The husband advised the wife's solicitor that he had been in default of loans and the National Australia Bank were moving.

6. As I understand it the bargain struck in the 21 February orders would leave the wife with the former matrimonial home and an investment property. The wife is concerned that the husband is conspiring at a situation where, in an uncritical calling in of the collateral, even though there is a surplus of assets over liabilities, the former matrimonial home will fall in the bank's efforts to recover its money.

7. That has resulted in an application for a stay of the original orders and for the appointment of an administrator for two companies, Parsin Group Proprietary Limited, now called the ACN (n)umber, and P International Proprietary Limited. Although I have not been told, I take it there would be a greater chance of saving the former matrimonial home in specie if there is an administrator, rather than on a winding up of one or both of those companies.  For that reason the wife has had discussions with the bank, and a Mr W of D Firm is a person with whom the bank has worked, and there is a chance that the bank would be satisfied with his appointment as an administrator. The wife has obtained consent from Mr W and with that indication from the bank asks for the husband to be restrained from causing the companies to be wound up; and for the appointment of Mr W as administrator of the companies. She seeks consequential orders to assist the administrator have sole carriage of the affairs of the businesses and to obtain information necessary to discharge his duties.

8. In terms of natural justice, notice was given to the husband, at least of an earlier version of the application before me today. The husband has consistently said he would not be available to come to Court today and would not be available until the 2^nd of May. The husband has indicated that he was going to call a meeting of the company for 1 May. The solicitor for the wife told the husband that, if he was not here, some of his documents would be put before the Court.  The two documents of the husband I have been given are a Response that is blank and an Affidavit. I do not know what the status of that Affidavit is. In strict terms, it is a document put into evidence by the wife, having been sworn by the husband. So the husband is the wife's witness in relation to the contents of this document. Luckily his Response is blank, because there is no one here to prosecute it.

   I will call the affidavit exhibit 1, and it is a document being filed in the wife's case. 

9. In that document the husband says that he has caused an administrator to be appointed - not a liquidator - an administrator to be appointed: Mr A of S Firm, to the ACN company.  He says that Mr A has accepted and he says that appointment was made on or about yesterday. That is very oddly worded. The husband has annexed some minutes of a meeting. He says he did all this in his capacity as sole director.  The minutes do not bear a date, but there is annexed a document purporting to be signed by Mr A, dated 28 April, which says that he consents to act as an administrator. 

10. I am told the evidence would be that an inquiry was made of the bank and that the bank has received a copy of the consent.  The bank does not have anything, as far as the wife's solicitor knows, that says that Mr A has been made aware that he has been appointed, or anything else to confirm it.  A call has been put in to Mr A and that call has yet to be answered. 

11. The orders pressed today are sought on the basis that there is no independent evidence that finally confirms that the administrator has been appointed, and, in relation to the ACN (n)umber company, for more abundant caution and to prevent the husband doing anything else.

12. Mareva injunctions are available in proceedings in aid of jurisdiction.  Here there are proceedings on foot for a review of orders made by consent on 21 February 2008.  The subject matter of those orders includes the assets of the two companies. The husband has notice that the orders are being sought and, indeed, I understand the bank, which is the main creditor of the companies, has notice that these orders are being sought. So the question is whether it is proper to make an order and that is a question really of weighing up prejudice.

13. I have not been offered an undertaking as to damages in the usual terms, but I will need one in circumstances like this. The wife needs to undertake to pay any damages that the Court subsequently finds have arisen as a result of the orders and that the Court subsequently finds should be met by her. That is because there is a lot I do not know about these circumstances, and it may be that somebody else will be affected.  I am not so much worried about the husband, because he has made an election not to come.  But it may be that there are creditors that I am not aware of.  It may be that there are other persons affected.  That is the thing about orders made in the absence of a party. With such an undertaking, it seems to me that orders are warranted. 

14. The orders pressed today, firstly, relate to the operative provisions of the orders made by consent on 21 February 2008.  I have not been through the detail of them.  The husband is on notice; he has not sought to oppose the granting of the stay; and there is a review on foot. I apprehend that the wife is not sanguine about all of the benefits of the orders she achieved on 21 February being available given the costs of administration and so on, but she wants to preserve the former matrimonial home. 

15. As with my original orders, the orders of 21 February 2008 were very complicated.  She says that the sequence was that she became worried about the effect of the default provisions on a call on the properties that she wanted to retain.  She says that the provision in the orders that dealt with that problem, order 47, involving a right to apply, would not allow anything to be done if the bank moved on its security. 

16. It is sensible, in the circumstances, for the orders to be stayed.  The husband does not oppose it and that matter can be revisited on 8 May 2008, or whenever that application is heard.

17. Nextly, the wife wants an injunction that the husband be restrained from doing anything to cause the two companies to be voluntarily wound up.  My understanding would be that his capacity to do that would be limited if an administrator has been appointed to the ACN company, but he may well be able to do something in relation to P International Pty Ltd.  To use a reference from the non-corporations area, acts of bankruptcy have been made left, right and centre, so it would not take much, presumably, for someone to move on the company.  For the purposes of keeping the peace and so that there can be an orderly consideration of the issues and so that the husband is protected in relation to his statutory obligations I will make that order. The merits of that will have to be revisited.

18. Nextly, there was an application to appoint an administrator.  I will not proceed with that.  It is more probable than not that there has been an administrator appointed. I think the fact that there has been that advice from the administrator - the putative administrator, to the bank - that has left the bank with the impression that there has been an administrator appointed, suggests that the appointment was made. It is one thing for the husband to mislead the bank about that, but it is unlikely that Mr A would take such a step.  So I will not make that order.

19. Similarly, in relation to the P International Proprietary Limited there is an advantage, I think, having discussed the matter with counsel for the wife, in there being the same administrator for both companies, if there has to be an administrator. Appointing Mr W, in those circumstances, would not be appropriate. Appointing Mr A may turn out to be not appropriate if he is not a person suitable to the main creditor, the bank.  So I think that needs to be left alone for the time being.

20. Order 6 is not necessary.

21. Order 7 is not necessary.

22. Order 8 is relevant to the extent of P International Proprietary Limited and, in relation to the other company, if it is not under administration.  There has been some mischief done here. The husband was on notice that the wife wanted an administrator appointed. Without further notice to her, he says that he caused a person other than her nominee to be appointed.  The timing of it suggests that he did that with a view to frustrating this Court dealing with the matter today. That alone, without being able to tease apart the responsibility of either party for the failure of the discussions to implement the orders of 21 February, is enough to say that it is possible that the husband has an intention to act in relation to the companies in a way either inimical to the wife's interests or, perhaps just to frustrate her preferences in relation to the division of the parties' property. 

23. There is an injunction sought in relation to the takings of the businesses.  I am not sure what that means.  I do not know that there is much in the way of takings. In any event given that it is likely that there is an administrator, I will not make that order.  

24. There is an application to keep the husband away from the premises.  To be fair, that is sought more in a general form of orders sought when an administrator has been appointed. Presumably, Mr A, will be able to manage that for himself, without any assistance from me.

25. And, similarly, in relation to Order 11, any mischief to the lease executed between the parties' two companies, can be undone if there is a problem.

26. Order 12 which seeks documents is not necessary. 

27. In relation to order 13, if the administrator has been appointed, the husband has been substantially robbed of his capacity.

28. The other orders sought are not necessary for the purposes of today.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan.

Associate: 

Date:  11 June 2008