Porter and Porter and Ors

[2020] FamCA 710

FAMILY COURT OF AUSTRALIA

PORTER & PORTER & ORS [2020] FamCA 710

FAMILY LAW – PRACTICE AND PROCEDURE – Ex parte orders

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Porter

1^st RESPONDENT: Mr Porter

2^nd RESPONDENT: Ms O

3^rd RESPONDENT: CC Pty Limited

4^th RESPONDENT: N Pty Limited

5^th RESPONDENT: CA Pty Limited

6^th RESPONDENT: S Pty Ltd

7^th RESPONDENT: DG Pty Limited

8^th RESPONDENT: Mr BL

FILE NUMBER: SYC 4014 of 2012

DATE DELIVERED: 19 August 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 19 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Coleman Greig Lawyers

Orders

1. Pending further order, N Pty Limited ACN … ATF The N Trust is restrained from doing any act or thing:

   (a)so as to deal with any request or application made for or on behalf of CC Pty Limited ACN … ATF CC Trust to redeem any or all of its units held in The N Trust; or  

   (b)to adversely impact upon the interests of CC Pty Limited ACN … ATF CC Trust held in The N Trust  

   (c)that would have the company deal in any way with the units currently held in the N Trust.

2. The wife’s Undertaking as to Damages is to be filed as soon as is practicable.

3. These order, reasons and the associated documents are to be served upon the respondents as soon as is practicable.

4. This matter be adjourned to 27 August 2020 at 10am by telephone. To participate in this mention by telephone please dial … and at prompt enter password …

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 Porter & Porter 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 SYDNEY

FILE NUMBER: SYC 4014  of 2012

Ms Porter

Applicant

And

Mr Porter

1^st Respondent

And

Ms O

2^nd Respondent

And

CC Pty Limited

3^rd Respondent

And

N Pty Limited

4^th Respondent

And

CA Pty Limited

5^th Respondent

And

S Pty Ltd

6^th Respondent

And

DG Pty Limited

7^th Respondent

And

Mr BL 

8^th Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By way of an Application in a Case filed 13 August 2020 the wife makes an ex parte application for an order in the following terms:

   3.That pending further order, N Pty Limited ACN … ATF The N Trust is restrained from doing any act or thing:

   3.1    so as to deal with any request or application made for or on behalf of CC Pty Limited ACN … ATF CC Trust to redeem any or all of its units held in The N Trust; or

   3.2    to adversely impact upon the interests of CC Pty Limited ACN … ATF CC Trust held in The N Trust

2. Further, the wife makes an oral application that N Pty Limited as trustee for the N Trust be restrained from doing any act or thing that would have the company deal in any way with the units currently held in the N Trust.

3. I will make orders in accordance with those applications for the following reasons.

4. By way of order 10 made 25 June 2020, Ms O was required to transfer to the wife all interest that the CC Trust held in units in the N Trust.

5. By way of order 5.1 made 1 February 2018, Ms O was restrained, pending further order, as a director of CC Pty Limited from doing any act or thing to:

   a)Vary in any way the number of units held in any named unit trust (the N Trust being a named trust in those orders (order 5.1(d)); and

   b)Disposing of any property whatsoever vested in any named trust except in the ordinary course of business which was defined narrowly by the orders (order 5.1(e)).

6. The evidence indicates that Ms O, as a director of CC Pty Limited, either at a date slightly before or alternatively, after the final orders were made on 25 June 2020, is likely to have disposed of 625 units in the N Trust for $1.00 as to 144 units to the DH Trust and as to 481 units to “DG”. The evidence would indicate that DG Pty Ltd is owned and controlled by the husband’s cousin Mr BL.

7. On the limited information that I have been given today, it is likely that the SJM Trust is owned and controlled by Mr DH and/or Ms DK, who I am informed is Mr DH’s wife.

8. I note that the lawyer for the wife has indicated that the wife has provided him with a signed undertaking as to damages and that is to be filed as soon as is practicable.

9. I note in passing that the documents that have been filed also disclose that Ms O has assigned three registered trademarks on 18 September 2018 to a company CA Pty Limited, a company which, after the husband had ceased to be involved in it on 31 January 2018, was thereafter controlled only by Mr BL. The company records indicate that up until the time when that company was deregistered, the husband remained a shareholder of the company. After the company was deregistered, the documents I have been given indicate that those trademarks were transferred to DG Pty Limited, a company totally controlled by Mr BL.

10. I am satisfied, having regard to the provisions of rule 5.12 Family Law Rules, that it is appropriate to make an interim restraining orders without notice to the respondents.

11. These order, reasons and the associated documents are to be served upon the respondents as soon as is practicable. The matter is otherwise adjourned to 10am on Thursday 27 August 2020.

I certify that the preceding eleven (11) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 19 August 2020.

Associate: 

Date:  19.8.2020