Priddle and Priddle & Ors

[2010] FamCA 464

FAMILY COURT OF AUSTRALIA

PRIDDLE & PRIDDLE AND ORS [2010] FamCA 464

FAMILY LAW – INJUNCTION – interim application – where wife seeks an injunction preventing the winding up of a company pending trial – where there is an alleged debt due by the company to the husband’s parents – injunction granted

FAMILY LAW – JURISDICTION – appropriate circumstances for the Court to exercise its accrued jurisdiction

Family Law Act 1975 (Cth)

Warby & Warby (2001) FLC 93-091
Finlayson & Finlayson & Gillam (2002) FLC 93-121

APPLICANT: Ms Priddle

1^ST RESPONDENT: Mr Priddle

2^ND RESPONDENTS: Mr and Mrs Priddle (Snr)

FILE NUMBER: ADC 312 of 2009

DATE DELIVERED: 27 May 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 27 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M.T. Pyke QC

SOLICITOR FOR THE APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: Mr J.G. McGinn

SOLICITOR FOR THE 1^ST RESPONDENT: Tindall Gask Bentley

COUNSEL FOR THE 2^ND RESPONDENTS: Ms N. Hurley

SOLICITOR FOR THE 2^ND RESPONDENTS: Robert Chrzaszcz & Associates

Orders

1. The second respondents Mr Priddle (Snr) and Mrs Priddle (Snr) and the husband and wife are restrained and an injunction is granted restraining them from taking any further step either by themselves, their servants or agents, in prosecuting a Petition to wind up the company Priddle Nominees Pty Ltd.

2. The question of costs of the application of all parties (husband, wife and second respondents) is reserved to the trial Judge.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 312 of 2009

MS PRIDDLE

Applicant

And

MR PRIDDLE
MR AND MRS PRIDDLE (SNR)

Respondents

EX-TEMPORE REASONS FOR JUDGMENT

1. The application in a case of the filed on 12 May 2010, paragraph 6, seeks an order that pending a final determination of these proceedings, Mr Priddle (Snr) and Mrs Priddle (Snr) and any person acting as a director of Priddle Nominees Pty Ltd and the company Priddle Nominees Pty Ltd be restrained and injunctions be granted restraining them from taking any further step, either by themselves or their servants or agents, in prosecuting a petition to wind up the company, Priddle Nominees Pty Ltd. 

2. I have heard the argument this morning from counsel for the wife, the husband, and for the second respondents, Mr and Mrs Priddle (Snr), who are the husband's parents. 

3. The material relied upon in relation to the application for the injunction, primarily against the husband's parents, is set out in the affidavit material of the wife's solicitors and the documents annexed thereto, being the document filed on 12 May 2010.  Reference was also made to an earlier affidavit of the wife when the matter was in the Federal Magistrates Court, being the affidavit filed in February 2010. 

4. The injunction relates to the debt allegedly due by the company to the husband's parents.  There is, on the face of the documents already on file, a dispute as to the amount of the debt, if any, due by the company to the husband's parents. 

5. The affidavit of 15 February 2010 refers to the wife being aware that the husband's father had claimed that there was a significant debt owed, together with interest payable.  The matter has been an issue before the Family Court since at least that time.  That is also clear from the correspondence which is annexed to the affidavit of the wife's solicitors, being correspondence between the wife's solicitors and the second respondents' solicitors. 

6. The second respondents, the husband's parents, have been parties to the proceedings in the Federal Magistrates Court and Family Court of Australia for some time.  The application in the case filed by the wife in May 2010 was not the first in which the husband's parents were respondents.  Indeed, there is before the Court a very large affidavit filed on 10 March 2010 with annexures filed by the husband's father (as one of the second respondents) dealing with various matters which were then clearly in dispute between the wife and the second respondents, including amounts claimed to be owed by the company to the husband's parents.  (Paragraph 110 of the affidavit of the husband's father, document 36).

7. The application today is an interim application, pending the conclusion of these proceedings.  As the cases of Warby & Warby (2001) FLC 93-091 and Finlayson & Finlayson & Gillam (2002) FLC 93-121 indicate, this Court has, where appropriate, the capacity to exercise the accrued jurisdiction relating to the husband and wife and also third parties. The Court is able to exercise that jurisdiction in a way which would be appropriate, bearing in mind the need for the criteria of those cases to be established, and provided that all third parties are given appropriate opportunity to participate.

8. I am satisfied that this is a matter in which the interaction between the proceedings between the husband and wife and the issues arising concerning the alleged debt by the company to the husband's parents brings about the appropriate jurisdiction of this Court.

9. The question then to be determined is whether it would be appropriate and just to grant the interim injunction sought by the wife, and whether the necessary conditions have been established to make the injunction appropriate. 

10. As is clear from the documents on file, the Priddle Nominees Proprietary Limited is a company of which the husband and wife are the directors and shareholders, and which is a company used as trustee of a family trust. 

11. The debt which the husband's parents claim relates to rent payable pursuant to a lease of premises at C, as identified by a memorandum of lease in the name of the trustee company.  The parents have made a creditor's statutory demand for payment of the debt which is alleged to $15,133.17, which is apparently rent allegedly due, or increase of rents allegedly due, dating back to approximately the year 2000, in relation to those premises. 

12. Whether the debt is genuine, enforceable, and not being waived or is otherwise an appropriate claim is a matter that is yet to be determined.  Obviously this cannot be determined on the interim basis based on the material before the Court. 

13. The Court cannot make any findings on an interim basis as to whether the debt is due, however the injunction sought by the wife restraining the parents from taking further proceedings to bring about the winding up of the company is appropriate pending the hearing. 

14. The Court takes into account the lengthy detailed correspondence which is annexed to the wife's solicitor's affidavit filed on 12 May 2010 and notes, in particular, the fact that the second respondents were already parties to the Family Court proceedings when the creditor's statutory demand was given on 6 April 2010 and the following correspondence and the submissions suggesting that if arrangements were made to secure the holding of the appropriate sum, then the further steps may not be taken. 

15. The Court is aware of the obvious antagonism which exists between the husband and the wife which has brought about a large amount of documents already on the Court file in the short time that the proceedings have been on foot in the Federal Magistrates Court, and now the Family Court.  The parties have chosen (and by the parties, I mean the husband, wife, and the second respondents) to bring and continue litigation in this Court about these matters.  The argument was put to the Court that the wife should have availed herself of the steps available to the alleged debtor in taking civil proceedings to have the statutory notice set aside and establish in the Civil Courts the veracity of the debt claimed.

16. However the debt is allegedly due by Priddle Nominees Pty Ltd, and the wife is only one of the directors and shareholders.  The other director is the husband, who has indicated, at least to the Court today that he does not dispute the debt and would not propose to take any action to set aside the alleged statutory demand. 

17. Therefore, the wife has an appropriate basis to bringing proceedings in this Court, involving, as it already did, the proceedings between the husband and wife and the second respondents.  The question remains whether the wife should provide some form of security for the payment of the debt if it is found to be due and owing. 

18. The company itself is merely the trustee of the trust.  I am told from the bar table that there are substantial funds available to the parties to meet any debt which is found to be due and owing to the husband's parents, whether payable by them or by the company.  I have noted in the submissions of the wife's counsel that a substantial fund is already invested in a bank account.  The husband and wife, have agreed not to deal with those monies save and except with the written consent of the other.  Counsel has also indicated that the wife has agreed that those proceeds, being the proceeds of sale of the former matrimonial home, will not be dispersed to reduce the sum below a figure of approximately $20,000 which will meet any claim by the husband's parents. 

19. In view of the background to the matter (and the indication by counsel for the second respondents that they do not need the money and would be content if it was simply set aside) consider it is appropriate for an injunction to issue to restrain the second respondents and the husband.

20. This matter came to the Family Court when it was transferred from the Federal Magistrates Court in the middle of March this year.  There has been a hearing set and orders been made by Registrar Brown, for the matter to come back before her, presumably, on 2 June, after certain steps have been undertaken, with a view to progressing the matter to trial.

21. In view of the size of the file, I am concerned about the parties taking a sensible approach to resolving the matter after full disclosure has been made (including matters, such as tax returns of all the parties, indicating what they have told income tax authorities was their financial circumstances, and the payment of various incomes being alleged to exist).

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  10 June 2010