Regan & Regan - [2021] FamCA 586

FAMILY COURT OF AUSTRALIA

Regan & Regan [2021] FamCA 586

File number(s):	BRC 7426 of 2021
Judgment of:	BAUMANN J
Date of judgment:	15 July 2021
Catchwords:	FAMILY LAW – PROPERTY – Where the wife seeks to injunct settlement funds deriving from two properties – Where urgency exists as settlement was to take place the following day – Where the husband unilaterally made arrangements with creditors to pay settlement funds towards debts that are not yet due and payable – Orders made for the wife to receive $100,000 partial property settlement.
Number of paragraphs:	21
Date of last submission/s:	15 July 2021
Date of hearing:	15 July 2021
Place:	Brisbane
Counsel for the Applicant:	Mr P Hackett
Solicitor for the Applicant:	Hirst & Co
Counsel for the First Respondent:	Mr T Kirk QC
Solicitor for the First Respondent:	Hopgood Ganim Lawyers
Solicitor for the Second Respondent:	Mr Phillips, Phillips Family Law
Solicitor for the Third Respondent:	Mr Phillips, Phillips Family Law

ORDERS

BRC 7426 of 2021
BETWEEN:	MS REGAN Applicant
AND:	MR REGAN First Respondent
AND:	MR REGAN Second Respondent
AND:	B PTY LTD ACN ... AS TRUSTEE FOR THE C TRUST Third Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	15 JULY 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

That until 4.00pm on 19 August 2021 or earlier order, the First Respondent, both in his personal capacity or as a director of H Pty Ltd ACN ... be restrained, whether by himself, or his servants or agents from dealing with the sum of $3,058,377.03 payable upon the refinance or discharge of the first mortgage H Pty Ltd ACN ... as Trustee as granted by B Pty Ltd ACN ... as Trustee, other than to pay or cause to be paid:
a.$2,958,377.03 into the trust account of Hopgood Ganim Lawyers; and
b.$100,000.00 to the trust account of Hirst & Co Family Lawyers by way of partial property settlement.
That the parties’ costs be reserved.

Note: The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Regan & Regan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

BAUMANN J:

The Application before me today has been brought on urgently on the basis that the wife seeks to restrain the husband, who will become the controller of funds – as the exchange between the parties and events today have reflected – as a result of a refinance undertaken in respect of a property that will become available tomorrow, 16 July 2021. The sum is $3,762,056.73 as per the settlement statement annexed 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 Regan & Regan

Details

AGLC: Regan & Regan [2021] FamCA 586
Case: [2021] FamCA 586
Decision Date: 15 July 2021

CaseChat Overview and Summary

In the matter of BRC 7426 of 2021, Ms Regan (the applicant) sought urgent injunctive relief against Mr Regan (the first respondent) and B Pty Ltd ACN ... as Trustee for the C Trust (the third respondent). The dispute concerned settlement funds derived from two properties, with settlement scheduled for the following day. The wife alleged that the husband had unilaterally made arrangements to pay settlement funds towards debts not yet due and payable.

The court was required to determine whether to grant an injunction restraining the husband from dealing with the settlement funds, and if so, on what terms. Specifically, the court needed to consider the urgency of the situation and the husband's actions in proposing to discharge certain debts with the settlement proceeds.

Baumann J applied principles of family law concerning property settlement and the court's power to make interim orders to preserve assets. The court found that there was a need to preserve the settlement funds to ensure a partial property settlement could be achieved. Consequently, the court ordered that until 4.00pm on 19 August 2021, the first respondent, in his personal capacity or as a director of H Pty Ltd ACN ..., be restrained from dealing with the sum of $3,058,377.03 payable upon the refinance or discharge of the first mortgage.

The court further ordered that the restrained funds be paid as follows: $2,958,377.03 into the trust account of Hopgood Ganim Lawyers, and $100,000.00 to the trust account of Hirst & Co Family Lawyers by way of partial property settlement. The parties' costs were reserved.

Orders

Orders of the court

BRC 7426 of 2021

BETWEEN:

MS REGAN

Applicant

AND:

MR REGAN

First Respondent

AND:

MR REGAN

Second Respondent

AND:

B PTY LTD ACN ... AS TRUSTEE FOR THE C TRUST

Third Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

15 JULY 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

That until 4.00pm on 19 August 2021 or earlier order, the First Respondent, both in his personal capacity or as a director of H Pty Ltd ACN ... be restrained, whether by himself, or his servants or agents from dealing with the sum of $3,058,377.03 payable upon the refinance or discharge of the first mortgage H Pty Ltd ACN ... as Trustee as granted by B Pty Ltd ACN ... as Trustee, other than to pay or cause to be paid:

a. $2,958,377.03 into the trust account of Hopgood Ganim Lawyers; and

b. $100,000.00 to the trust account of Hirst & Co Family Lawyers by way of partial property settlement.

That the parties’ costs be reserved.

Note: The form of the order is subject to the entry in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.