Sadler and Sadler and Ors - [2016] FamCA 604

FAMILY COURT OF AUSTRALIA

SADLER & SADLER AND ORS

[2016] FamCA 604

FAMILY LAW – INTERLOCUTORY APPLICATIONS – Where the wife sought a raft of interlocutory orders including the appointment of receivers for certain property, income of trusts and a superannuation fund – Where the Third Intervenor resisted the appointment of receivers and sought other interlocutory orders – Where various interlocutory orders were made, including the joining of certain parties to the proceedings and the appointment of receivers

Corporations Act 2001 (Cth), ss 80, 420, 1337C
Family Law Act 1975 (Cth), ss 106A

Family Law Rules 2004 (Cth), rr 6.03

Guirguis & Guirguis and Official Trustee in Bankruptcy (1997) FLC 92-726

APPLICANT:

Ms Sadler

FIRST RESPONDENT:

Mr Sadler

SECOND RESPONDENT:

B Pty Ltd

FIRST INTERVENOR:

Mr Miller

SECOND INTERVENOR:

Trustee in Bankruptcy

THIRD INTERVENOR:

C Pty Ltd

D Pty Ltd
E Pty Ltd
F Pty Ltd
G Pty Ltd

FOURTH INTERVENOR:

Mr Fuller and Mr Martini

FILE NUMBER:

NCC

1976

2012

DATE DELIVERED:

21 July 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

21 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levick

SOLICITOR FOR THE APPLICANT:

O’Hearn Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Not Applicable

SOLICITOR FOR THE FIRST RESPONDENT:

Arnold Lawyers

COUNSEL FOR THE SECOND RESPONDENT:

Not Applicable

SOLICITOR FOR THE SECOND RESPONDENT:

Arnold Lawyers

COUNSEL FOR THE FIRST INTERVENOR:

Not Applicable

SOLICITOR FOR THE FIRST INTERVENOR:

Shotters Lawyers

COUNSEL FOR THE SECOND INTERVENOR:

Not Applicable

SOLICITOR FOR THE SECOND INTERVENOR:

Hicksons Lawyers

COUNSEL FOR THE THIRD INTERVENOR:

Not Applicable

SOLICITOR FOR THE THIRD INTERVENOR:

Beazley Boorman Lawyers

COUNSEL FOR THE FOURTH INTERVENOR:

Not Applicable

SOLICITOR FOR THE FOURTH INTERVENOR:

Not Applicable

Orders

That pursuant to Rule 6.03 of the Family Law Rules 2004, the following parties be added to these proceedings:
(a) B Pty Ltd (“Second Respondent”);
(b) Mr Fuller and Mr Martini (“Receivers”) (“Fourth Intervener”).

Appointment of Receivers

That Mr Fuller and Mr Martini of …, Newcastle, NSW 2300, be appointed as joint and several Receivers (“the Receivers”) of:
2.1The property and income of the Sadler Family Trust (ABN …);
2.2The property and income of the H Trust (ABN …); and
2.3The property and income of the I Superannuation Fund (ABN …).
That in exercising any of their duties under these Orders the Receivers have all of the powers ordinarily available to them pursuant to s 420 of the Corporations Act 2001, and have the right to seek further powers from the Court in the course of exercising the duties of the receivership.
That in exercising any of their duties under these Orders the Receivers be authorised to do anything that the Director of B Pty Ltd may do.
That the Receivers’ remuneration be calculated in accordance with the standard rates effective from time to time of J Consulting, Newcastle.
That there be no security given by the Receivers.
That the husband, the wife and the Second Intervenor (the husband’s trustee in bankruptcy) shall co-operate with the Receivers…

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.

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Details

Case: [2016] FamCA 604
Decision Date: 21 July 2016

CaseChat Overview and Summary

In the matter of *Sadler and Sadler and Ors*, Cleary J of the Family Court of Australia made orders concerning the addition of parties and the appointment of receivers. The proceedings involved the husband, the wife, and the husband's trustee in bankruptcy, with B Pty Ltd also being added as a respondent. The core of the dispute revolved around the management and preservation of assets held within various trusts and a superannuation fund, as well as the division of specific personal property.

The court was required to determine the necessity and scope of appointing joint and several receivers to manage the property and income of the Sadler Family Trust, the H Trust, and the I Superannuation Fund. Further issues included authorising the receivers' powers, establishing their remuneration, and outlining the co-operation required from the husband, wife, and trustee in bankruptcy. The court also addressed the transfer of specific assets, including jet skis and a trailer, and the resolution of an Energy Australia account.

Cleary J reasoned that the appointment of receivers was necessary to protect and manage the assets of the trusts and superannuation fund, granting them broad powers akin to those under s 420 of the *Corporations Act 2001*. The court ordered that the husband, wife, and trustee in bankruptcy must cooperate with the receivers by providing requested documents and information within 48 hours. Specific orders were made for the transfer of jet skis and trailers between the parties and the trustee, and for the husband to remove the wife's name from an Energy Australia account and reimburse her for a payment made on that account. The Registrar was appointed to execute documents if any party failed to comply.

The court granted leave for the applicant wife and any other party to file and serve costs applications within 28 days.

Orders

Orders of the court

That pursuant to Rule 6.03 of the Family Law Rules 2004, the following parties be added to these proceedings:

(a) B Pty Ltd (“Second Respondent”);

(b) Mr Fuller and Mr Martini (“Receivers”) (“Fourth Intervener”).

Appointment of Receivers

That Mr Fuller and Mr Martini of …, Newcastle, NSW 2300, be appointed as joint and several Receivers (“the Receivers”) of:

2.1 The property and income of the Sadler Family Trust (ABN …);

2.2 The property and income of the H Trust (ABN …); and

2.3 The property and income of the I Superannuation Fund (ABN …).

That in exercising any of their duties under these Orders the Receivers have all of the powers ordinarily available to them pursuant to s 420 of the Corporations Act 2001, and have the right to seek further powers from the Court in the course of exercising the duties of the receivership.

That in exercising any of their duties under these Orders the Receivers be authorised to do anything that the Director of B Pty Ltd may do.

That the Receivers’ remuneration be calculated in accordance with the standard rates effective from time to time of J Consulting, Newcastle.

That there be no security given by the Receivers.

That the husband, the wife and the Second Intervenor (the husband’s trustee in bankruptcy) shall co-operate with the Receivers and shall:

7.1 Provide such documents, financial records, bank statements, tax records and any other financial document as required by the Receivers within

48 hours of a request by the Receivers; and

7.2 Provide any other information sought by the Receivers which relates to the income and/or property of the entities in Clause 2 of these Orders.

That the Receivers be added as parties to these proceedings.

The Receivers shall submit reports to the following parties at intervals of no less than two (2) months:

9.1 The wife, by delivery by email to O’Hearn Lawyers;

9.2 The husband, by delivery by email to Arnold Lawyers;

9.3 The First Intervener, by delivery to Shotters Lawyers;

9.4 The Second Intervener, by delivery by email to Hicksons Lawyers; and

9.5 The principal Registrar of the Newcastle Registry of the Family Court of Australia by normal post, for placement on the Court file.

10.

That within 14 days of the date of these Orders the husband provide to the wife and to the Receivers, copies of statements for all accounts which receive income in respect of the following properties, for the period from

1 January 2015 to the date of these Orders:

10.1 K Street, Suburb L;

10.2 M Street, Suburb N;

10.3 O Street, Suburb L;

10.4 P Street, Suburb L;

10.5 Q Street and R Street, Suburb S;

10.6 T Street, Suburb U; and

10.7 V Street, Suburb W.

Jet Skis

11.

That within seven (7) days of the date of these Orders the husband do all acts and sign all documents necessary to transfer to the wife the legal ownership of the jet-ski 1, registration number … and trailer 1, registration number …, currently in the possession of the wife.

12.

That as soon as reasonably practicable upon the husband’s compliance with Clause 11 of these Orders, the wife do all acts necessary at her own expense to register the ownership of that said jet-ski 1 and trailer 1 in her name.

13.

That within seven (7) days of that said jet-ski 1 and trailer 1 becoming properly registered in the wife’s name, the wife do all acts and sign all documents necessary to deliver to the Second Intervener such documents as are required to transfer to the Second Intervener (as the husband’s trustee in bankruptcy) the legal ownership of the jet-ski 2 registration number … and the trailer 2, registration number …, currently in the possession of the husband.

Energy Australia Account

14.

(a) That within 14 days of the date these Orders the husband shall cause the name of the wife to be removed from Energy Australia account number …;

(b) That the husband pay to the wife within 14 days of the date of these Orders the sum of $877.40 NOTING that the wife intends to pay that sum to Energy Australia for the account dated 29 September 2015

15.

That if any party refuses or neglects to sign within 14 days of a written request to do so any documents necessary to effect the terms of these Orders the Registrar of the Newcastle Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Family Law Act 1975 to execute such documents on behalf of such party.

IT IS FURTHER ORDERED THAT

16.

Leave is granted to the Applicant Wife, and any other party wishing to make a costs application, to file and serve such application within 28 days.

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

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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