Satsuma and Tenura

[2013] FamCA 952

FAMILY COURT OF AUSTRALIA

SATSUMA & TENURA [2013] FamCA 952

FAMILY LAW – PROPERTY – Interim – Disclosure – Where orders were made by consent – Where there was still issues of disclosure outstanding.

Family Law Act 1975 (Cth) s 106B

APPLICANT: Ms Satsuma

RESPONDENT: Ms Tenura

FILE NUMBER: BRC 1095 of 2013

DATE DELIVERED: 11 November 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest

HEARING DATE: 11 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hackett

SOLICITOR FOR THE APPLICANT: Evans & Company
Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Blond

SOLICITOR FOR THE RESPONDENT: Okamoto Lawyers

Orders

IT IS ORDERED BY CONSENT, UNTIL FURTHER ORDER

1. That the proceedings continue against Ms Tenura in her personal capacity as Third Party as well as legal personal representative of the deceased husband, Mr A Satsuma.

2. That until trial or earlier order, Ms Tenura by herself, her servants or agents be restrained from dealing with any assets of the deceased husband, Mr  A Satsuma, under either the Country C or Australian Wills or the shares and assets of the company known as B Planning company Limited, a Country C Incorporated Company, Company Number … (hereafter referred to as “B Planning Company Limited”) outside of the ordinary course of business of B Planning Company Limited unless with the written agreement of the wife or further Court Order.

IT IS NOTED that it is intended that the respondent Ms Tenura will provide a written undertaking to the Court in the very near future in terms equivalent to paragraph 2 just ordered and it is the Court’s understanding that the applicant wife will consent to that undertaking being filed with the Court and applying in lieu of paragraph 2 from the time of the filing of such affidavit until further order.

1. That within thirty (30) days:

   (a)Ms Tenura produce to the wife, via her solicitor, the following documents:

   (i)the current passport of the deceased Mr A Satsuma at the time of his death;

   (ii)Company Register for the B Planning company Limited and/or any other document or record which shows the history and current status of and in respect of the following:

   A.Shareholders of the company;

   B.Officeholders of the company, including directors and secretaries or the equivalent;

   C.Company address and details.

   (b)       Ms Tenura file and serve an affidavit which contains details of:

   (i)All dealings which she has had at B Planning Company Limited as and from 1 February 2012 to the date of her deposing to such affidavit; and

   (ii)Any receipt of any funds, assets or benefit of any kind by her from the deceased in the period 1 February, 2012 to the date of her deposing to such affidavit.

2. That following compliance with Order 3 and 8, the parties shall engage any single experts necessary to value any item of property for which the value is in dispute as agreed, but failing agreement as follows:

   (a)With respect to Australian property, the wife shall panel three (3) experts for Ms Tenura to select from within seven (7) days but failing her doing so, the wife shall choose AND IN RESPECT OF Country C Assets Ms Tenura shall panel three (3) experts for the wife to select from within seven (7) days but failing her doing so, Ms Tenura shall choose;

   (b)Such expert shall be engaged pursuant to Part 15.5 of the Family Law Rules and shall be jointly instructed by the parties with the wife’s solicitor to prepare the joint letter of instruction and Ms Tenura’s solicitor to sign and return or propose changes within seven (7) days failing which the joint letter of instruction shall be sent; and

   (c)       The cost of the experts shall be met equally by the parties.

3. That to remove any doubt with respect to Order 4, where there is dispute with respect to whether or not certain assets, liabilities, financial resources and/or superannuation forms property of the parties of the marriage as defined under the Family Law Act 1975, for instance the assets of B Planning Company Limited, such disputed items of property shall be the subject of valuations pursuant to Order 4 PROVIDED ALWAYS THAT the issue of who ultimately bears the costs of the experts and in what proportion be determined by the Trial Judge.

4. That there be liberty to apply with respect to Order 5.

5. That each party’s costs are reserved and certification for Counsel.

IT IS FURTHER ORDERED

1. That within thirty (30) days the respondent, Ms Tenura, provide to the wife, via her solicitors the following documents:

   (a)Statements, passbooks and deposit books for any bank account, credit union or building society account (that disclose the names and account numbers of such accounts) for the period from 1 February 2011 until the present date in the deceased husband’s name or the name of his estate;

   (b)Statements, passbooks and deposit books for any bank account, credit union or building society account (that disclose the names and account numbers of such accounts) for the period from 1 February 2012 until the present date in her name, either as personal representative for the estate of her late father or in her own right;

   (c)Statements, passbooks and deposit books for any bank account, credit union or building society account (that disclose the names and account numbers of such accounts) for the period from 1 February 2011 until the present date, for entities that the deceased husband had an interest in and/or controlled, whether in Australia, Country C or elsewhere, including any entities that the said Ms Tenura has acquired an interest in and/or control of via her father since 1 February 2012;

   (d)Income tax returns and assessments and financial records (for the entities only) for the previous three financial years whether in her name or in the name of an entity in which she has an interest and/or control that she has acquired via her father since 1 February 2012, whether in Australia, Country C or elsewhere.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1095 of 2013

Ms Satsuma

Applicant

And

Ms Tenura

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before me today, and still in dispute between the parties, is an Application in a Case filed by the applicant wife in these proceedings, Ms Satsuma, for particular orders in respect of disclosure.  In context, this application was part of a much larger Application in a Case listed for hearing by me today in the substantive property proceedings between her and the personal representative of her late husband’s estate, namely his adult daughter of a previous marriage, Ms Tenura, in respect of a number of matters. 

2. Those matters included an application for the said Ms Tenura to be joined to the proceedings as a party in her own right as opposed to the right in which she was already joined as a party, namely as personal representative of her late father’s estate. That application was resolved by agreement between the parties with the respondent, Ms Tenura, agreeing to an order being made in those terms. 

3. Additionally there was relief sought by the applicant which could be described as injunctive relief or Mareva relief whereby she was seeking to have the respondent, Ms Tenura, restrained in certain respects from dealing with certain property. That, too, has been resolved by agreement between the parties in the first instance by an injunction being made by the Court by consent until an Undertaking by Ms Tenura in the same terms is filed with the Court to replace the need for the Court’s Order enjoining her from certain behaviour.

4. Other issues involving disclosure that is required of Ms Tenura were agreed and resolved by way of orders being made by consent.  Similarly issues in respect of the appointment of expert witnesses for the valuation of extensive property both in Australia and Country C were sought and ultimately agreed to in terms that are yet to be drafted of which the Court is aware.  Those orders will be made by consent. 

5. There remained, however, at the conclusion of determination of what was consented to and what was in dispute, a couple of matters particularly relating to disclosure.  The applicant wife sought orders that within 30 days Ms Tenura produce to the wife through her solicitors a specific list of documents.  The list included documents set out in three categories in paragraph 3(a) of a draft order that was put to the Court by counsel for the wife. 

6. The application was opposed by counsel for the respondent, Ms Tenura, on the basis that it was too broad, sought documents that were not relevant to the proceedings, and was effectively a fishing expedition.  It was submitted that the orders sought should not be made. 

7. I have heard submissions from both parties and considered the facts that are not in dispute between the parties. Those relate to a transfer of shares in a Country C company that were owned solely by the applicant wife. The transfer was effected, apparently, in Country C by the deceased husband causing such transfer to be made to his daughter without the knowledge or consent of the wife herself. The wife makes application for final relief in the substantive proceedings pursuant to s 106B of the Family Law Act for that transfer to be set aside. 

8. I consider that the categories of documents that the wife seeks to have disclosed to her by Ms Tenura are in the substantive portion relevant to the issues in dispute.  However, I was somewhat concerned that in the exact terms that the orders were framed they went a little further than was appropriate, at this point in time, on the facts as I understand them to be, for justice and equity in the substantive property proceedings to be done between these parties. 

9. Accordingly, I made the orders in the terms that I did, considering the wife is entitled to disclosure of all of those documents in the lists that were documents that were her husband’s, either in his own name or entities that he owned and/or controlled from a date that was a year before the separation of the parties, having regard to the terms of the rules that relate to disclosure.  I have had regard to the evidence that is uncontested, namely, that the wife’s shares in the Country C company B Planning Company Ltd were transferred from her to the respondent, Ms Tenura, apparently by the deceased husband without the authority of the wife or her knowledge and consent.  I have had regard to the fact that such disposition is sought to be set aside by the wife in these proceedings. 

10. I determine that documents in the possession of Ms Tenura relating to her bank accounts and other financial institution accounts from the day of separation until the present date are indeed relevant documents and must be disclosed by her.  Indeed, I was satisfied that such documents in respect of accounts in the name of entities that the deceased husband owned and/or controlled from the period from a year prior to separation to the present date, should be disclosed and, indeed, for a similar period in respect of documents of entities that Ms Tenura now owns or controls, the ownership and/or control of which she has acquired from the deceased husband, her father, from the date of separation.  There is no evidence before the Court that she acquired any interest in or control of any other entities in the year prior to separation.  In those circumstances I consider that the orders I ultimately made, which were somewhat different in form to those sought by the wife, were appropriate in circumstances and so made them.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 18 November 2013.

Associate: 

Date:  4 December 2013