Small and Small - [2016] FamCA 987

FAMILY COURT OF AUSTRALIA

SMALL & SMALL

[2016] FamCA 987

FAMILY LAW – INJUNCTIONS – Interim – wife seeks “assurance” that trusts will not be altered – husband not forthcoming – when then seeks undertaking – solicitor for husband says husband will not alter structure – sufficient basis to find interim injunction is proper – adjourned for four weeks.

Family Law Act 1975 (Cth)

Blueseas Investments Pty Ltd & Mitchell & McGillivray (1999) FLC 92-856
Mullen & De Bry [2006] FamCA 1380

Waugh & Waugh (2000) FLC 93-052

APPLICANT:

Ms Small

RESPONDENT:

Mr Small

FILE NUMBER:

MLC

9067

2016

DATE DELIVERED:

14 November 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

14 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr T. Puckey

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Ms R. Wheeler

SOLICITOR FOR THE RESPONDENT:

R B Legal Pty Ltd

Orders

That paragraphs 2(a), (b) and (c) and 3 of the application filed 10 November 2016 by the wife is adjourned to 9.00am on 2 December 2016.
That until the conclusion of the hearing on the return date and unless with the written consent of the wife, the husband, by himself, his servants and agents, whether personally or as a director or shareholder of a company or as a trustee of a trust or in any other capacity, be and is hereby restrained from:
(a)otherwise than in the ordinary course of business, and upon prior email to the wife, disbursing any monies received by himself or his companies from Yusen Logistics Co Ltd (or any associated entity)
(b)altering or amending the legal or equitable structure of the Small LLP Group entities or any other entities under his direct or indirect control, including by:
(i)altering the corporate structure of any company;
(ii)varying the terms of any trust deed; and
(iii)using any power of appointment or like power pursuant to a trust deed to remove existing trustees or beneficiaries, or to appoint additional trustees or beneficiaries.
That the costs of both parties of this day are reserved to the return date.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That the reasons this day be transcribed and be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Small & Small 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 MELBOURNE

FILE NUMBER: MLC 9067 of 2016

Ms Small

Applicant

And

Mr Small

Respondent

REASONS FOR JUDGMENT

By application filed on 10 November 2016 Ms Small (“the wife”) applies a number of orders. The only one that is of significance for the purposes of these reasons is 2(a) which relates to an injunction. It is common ground between the parties that discovery can wait until the next return date. The application for…

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 Small and Small

Details

AGLC: Small and Small [2016] FamCA 987
Case: [2016] FamCA 987
Decision Date: 14 November 2016

CaseChat Overview and Summary

In the matter of *Small and Small*, Cronin J of the Family Court of Australia considered an application by the wife seeking interim injunctive relief against the husband. The dispute concerned the husband's alleged dissipation of assets and alteration of corporate structures, which the wife contended would prejudice her claim in ongoing family law proceedings.

The primary legal issues before the court were whether to grant interim injunctions restraining the husband from disbursing monies received from a specific source and from altering the legal or equitable structure of entities under his control. The court was required to assess the likelihood of the wife establishing a prima facie case, the balance of convenience, and whether the injunctions were necessary to preserve assets for the ultimate division between the parties.

Cronin J applied the principles governing the grant of interlocutory injunctions, considering the need to preserve the status quo pending final determination. The court found that the wife had raised serious questions to be tried regarding the husband's conduct and that the potential for dissipation of assets and restructuring of entities warranted protective measures. The court ordered that, pending the return date, the husband be restrained from disbursing monies received from Yusen Logistics Co Ltd otherwise than in the ordinary course of business and upon prior email notification to the wife. Furthermore, the husband was restrained from altering the legal or equitable structure of entities under his control, including changes to corporate structures, trust deeds, or the appointment or removal of trustees and beneficiaries. The costs of the day were reserved.

Orders

Orders of the court

That paragraphs 2(a), (b) and (c) and 3 of the application filed 10 November 2016 by the wife is adjourned to 9.00am on 2 December 2016.

That until the conclusion of the hearing on the return date and unless with the written consent of the wife, the husband, by himself, his servants and agents, whether personally or as a director or shareholder of a company or as a trustee of a trust or in any other capacity, be and is hereby restrained from:

(a) otherwise than in the ordinary course of business, and upon prior email to the wife, disbursing any monies received by himself or his companies from Yusen Logistics Co Ltd (or any associated entity)

(b) altering or amending the legal or equitable structure of the Small LLP Group entities or any other entities under his direct or indirect control, including by:

(i) altering the corporate structure of any company;

(ii) varying the terms of any trust deed; and

(iii) using any power of appointment or like power pursuant to a trust deed to remove existing trustees or beneficiaries, or to appoint additional trustees or beneficiaries.

That the costs of both parties of this day are reserved to the return date.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

That the reasons this day be transcribed and be made available to the parties.

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.