Vail and Vail (No 2)
[2020] FamCA 1070
•14 December 2020
FAMILY COURT OF AUSTRALIA
| VAIL & VAIL (NO. 2) | [2020] FamCA 1070 |
| FAMILY LAW – PROPERTY – interim injunctions – where the Husband seeks discharge of various interim injunctions – where an undertaking as to damages was not given at the time the interim orders were made – whether the failure to proffer an undertaking as to damages is grounds for the orders to be discharged – contempt application on foot – whether the Court ought to hear the contempt application before the interim applications – orders not to be discharged – undertaking as to damages proffered and accepted nunc pro tunc. |
| Family Law Act 1975 ss 34, 75(2), 79 Family Law Rules 2004 r. 21.08 |
| Blueseas Investments Pty Ltd and Mitchell & McGillivray [1999] FamCA 745 Cameron v Cole [1944] ALR 130 Cheltenham & Gloucester Building Society v Ricketts [1993] 1 WLR 154 European Bank Ltd v Robb Evans of Robb Evans and Associates [2010] HCA 6 Finlayson & Finlayson [2002] FamCA 898 Jensz & Jensz (No 2) [2018] FamCA 353 Johnson & Johnson [1997] FamCA 32 Kerridge v Foley [1968] 1 NSWR 628 Medlow & Medlow [2017] FamCAFC 159 National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 Re F: Litigants in person guidelines [2001] FamCA 348 Robb Evans of Robb Evans and Associates v European Bank Ltd [2009] NSWCA 67 Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health [1989] FCA 556 |
| APPLICANT: | Ms Vail |
| RESPONDENT: | Mr Vail |
| FILE NUMBER: | SYC | 5604 | of | 2020 |
| DATE DELIVERED: | 14 December 2020 |
| PLACE DELIVERED: | Wollongong via Microsoft Teams |
| PLACE HEARD: | Wollongong |
| JUDGMENT OF: | Altobelli J |
| HEARING DATE: | 1 December 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batey of Counsel with Mr Wong of Counsel |
| SOLICITOR FOR THE APPLICANT: | Finn Roache Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Moses of Senior Counsel with Mr Roberts of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders
The application to discharge the orders made 9 September 2020 is dismissed.
The Court grants leave to the Applicant to file in Court an Undertaking as to Damages expressed to apply nunc pro tunc to the date the injunctive orders were made on 9 September 2020.
NOTATION
A.The Court notes the Undertaking referred to in order 2 above.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vail & Vail has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5604 of 2020
| MS VAIL |
Applicant
And
| MR VAIL |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain why the Court has declined the application made by the Respondent in this case to discharge the orders made by a Judge of this Court on 9 September 2020. This Court will, therefore, continue to deal with all other applications before it, including the application to vary the said orders.
Background
The Applicant Wife is 51 and the Respondent Husband is 52. They commenced cohabitation in 1995, married in 1999 and separated late in 2016 after a relationship of approximately 21 years. Over that time they developed a portfolio of seemingly successful businesses and property interests.
On 16 August 2020, the Wife commenced the present litigation and sought urgent orders. The matter came before a Judge of this Court on 20 August 2020. The Wife was represented by Senior Counsel, and the Husband represented himself. On 9 September 2020, the Judge delivered reasons for judgment and made the interim orders that are sought to be discharged and/or varied in the present application.
One of the main concerns raised on behalf of the Respondent is that no undertaking as to damages was required of the Applicant as a condition of receipt of the extensive suite of injunctive orders made against the Respondent and a number of third parties. It is clear, however, that the orders in question were intended to be temporary i.e. ‘…until the matter can be more fully litigated.’ The orders made are reproduced in full at Schedule A to these reasons. Order 1 clearly states:
(1) The matter is adjourned to interim hearing on a date to be fixed after 18 September 2020 in relation to any outstanding interim issues and following the husband filing his material.
On 19 November 2020, Registrar Aitken made order 1 in the following terms:
That Orders 4, 5, 8, 9 and 10 of the interim orders contained in the Initiating Application filed by the Wife on 16 August 2020, together with the Applications in a Case filed by the Husband on 14 October 2020 and 4 November 2020 and the Contempt Application filed by the Wife on 18 November 2020 are listed before Justice Altobelli at 10.00 am on 1 December 2020 for possible interim hearing.
The Present Application
When the matter came before this Court on 1 December 2020, the following applications were outstanding:
1)The Wife’s Application of 16 August 2020 insofar as it sought exclusive occupancy of a property at C Town; that the Husband pay the outgoings of that property; and an order for the appointment of an independent accountant.
2)
The Husband’s Application in a Case filed 14 October 2020 and amended on 4 November 2020, and a separate Application in a Case filed
4 November 2020. The orders sought by the Husband were conveniently consolidated into one minute of order which is reproduced at Schedule B to these reasons. Senior Counsel for the Respondent made it clear, however, that an additional primary order sought was that the injunctive orders made on 9 September 2020 be discharged, unless the Wife proffered an undertaking as to damages which had retrospective effect from 9 September. In the alternative, the Husband sought a variation of the interim orders made on 9 September. As it turned out, the Respondent Husband pressed the Court to discharge the orders even though the Wife offered an undertaking in the terms sought.
3)The Wife’s Contempt Application filed 18 November 2020.
4)
The Wife’s Response to the Husband’s Application in a Case filed
26 November 2020.
On 1 December 2020, the Wife sought to proceed with her Contempt Application. She contends that the Husband has failed to comply with the orders made and that his behaviour involved a flagrant challenge to the authority of the Court or a serious disregard of the Respondent’s obligations pursuant to Court order.
Concerns about contempt application
The Court raised its concern about how it could possibly deal with the Wife’s Contempt Application consistent with Rule 21.08 of the Family Law Rules 2004 (‘Rules’) given its multiple allegations, and given the limited time available to it. Counsel for the Applicant informed the Court that only some of the allegations would be pressed, but Senior Counsel for the Respondent pointed out that, even so, his client would need to respond to possibly hundreds of individual transactions amounting to alleged contempt in circumstances where, he contended, they needed to be individually pleaded and particularised.
Senior Counsel for the Respondent’s main argument continued to be that if the Contempt Application were pressed, in any form, any deficiency in the orders needed first to be addressed by the Court. There can be no suggestion, however, that the orders made on 9 September are not valid. It is settled by the highest authority that the decision of a superior Court, even if in excess of jurisdiction, is at the worst voidable and is valid unless and until it is set aside: Cameron v Cole [1944] ALR 130 at 590. Clearly the Respondent contends that the orders should be set aside or varied on the basis of an absence of an undertaking as to damages, and that this should be determined before the Contempt Application.
Before leaving the topic of the alleged deficiencies in the pleading of the Contempt Application, and without in any way pre-empting any decision of the Court following submissions to be made on this issue, the Court notes that the very nature of contempt proceedings involves potentially serious repercussions on the Respondent who is entitled to know the precise case against him: Medlow & Medlow [2017] FamCAFC 159 at [29].
The allegations against the Respondent must be properly pleaded and, where obviously needed, properly particularised. If but one example is taken, allegation 6 refers to multiple breaches of order 16. The Applicant contends in the Statement of Alleged Facts that on 21 September 2020, in breach of the orders, $706.43 was deducted from F Pty Ltd for ‘lease pay’. On one view the Husband would be entitled to know, for example, how, if such transaction in fact occurred, it constituted a breach of order 16 if, for example, such payment were permissible under another order, such as order 7?
The Evidence
In support of her case, the Wife sought to rely on the following documents:
a)An Amended Initiating Application filed 16 August 2020;
b)A Response to the Application in a Case filed 26 November 2020;
c)A Contempt Application filed 18 November 2020;
d)
An affidavit of the Wife in support of the Contempt Application filed
18 November 2020;
e)A Financial Statement filed 16 August 2020;
f)An affidavit of the Wife filed 16 October 2020;
g)An affidavit of the Wife filed 26 November 2020;
h)An Outline of Case dated 30 November 2020; and
i)A Court Book provided to the Registry of this Court on 27 November 2020.
In support of his case, the Husband sought to rely on the following documents:
j)An Amended Application in a Case filed 4 November 2020;
k)An Application in a Case filed 4 November 2020;
l)An affidavit of the Husband in support of the Amended Application in a Case filed 14 October 2020;
m)An affidavit of the Husband in support of the Application in a Case filed 4 November 2020;
n)A Tender Bundle entitled ‘[MrV1]’;
o)An Outline of Case filed 30 November 2020; and
p)A Court Book provided to Chambers on 26 November 2020.
Absence of an undertaking as to damages
The fact of the absence of any undertaking as to damages at the time the orders were made was common ground. The Wife was represented by Senior Counsel at the time, whereas the Husband was representing himself. Senior Counsel for the Husband drew the analogy between what occurred in this case to the making of an ex parte injunction and submitted Counsel should have raised with the judge, in order to avoid oversight, the question of whether an undertaking as to damages was appropriate, even though Counsel may have wished to contend that for some good reason, the undertaking should not be given. The Court accepts this as a general statement of principle: National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 (‘Bond Brewing’) at 559-561.
The Court also accepts Senior Counsel’s submissions about the need for an undertaking as to damages when an injunction is sought: Robb Evans of Robb Evans and Associates v European Bank Ltd [2009] NSWCA 67 at [27] – [35], noting the cases referred to in these passages. Thus, the undertaking is sometimes referred to as being the “price” of the interlocutory order: Kerridge v Foley [1968] 1 NSWR 628at 255; 630; Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health [1989] FCA 556at 372; Cheltenham & Gloucester Building Society v Ricketts [1993] 1 WLR 1545at 1551.
Counsel for the Applicant, however, referred to and relied on the Full Court’s decision in Blueseas Investments Pty Ltd and Mitchell & McGillivray [1999] FamCA 745 (Nicholson CJ, Lindenmayer and O’Ryan JJ) (‘Blueseas Investments’) and submitted that the practice about undertakings as to damages in family law was different to that in the equity courts. This case remains relevant even though an undertaking as to damages had been offered in that case, and the question was its adequacy should the Applicant be impecunious and thus unable to meet the undertaking. For present purposes, only the following paragraphs are relevant:
50. The common law position appears to be that the Court has the discretion not to enforce an undertaking as to damages and this is because the undertaking is given to the Court and not to the other party: see Barratt Manchester Ltd v Bolton MBC [1998] 1 WLR 1003 at 1009; Cheltenham & Gloucester Building Society v Ricketts [1993] 1 WLR 1545 at 1551; Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1979-81) 146 CLR 249 at 311-2.
…
54. It should be noted that these principles in relation to undertakings as to damages are principles of equity derived from civil litigation. There is, we think, an additional highly relevant matter that distinguishes litigation under the Family Law Act from ordinary civil litigation: that is the fact that very often the wealth of the parties is controlled by one rather than both of them. This in turn means that it is not uncommon for one of the parties to have no means of meeting any liability that may be incurred pursuant to an undertaking as to damages.
…
68. Having regard to the view that we have taken about these matters, and having regard to the applicable principles, it is apparent that we do not accept that there are any special features about this case that make an undertaking as to damages particularly significant. In particular, we do not think that the possibility that damages awarded in relation to it may not be met has any significant effect upon the balance of convenience.
Discussion
The significance of the Respondent representing himself on 9 November 2020 must be considered as it was an important part of Senior Counsel’s case in support of his contention that the orders be set aside for failure to require an undertaking. Arguably the obligations imposed on Judges by Full Court authorities including Johnson & Johnson [1997] FamCA 32 and Re F: Litigants in person guidelines [2001] FamCA 348 place equally onerous obligations on Counsel to assist the Court in this regard.
In Bond Brewing, whilst the Victorian Court of Appeal seemed to recognise the nearly universal need for an undertaking as to damages in interim injunctions, the Court also recognised that the failure to offer an undertaking was not of itself a sufficient ground for discharging the order in circumstances where the Respondent had not suffered loss in consequence of the order: see page 561. In this regard, Senior Counsel for the Respondent conceded that there was no evidence about loss before the Court.
The High Court in European Bank Ltd v Robb Evans of Robb Evans and Associates [2010] HCA 6 (French CJ, Gummow, Hayne, Heydon and Kieffel JJ) set aside the orders made by the New South Wales Court of Appeal in Robb Evans of Robb Evans and Associates v European Bank Ltd [2009] NSWCA 67. In the context of considering what damages flow from an undertaking as to damages, the High Court at [14] explained an important feature of such an undertaking:
[14]... The point made by Farwell LJ in Re Hailstone; Hopkinson v Carter and repeated by Cussen J in Victorian Onion and Potato Growers’ Assn v Finnigan (No 2) and by Neill LJ in Cheltenham & Gloucester Building Society v Ricketts is important here. It is that the undertaking as to damages is given to the court, for enforcement by the court; it is not a contract between parties or some other cause of action upon which one party can sue the other.
This raises an important question in this case: if an undertaking as to damages had been given, and if it is for the Court to enforce, and not a contractual or other right of the Respondent to assert, then how can a Respondent in a case where no such undertaking is given complain about the same, and seek to discharge the injunction solely on that basis?
It is clear, therefore, that not only would the enforcement of any undertaking as to damages that might have been given in this case be entirely at the Court’s discretion, but there must be some considerable doubt about the right of the Respondent to enforce the same before the discretion is exercised in his favour and damages are assessed. This Court suggests, therefore, that whatever rights the Respondent has in this case, where no undertaking was sought or proffered, it is highly questionable whether such rights extend to seeking the discharge of the orders solely on that basis. The Respondent would be entitled to come before the Court on the first occasion when it might be possible to review the terms of what is clearly an interim injunction, and request an undertaking as a condition of its continuation on whatever basis the parties might decide, or the Court imposes.
Even though the Full Court of the Family Court in Blueseas Investments was considering a factual situation quite different to the present, it is clear from [46] of the reasons that statements of general principle were being made. At [54] the Full Court identified one distinguishing feature between family law and the principles of equity derived from civil litigation, being that very often, and indeed arguably on the facts of the present case, the wealth of the parties is controlled by one rather than both of them. In Blueseas Investments, their Honours observed that this could mean one of the parties would have no means of meeting any liability that may be incurred pursuant to an undertaking as to damages. There is no suggestion that the Wife in the present case could not meet any such hypothetical liability.
Perhaps the more interesting question is how such liability would be treated in the context of an alteration of property interests under section 79 of the Family Law Act 1975 (‘Act’), which takes into account the matters referred to in subsection 75(2) of the Act. The potential circularity of creating a liability pursuant to an undertaking as to damages arising under an injunction between spouses, and then taking it into account in an alteration of their property interests, perhaps provides a practical explanation for why, if this is the case, family law has departed from equity as it regards such undertakings.
The Full Court considered that impecuniosity of a party is relevant to the issue of the balance of convenience: see [57]. Their Honours then go on to state that: ‘…It would be unconscionable to accept a broad principle that… impecuniosity… would be given such weight as to prevent an injunction being granted when all the requirements for the grant… are present.’. It is reasonable to assume that the Full Court in Blueseas Investments, and indeed in the cases generally, limit the concept of impecuniosity to impoverishment in the financial sense. In family law, however, the impoverishment that is often experienced by applicants such as the present Applicant is in fact about information, not finances. Arguably, the Applicant’s concern was about financial information asymmetry. Thus, for example, orders 9, 10, 12, 14 and 15 made by the Judge are not about money directly, they are about information. The Applicant contends that this information is primarily controlled by the Respondent, and that without access to such information she cannot properly bring her claim under Part VIII of the Act. One can understand why, therefore, in such cases family law might adopt a different approach to the equity Courts.
The Court recognises, as submitted by Senior Counsel for the Respondent, that the injunction made on 9 September 2020 may potentially affect the rights of third parties, thus accentuating the need for an undertaking as to damages in relation to them. The situation might be different if a genuine third-party adversely affected by the orders sought relief on the basis of the absence of an undertaking.
For the reasons stated above, and in circumstances where the Husband did not seek to challenge the orders of 9 September 2020 by way of an appeal, there is no basis for this Court to discharge the orders merely on the basis that no undertaking as to damages was requested or proffered.
The effect of an undertaking proffered after the making of the orders on 9 September 2020.
Exhibit A1 was the Applicant Wife’s Undertaking as to Damages proffered on 1 December 2020 and specifically expressed to apply nunc pro tunc to the date the injunctive orders were made on 9 September 2020. Senior Counsel for the Respondent doubted the validity of any purported retrospective undertaking, at least as regards any damage incurred in the intervening period. The Court of Appeal in the Bond Brewing case at 561 seemed to contemplate the possibility of a retrospective undertaking as to damages. In Jensz & Jensz (No 2) [2018] FamCA 353 Macmillan J doubted the ability of a Court to require a retrospective undertaking but, of course, in this case the Applicant proffers one.
It would be very surprising if a broadly stated legislative provision such as section 34 of the Act, empowering the Court as it does to: ‘ ….make orders of such kinds…as the Court considers appropriate.’, did not enable the making of orders nunc pro tunc. This was recognised by the Full Court in Finlayson & Finlayson [2002] FamCA 898. It would be equally surprising if the Court were unable to note an undertaking as to damages nunc pro tunc.
This Court therefore accepts the Applicant Wife’s Undertaking as to Damages proffered on 1 December 2020 which is specifically expressed to apply nunc pro tunc from the date the injunctive orders were made on 9 September 2020.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Altobelli delivered on 14 December 2020.
Associate:
Date: 14 December 2020
Schedule A
_____________________________________________________________________
UPON APPLICATION made to the Court AND UPON HEARING Mr Campton SC of Counsel for the Applicant and the Respondent in person.
IT IS ORDERED THAT:
The matter is adjourned to interim hearing on a date to be fixed after 18 September 2020 in relation to any outstanding interim issues and following the husband filing his material.
The husband is to file and serve a response, financial statement and supporting affidavit by 18 September 2020.
It is ordered by consent and pending further order that
The husband pay the wife $10,000 per month by way of spousal maintenance.
The husband pay the school fees of X VAIL and Y VAIL (“the children”).
The husband pay the mortgages on the properties at:
(a) B Street C Town NSW …;
(b) 1 D Street City E NSW …; and
(c) 2 D Street City E NSW ….
The parties will not further encumber or increase any indebtedness that the properties identified in Order 5 are subject to.
The husband be restrained by injunction from:
(a) Doing any act or thing that may cause the assets or income of
(i)F Pty Ltd;
(ii)G Pty Ltd;
(iii)H Pty Ltd;
(iv)J Pty Ltd;
(v)K Pty Ltd;
(vi)L Pty Ltd;
(vii)Vail Superannuation;
(viii)Vail Unit Trust;
(ix)Shares in M Pty Ltd;
(x)Shares in N Pty Ltd;
(xi)Shares in O Pty Ltd; and
(xii)Shares in P Pty Ltd.
(Collectively known as the “Vail Group”).
To be disbursed, sold, transferred, signed, encumbered, alienated or leased in any manner whatsoever, except in the ordinary course of business and as properly documented in the books, financial statements and accounts of the Vail Group.
(b)Selling, obtaining a mortgage, assigning, alienating or further encumbering any of the Vail Properties or any other real property in which the parties hold an interest.
(c)Taking any steps to remove the Applicant wife as a shareholder, employee or officer of any company or entity in the Vail Group.
(d)Exercising his Power of Appointment to appoint a new Trustee and/or sell, transfer, assign, encumber or alienate the assets of any trust in which the parties have an interest as a beneficiary or in relation to which they were a beneficiary since the commencement of the marriage.
Without first giving the Wife not less than 28 days’ notice in writing of the Husband’s intention to do so and/or details and documents relating to such proposed transactions, and that the Applicant wife provides her consent in writing.
The husband be restrained by injunction from:
(a)Using any assets and/or loan facilities in the name of the wife, the Vail Group, the husband and/or in joint names to the entities G Pty Ltd or H Pty Ltd without the written consent of the wife.
That within 48 hours of the date of delivery of these orders and pending further order of the Court, the husband is to attend upon the relevant bank, or financial institution for the purposes of doing all things and signing all documents to authorise, facilitate and to provide online viewing access to the wife in respect to the following accounts:
(a)…07, held in the name of Mr Vail, with the Commonwealth Bank of Australia (“CBA”);
(b)…15 held in the name of F Pty Ltd or Mr Vail on behalf of F Pty Ltd with CBA;
(c)…26 held in the name of J Pty Ltd or Mr Vail on behalf of J Pty Ltd with CBA;
(d)…38 held in the name of K Pty Ltd or Mr Vail on behalf of K Pty Ltd with CBA;
(e)…29 held in the name of L Pty Ltd or Mr Vail on behalf of L Pty Ltd with CBA;
(f)…19 held in the name of Vail Unit Trust or Mr Vail on behalf of Vail Unit Trust with R Bank.
That within 14 days of the date of delivery of these orders the Husband is to provide the following documents by way of full and frank disclosure, to the Wife's solicitors:
Respondent Husband
(a)His personal tax returns for the year ended 30 June 2018, 30 June ended 2019 and 30 June ended 2020 and all notices of assessment for those years.
(b)All bank statements representing all accounts, with all banks and financial institutions in his personal name, in U Company including any joint accounts with a third party from 1 January 2017 to date;
(c)(All bank statements evidencing the Husband’s share, foreign exchange, interest rate and any other trading with CommSec, Q Company, R Bank Ltd and any other from 30 December 2018 to date.
F Pty Ltd
(d)The financial statements and the tax returns for the years ended 30 June 2018, 20 June 2019 and 30 June 2020 including notices of assessments;
(e)The BAS statements for F Pty Ltd for the past three years;
(f)All documents evidencing the income and monies which the Respondent husband receives from F Pty Ltd;
(g)All documents evidencing all loans to F Pty Ltd from and on behalf of the Wife and Husband either jointly or individually;
(h)The shareholder agreement and company constitution;
(i)All documents evidencing the removal of the Wife as Director of F Pty Ltd, including any document executed by her.
J Pty Ltd
(j)Financial statements for the year ended 30 June 2018, 30 June 2019, 30 June 2020;
(k)Tax returns for the year ended 30 June 2018, 2019, 2020 including notices of assessment;
(l)All bank accounts in the name of held on behalf of J Pty Ltd from 1 January 2019 to date;
(m)All applications to a financial institution and/or the Australian Government for a loan to J Pty Ltd.
K Pty Ltd
(n)Financial statements for the year ended 30 June 2018, 30 June 2019, 30 June 2020;
(o)Tax returns for the year ended 30 June 2018, 2019 , 2020 including notices of assessment;
(p)All bank accounts in the name of held on behalf of K Pty Ltd from 1 January 2019 to date;
(q)All applications to a financial institution and/or the Australian Government for a loan to K Pty Ltd.
L Pty Ltd
(a)Financial statements for the year ended 30 June 2018, 30 June 2019, 30 June 2020;
(b)Tax return to the year ended 30 June 2018, 2019, 2020 including notices of assessment;
(c)All bank accounts in the name of held on behalf of L Pty Ltd from 1 January 2019 to date;
(d)All applications to a financial institution and/or the Australian Government for a loan to L Pty Ltd.
Vail Unit Trust
(e)Financial statements for the year ended 30 June 2018, 30 June 2019, 30 June 2020;
(f)Tax return to the year ended 30 June 2018, 2019, 2020 including notices of assessment;
(g)All bank accounts in the name of held on behalf of Vail Unit Trust from 1 January 2019 to date.
Vail Superannuation
(h)All documents evidencing all assets owned by Vail Superannuation;
(i)All documents evidencing the details as to how and why the self-managed super fund was deregistered;
(j)All documents including all correspondence between Respondent husband and the ATO;
(k)All Documents evidencing how the monies were applied and/or transferred including any other self-managed super fund or superannuation fund.
N Pty Ltd
(l)All documents relating to the sale of the W Business in 2019 including all documents evidencing any monies paid to Respondent husband personally/directly or any entity to which the Husband is a director/shareholder or of which he has an interest;
(m)All bank statements held by and on behalf of N Pty Ltd for the past three years;
(n)All correspondences and documents relating to the sale of the W2 Business including documents evidencing any funds received by F Pty Ltd and/or M Pty Ltd or the Respondent husband.
M Pty Ltd
(o)All documents relating to the sale of the W Business in 2019 including all documents evidencing any monies paid to F Pty Ltd;
(p)All bank statements held by and on behalf of M Pty Ltd for the past three years;
(q)All correspondences and documents relating to the sale of the W2 Business including documents evidencing any funds paid to Husband personally/directly or to any entity to which he is a director, shareholder or of which he has an interest.
G Pty Ltd
(r)All financial statements for the period 30 June 2018, 30 June 2019, 30 June 2020;
(s)All tax returns for the period 30 June 2019 and 30 June 2020, and the notices of assessment for the same period;
(t)The Respondent Husband's employment contract;
(u)All payslips and income for the Respondent Husband;
(v)All documents evidencing all loans (including convertible debt, support for overdraft facilities and working capital monies) to G Pty Ltd from and on behalf of the Wife, Husband, F Pty Ltd or any company or entity belonging to the Vail Property Group including all monies which have been repaid, for the past five (5) years.
Real Property
(w)All documents evidencing the home loans, mortgages and liabilities in relation to:
(i)B Street C Town New South Wales (having Folio Identifier …);
(ii)1 D Street City E, New South Wales … (having Folio Identifier …); and
(iii)2 D Street City E New South Wales … (having Folio Identifier …).
It is further ordered pending further order that
The husband is not to provide more than $5,000 to G Pty Ltd or H Pty Ltd from money standing to the credit of any of the entities in the Vail Group without the written consent of the wife.
The husband is to notify the wife within 48 hours of any amount paid to G Pty Ltd or H Pty Ltd from the assets of the companies comprising the Vail Group.
The husband is restrained by injunction from withdrawing more than $25,000 per seven days from the J Pty Ltd account without the written consent of the wife.
The husband is to notify the wife of any withdrawals or payments made from the J Pty Ltd account within seven days of them being so paid or withdrawn.
Within seven days of the date of delivery of these Orders the husband is to set out with precision:
(a)When he received the monies in the sum of approximately $900,000 paid to G Pty Ltd from the Australian government;
(b)Into which account this money was paid, including the BSB and account number;
(c)All payments from that account; and
(d)The remaining balance of the account.
The husband is injuncted and restrained from using the remaining funds in the F Pty Ltd Commonwealth Bank account ending …15 other than to reduce the Westpac credit card and St George credit card balances to nil.
The husband is to comply with order 16 within 48 hours of these orders being issued, unless both parties agree in writing otherwise.
Upon the husband complying with order 16 herein the parties are injuncted and restrained from using the Westpac credit card and the St George credit card and for any existing direct debit payments after 26 September 2020 unless by agreement in writing.
The husband is permitted to maintain the direct debits on the Westpac and St George credit cards up to 26 September 2020 only and thereafter they are to be terminated, on the following basis:
(a)He informs the wife of the direct debits, their nature, and to whom they are paid within that month; and
(b)The husband is to repay any direct debit being debited to either credit card and bring the balance of the two credit cards back to nil by no later than 30 September 2020.
Leave is granted to each of the parties to approach my Associate in Chambers for an urgent listing should any issues arise in relation to compliance with these Orders.
These orders have been amended pursuant to paragraph 17.02(1)(e) of the Family Law Rules 2004.
It is noted that
The husband agrees to the injunction set out in Order 6(d) of the wife’s interim application filed 16 August 2020, save that he and the wife may need to sell or assign shares if the sale of G Pty Ltd proceeds, which he indicates is close to occurring.
Schedule B
_____________________________________________________________________
MINUTE OF ORDERS SOUGHT BY HUSBAND
Definitions:
A. "Wife's entity" means Ms Vail Business ABN ….
A) the Vail Group" means
a. F Pty Ltd
b. G Pty Ltd;
c. H Pty Ltd
d. J Pty Ltd;
e. K Pty Ltd;
f. L Pty Ltd;
g. Vail Superannuation;
h. Vail Unit Trust;
i. Shares in M Pty Ltd;
j. Shares in N Pty Ltd;
k. Shares in O Pty Ltd; and
l. Shares in P Pty Ltd.
(Collectively known as the “Vail Group”).
ORDERS:
That the Orders made 9 September 2020 be discharged.
In the alternative to the orders being discharged and on the basis that the Wife proffers an undertaking as to damages to the Court which has retrospective operative effect from 9 September 2020, the Orders made 9 September 2020 (“the Orders”) be varied as follows:
2.1 Order 3 of the Orders be varied to provide the following: “That subject to the variation of Orders 13 of the Orders (as sought below) and provided the husband can draw on income and/or resources within the Vail Group as defined in the Orders, the Husband pay to the Wife $10,000 per month by way of spouse maintenance”.
2.2 That Order 8(a) of the Orders stand discharged.
2.3 Order 11 stand discharged.
2.4 In the event Order 11 is not discharged that Order 11 be varied to provide the following: “The husband is not to provide more than $5,000 to G Pty Ltd or H Pty Ltd from the money standing to the credit of any of the entities in the Vail Group without providing the Wife 7 days notice of his intention to do so including advising the Wife of the quantum of funds he proposes to invest in either G Pty Ltd or H Pty Ltd, and after giving notice to the Wife of his intention to provide or pay money to G Pty Ltd or H Pty Ltd he shall, after the expiration of 7 days, be permitted to draw upon the funds held within the Vail Group for that purpose”.
2.5 Order 13 be varied to provide the following: ““That the Husband is restrained by injunction from withdrawing funds from the J Pty Ltd account without the written consent of the Wife other than for the purpose of meeting expenses in the ordinary business expenses and/or for the purpose of complying with Order 3 and 4 of the Orders made 9 September 2020.
2.6 Order 14 be discharged and in lieu thereof on the 1st day of each calendar month the Husband provide to the Wife a copy of the Bank Statement identifying all of the transaction undertaken on the J Pty Ltd account.
That Order 16 stands discharged.
That the parties do all acts and things and sign all documents to unfreeze the F Pty Ltd Trading Bank Account, with account ending …15.
That the Husband shall forthwith be permitted to redraw the following monies from the F Pty Ltd Commonwealth Bank Account ending …15 ("the F Pty Ltd Trading Account"), namely:
5.1 the sum of $200,000; and
5.2 the sum of $100,000 to the Husband such sum to be categorised by way of partial property settlement.
That the husband shall forthwith cause J Pty Ltd to deposit $100,000 to the F Pty Ltd Trading Account from the funds standing to the credit of the J Pty Ltd bank account (it being noted there is presently $140,000 standing to the credit of that account) for the purpose of facilitating compliance with order 4.
That the Husband be permitted to serve a copy of these Orders upon CBA.
That within 14 days of G Pty Ltd receiving any R&D grant, the husband shall do all acts and things to repay the $200,000 plus interest to the F Pty Ltd Trading Account.
The Wife be restrained from serving a copy of any Orders of this Court upon third parties without the leave of the Court.
That the husband be permitted to redraw on the assets of the Vail Group for the purpose of complying with the orders of 9 October 2020.
That the Wife is hereby restrained from attending upon the offices of J Pty Ltd and/or communicating with their employees without the consent of the Husband in writing.
That the Wife pay the Husband's costs of and incidental to this application.
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