Vail and Vail (No 3) - [2021] FamCA 59

FAMILY COURT OF AUSTRALIA

VAIL & VAIL (NO. 3)

[2021] FamCA 59

FAMILY LAW – PROPERTY – interim property – whether an independent accountant be appointed to prepare financial statements and tax returns – whether a receiver be appointed to manage the various commercial entities and assets of the parties – whether the wife be paid spousal maintenance in addition to that already ordered – whether the wife be reappointed as director of one of the parties’ joint companies – whether there be interim property distribution – access to joint bank accounts – whether a single joint expert be appointed to value the parties’ real estate – whether restrictions be imposed on further investments – whether drawings be permitted from the parties’ joint assets and/or capital – various injunctive orders sought – injunctive relief ordered – interim applications otherwise dismissed.

Family Law Act 1975 (Cth) ss 72, 73, 74, 75, 80(1)(k), 106A, 114
Corporations Act 2001 (Cth)

D Pty Ltd and Ors & Sadler and Ors [2016] FamCAFC 187
Furtado & Furtado [2011] FamCA 1018
Malloy and Anor & Stopford Malloy [2017] FamCAFC 205
Strahan & Strahan(interim property orders) [2009] FamCAFC 166

APPLICANT:

Mr Vail

RESPONDENT:

Ms Vail

FILE NUMBER:

SYC

5604

2020

DATE DELIVERED:

18 February 2021

PLACE DELIVERED:

Sydney via videoconference

PLACE HEARD:

Wollongong

JUDGMENT OF:

Altobelli J

HEARING DATE:

1 & 15 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Moses SC and Mr Roberts

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Batey and Mr Wong on 1 December 2020
Ms Gillies SC and Mr Wong on 15 December 2020

SOLICITOR FOR THE RESPONDENT:

Finn Roache Lawyers

IT IS ORDERED THAT

The orders made by Henderson J on 9 September 2020 be discharged save for orders 3, 4, 5, 9, 10, 15, 16, 17, 18, and 19.
For the purposes of these orders, the Vail Group consists of the following assets and entities;
(a)       F Pty Ltd;
(b)       J Pty Ltd;
(c)       K Pty Ltd;
(d)       Shares in L Pty Ltd;
(e)       Shares in M Pty Ltd;
(f)        Vail Unit Trust;
(g)       Vail Superannuation;
(h)       Shares in N Pty Ltd;
(i)        Shares in O Pty Ltd;
(j)        Shares in P Pty Ltd; and
(k)Any maritime vessels and associated property owned by the husband and operated under the name of ‘U Company’.
(collectively known as the ‘Vail Group’)
The husband be and is restrained by injunction from drawing upon the income and/or resources within the Vail Group for his personal use other than to pay:
(a)$10,000 per month to the wife by way of spousal maintenance;
(b)the mortgages on the properties at:
(i)B Street C Town NSW;
(ii)1 D Street City E NSW; and
(iii)2 D Street City E NSW.
("the properties"); and
(c)the council rates, water rates and land tax related to the properties.
The husband be and is hereby restrained by injunction from:
(a)Doing any act or thing that may cause the assets or income of the Vail Group…

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 Vail and Vail (No 3)

Details

AGLC: Vail and Vail (No 3) [2021] FamCA 59
Case: [2021] FamCA 59
Decision Date: 18 February 2021

CaseChat Overview and Summary

In the matter of *Vail and Vail (No 3)*, Altobelli J of the Family Court of Australia considered a range of interim applications made by the applicant wife against the respondent husband in ongoing family law proceedings. The applications sought various orders including the appointment of an independent accountant and a receiver, payment of spousal maintenance, reappointment of the wife as a company director, interim property distribution, access to joint bank accounts, appointment of a single joint expert for property valuation, restrictions on further investments, and limitations on drawings from joint assets.

The court was required to determine whether the proposed interim orders could coexist with existing orders made by Henderson J, and if amendments were necessary to facilitate their coexistence. The central legal issues revolved around the management and preservation of the parties' commercial entities and assets, the disclosure of financial information, and the imposition of injunctive relief to protect the wife's interests pending final determination of property matters.

Altobelli J reasoned that some of the existing orders made by Henderson J would need to be discharged to allow the newly made orders to coexist. The court ultimately dismissed most of the wife's interim applications, but granted certain injunctive relief. The matter was referred back to a registrar for future case management, particularly concerning valuation and outstanding disclosure issues.

Orders

Orders of the court

71.

The remaining issue for present purposes is whether the orders proposed can coexist with the existing orders made by Henderson J, or whether there needs to be appropriate amendments to those orders to enable them to coexist. Some of the orders made on 9 September 2020 will be discharged so that the orders made herein can coexist with them.

72.

This matter should be referred back to a registrar for future case management, particularly as regards valuation and any remaining disclosure issues.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Altobelli delivered on

18 February 2021.

Associate:

Date: 18 February 2021

Schedule A

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

File No (P)SYC5604/2020

BETWEEN

Finn Roache Lawyers

SYDNEY NSW 2000

Ms Vail

(Applicant)

AND

Mr Vail

JJ Street

Suburb S NSW

Mr Vail

(Respondent)

ORDER

9 September 2020

Amended 17 September 2020

PREPARED IN THE REGISTRY

17 September 2020

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY File No. (P)SYC5604/2020

BETWEEN

Ms Vail (Applicant)

AND

Mr Vail (Respondent)

9 September 2020

Before The Honourable Justice HENDERSON

UPON APPLICATION made to the Court AND UPON HEARING «FCA_LD221»Mr Campton SC of Counsel for the Applicant and the Respondent in person.

IT IS ORDERED THAT:

25.

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.

26.

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

27.

The husband pay the wife $10,000 per month by way of spousal maintenance.

28.

The husband pay the school fees of X and Y (“the children”).

29.

The husband pay the mortgages on the properties at:

(a) B Street C Town NSW;

(b) 1 D Street City E NSW; and

30.

The parties will not further encumber or increase any indebtedness that the properties identified in Order 5 are subject to.

31.

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.

32.

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.

33.

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;

(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 Ltd.

34.

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 L Pty Ltd, 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;

(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 Lone Pine Pub 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

(a) 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 2500 (having Folio Identifier …); and

iii) 2 D Street City E New South Wales 2500 (having Folio Identifier …).

It is further ordered pending further order that

35.

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.

36.

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.

37.

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.

38.

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.

39.

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;

(d) The remaining balance of the account.

40.

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 HH Bank credit card balances to nil.

41.

The husband is to comply with order 16 within 48 hours of these orders being issued, unless both parties agree in writing otherwise.

42.

Upon the husband complying with order 16 herein the parties are injuncted and restrained from using the Westpac credit card and the HH Bank credit card and for any existing direct debit payments after 26 September 2020 unless by agreement in writing.

43.

The husband is permitted to maintain the direct debits on the Westpac and HH Bank 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.

44.

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.

45.

These orders have been amended pursuant to paragraph 17.02(1)(e) of the Family Law Rules 2004.

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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