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 to be disbursed, sold, transferred, signed, or further 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 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;
(e)Using any loan and/or credit facility in the name of the Vail Group for the husband’s personal benefit, other than as permitted by these orders;
without first giving the wife not less than 28 days’ notice in writing of his intention to do so, together with appropriate details and supporting documents relating to such transactions, and further on the basis that any consent of the wife is given in writing.
The parties will not further encumber or increase any indebtedness to the properties without the consent of the other party in writing.
By no later than 11 March 2021, the husband do all acts and things necessary to prepare and file the financial statements and taxation returns for the financial year ended 30 June 2020 in relation to the following entities:
(a)       F Pty Ltd;
(b)       J Pty Ltd;
(c)       K Pty Ltd;
(d)       L Pty Ltd;
(e)       N Pty Ltd;
(f)        M Pty Ltd;
(g)       Vail Unit Trust;
(h)       Vail Superannuation
On completion of the documents referred to in order 6 herein, the husband is to forthwith provide copies to the wife, and to provide ongoing disclosure as the tax returns are submitted and assessments are received.
In the event that the husband fails to complete the financial statements and taxation returns pursuant to order 6 herein, the parties do all things and sign all documents, including the husband and wife in their personal capacity as director and shareholder of the Vail Group, to appoint Mr Z of BB Accountants to prepare and file the financial statements and taxation returns for the abovementioned entities, for the financial year ended 30 June 2020.
The payment of the fees of Mr Z be paid as and when they are due and payable from the income and/or capital of the Vail Group entities.
Within seven days of the date of this order, the husband pay all arrears of spousal maintenance to the date of this order, such payments to be made from his personal income and not from the income or assets of the Vail Group.
Within seven days of the date of this order and pending further order, the husband do all acts and things and sign all documents necessary so as to authorise and facilitate the wife being appointed as a fully authorised co-signatory for the accounts listed in order 2 of the orders made on 16 October 2020 in addition to the following accounts, including notifying, co-operating and doing all things required from the bank/financial institution necessary to give effect to these orders:
(a)M Pty Ltd BSB … …77: Commonwealth Bank of Australia (‘CBA’);
(b)N Pty Ltd BSB … …95: CBA;
(c)F Pty Ltd as trustee for Vail Superannuation Account #…72: AA Bank Account;
(d)CC Credit Card (details unknown) contained in the bank statements of J Pty Ltd; and
(e)All other accounts in the name of Mr Vail, or the entities in the Vail Group except for accounts relating to G Pty Ltd.
And the wife is hereby restrained from operating any of the said accounts in any manner except for the purpose of being able to view the said accounts online and to request and receive printed or electronic statements, without the husband’s written consent or an order of the Court.
The husband is restrained from using the resources and/or income of the Vail Group to trade, hedge and/or invest in the stock market or other derivatives without the prior written consent of the wife.
The parties do all acts and things and sign all documents necessary to unfreeze the F Pty Ltd Bank Account, with account ending …15 ("the F Pty Ltd Account") to the extent that is necessary to give effect to the partial discharge of the orders made 9 September 2020, and for the purpose of compliance with this order the husband be permitted to serve a copy of these orders upon CBA.
The husband be permitted to withdraw the sum of $100,000 from the income and assets of the Vail Group, such payment to be characterised by the trial judge at the final hearing.
The husband shall be entitled to receive any of the rental income generated in respect of the leasing of the parties’ real properties provided such income is applied in meeting the husband's obligations pursuant to order 3(b) and 3(c).
The husband pay any and all school fees in respect of the children's attendance at DD School as and when they fall due, such payments to be made from his personal income and not from the income or assets of the Vail Group.
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:
(a)meeting the ordinary business expenses of the Vail Group from time to time; and/or
(b)complying with these orders.
The husband be permitted to pay from the F Pty Ltd Account expenses related to the ordinary course of business and/or family expenses including but not limited to:
(a)       motor vehicle leases expenses, and all costs associated with the maintenance of the motor vehicles owned by F Pty Ltd;
(b)       insurance expenses;
(c)       private health insurance;
(d)       mobile phone, computer and internet expenses; and/or
(e)       to otherwise facilitate the husband's compliance with these orders.
The parties do all acts, things and sign all documents requirement to give effect to the orders contained herein.
In the event that either party refuses or neglects to execute any deed or instrument, a Registrar of this Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth), to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
The parties be granted leave to jointly approach the Court to have consent orders made with respect to the appointment of a forensic accountant and a valuer of the parties’ real property.
The parties be granted leave to have the matter relisted before the Docket Registrar on seven days’ notice should there be any disagreement with respect to the matters referred to in order 21 above.
The matter be referred back to the Docket Registrar for further case management.
All extant interim applications be otherwise dismissed.

IT IS NOTED THAT

A.‘Family expenses’ as expressed by the terms of order 18 above is taken to mean expenses that serve the benefit of the family unit and/or children, and do not serve to benefit the husband solely and personally.
B.CBA are requested to unfreeze account ending 9515 and reinstate the husband's ability to transact upon that account.

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 WOLLONGONG

FILE NUMBER: SYC5604/2020

Mr Vail

Applicant

And

Ms Vail

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment explain the further interim orders made in this matter.

Background

On 9 September 2020 Henderson J made interim orders on an urgent basis following a hearing on 20 August 2020. On that day the wife was represented by Mr Campton SC and the respondent husband appeared in person. The orders are reproduced in full in the first schedule to these reasons. Orders 3-10 inclusive were made by consent. Orders 11-20 were made by the Court. It is clear both from the terms, and the context of the making of the orders, that they were interim orders pending the filing of evidence by the Respondent husband. Henderson J provided written reasons for judgment on 9 September 2020.
For present purposes, both parties ask the Court to vary the orders made on 9 September 2020. The orders proposed by the husband are found attached to his Case Outline document filed 14 December 2020. The orders proposed by the wife are found in her Response to an Application in a Case filed on 26 November 2020. During the course of submissions, Senior Counsel for both parties proposed further variations to these proposed orders.
Other matters of background are contained in the reasons for judgment of Henderson J and do not need to be repeated and, largely, do not inform the present decision.

Overview

Both parties caused voluminous evidence to be put before the Court. It is important to appreciate that this is an interim hearing and thus the Court is unable to make findings. The Court is, however, able to form impressions from the totality of the evidence that is before the Court, as well as the way in which the cases were presented to the Court. Based on the above, the following strong impressions can be formed:
(1)Since the date of separation the trust that existed between the husband and wife has gradually, but perceptibly, diminished. Shortly before the commencement of the present proceedings, both the husband and the wife did things, and said things, that largely contributed to the commencement of the proceedings. From that time onwards, there is little, if any, trust between the parties. That is notwithstanding the fact that almost four years have elapsed between the date that they separated, albeit under the same roof, and the date that the wife commenced the present proceedings. The parties managed to successfully live their lives, both personal and commercial, for several years after separation and before the initiation of this litigation.
(2)The parties are successful businesspeople. The impression formed is that they are both intelligent, articulate, and highly capable businesspeople in their own right. Their property and business acquisitions, transactions and dealings have, for the most part, been successful. Most of their wealth is comprised in what will be described, for present purposes as “the Vail Group”, but there is also real estate as well as a small fleet of maritime vessels in the husband’s sole name. Precise values are not available and will, hopefully, be the focus of the next stage of these proceedings. 2020 was a very difficult year for the parties and the Vail Group. A substantial part of the Vail Group’s income is derived from the service industry, which was adversely affected, first by bushfires early in 2020, and then by the COVID-19 pandemic.
(3)There is material before the Court, from both the husband and the wife, suggesting that their business and property interests generated an income for the benefit of their family of over $1 million per annum. The strong impression formed is that the business and property income provided the livelihood for the parties, and enabled them to enjoy a very comfortable lifestyle. The parties seem to have a common interest in the preservation and orderly division and distribution of the totality of their assets.
(4)As this current round of litigation demonstrates, however, they have very different views about how to achieve this. The different views are, one suspects, largely attributable to the mistrust that exists between them. The wife’s main interest in the present litigation is to preserve the jointly owned assets and to ensure that the Vail Group businesses are administered profitably, but transparently and accountably. The wife doubts the capacity of the husband to do so, but there is an implied, if not express, acknowledgement on her part that the husband has been largely responsible for the conduct of the Vail Group businesses, and the management of their assets, for a substantial part of their relationship, and subsequent to separation.
(5)A regrettable impression created from the totality of the material before the Court is that since at least shortly before the commencement of the present proceedings, but possibly for a substantial part of 2020, the husband has conducted the Vail Group businesses, and managed the parties’ assets as if they were his own, and with little if any consultation with the wife. During the difficult trading conditions in 2020, it is common ground between the parties that the husband engaged in a process that he described as “hedging”, but which the wife describes as “gambling”. The losses to the Vail Group and to the parties attributable to this is between $400,000 - $500,000.
The Court emphasises that these are mere impressions, albeit strong impressions, formed from the totality of the material before the Court. It is possible that at a final hearing, and as a result of cross-examination, these preliminary impressions will be found wanting. That is the very nature of decision-making at an interim hearing. A decision must be made, but on the basis of incomplete, conflicting, and untested material. Nonetheless, these preliminary impressions largely provide background for that which follows in these reasons for judgment.

The issues

The orders proposed by both parties generate, at least, the following issues:
(1)Should an independent accountant be appointed to prepare financial statements and tax returns for the Vail Group?
(2)What definition of the Vail Group should be adopted for the purposes of the orders proposed by each party?
(3)Should a manager/receiver be appointed in relation to the businesses conducted by the Vail Group?
(4)Should further spousal maintenance be paid to the wife, and if so in what amount, and from what source?
(5)Should the wife be reappointed as director of F Pty Limited, one of the Vail Group companies?
(6)In what form should the injunctions made on 19 September 2020 be continued?
(7)What order is to be made in relation to interim property/costs for the benefit of both parties?
(8)In what manner should the wife be given access to the bank accounts of the various entities within the Vail Group?
(9)Should a single joint expert be appointed to value the parties’ real estate, motor vessels, and the Vail Group?
(10)What is the form of the injunction restraining the husband from further online trading activities?
(11)What restrictions should be imposed on further investment in G Pty Ltd
(12)Should the property owned by the parties at C Town be leased out and, if so, how should the rental be applied?
(13)What drawings should be permitted from the Vail Group?
There is a further issue between the parties in relation to a Contempt Application filed by the wife. The husband has asked the Court to strike out the application. The parties have provided written submissions. The Court considers that the strikeout application does not have the same urgency as the present application. Accordingly, separate reasons for judgment will be delivered on that issue, in the near future.

AGREEMENTS

The parties seemed to agree on the following matters:
a)That any maintenance paid to the wife shall be paid from the income and/or capital of the Vail Group;
b)That the income and/or capital of the Vail Group be used to pay all mortgages and outgoings in respect of the parties’ real property; and
c)A range of injunctions the effect of which is to prevent the income and/or assets of the Vail Group being used otherwise than in the ordinary course of business, or as permitted by these orders.
Where there remains issues between the parties as to the form of the orders to reflect these agreements, these issues will be identified and discussed below. If the Court has misunderstood what it believes to be agreements between the parties, the Court would nonetheless make the orders that it has made.

The evidence

In the husband’s case, he relied on the following documents:
a)His Affidavit filed 9 December 2020;
b)Amended Application in a Case filed 4 November 2020;
c)His Affidavit filed 4 November 2020;
d)His Affidavit in support of the Amended Application in a Case filed 14 October 2020;
e)A Tender Bundle entitled ‘V1’;
f)A Case Outline filed 14 December 2020; and
g)A Case Outline filed 30 November 2020.

In the wife’s case, she relied on the following documents:
a)Her Affidavit filed 16 August 2020;
b)A Financial Statement filed 16 August 2020;
c)Her Affidavit filed 18 November 2020;
d)Response to Application in a Case filed 26 November 2020;
e)Amended Initiating Application filed 29 November 2020;
f)Her Affidavit filed 14 December 2020 and corresponding exhibit bundle;
g)Affidavit of Mr FF filed 14 December 2020 and corresponding exhibit bundle;
h)Her Affidavit filed 26 November 2020; and
i)A Case Outline document not filed on the Commonwealth Courts Portal but provided to Chambers by email on 15 December 2020.
The following material was tendered as evidence during the course of the proceedings:
a)Exhibit A1; ATO Business Portal – N Pty Ltd dated from 1 December 2017 to 30 November 2020;
b)Exhibit A2; Email to Finn Roache Lawyers dated 15 December 2020;
c)Exhibit A3; ATO Notice of Assessment for the year ending 30 June 2019 to Mr Vail;
d)Exhibit A4; Bundle of receipts relating to correspondence from Barkus Doolan and dated 15 December 2020
e)Exhibit E1; Undertaking and subsequent amended undertaking to the Court of Ms Vail;
f)Exhibit R1; [1] Chain of emails with the subject line ‘urgent’; and
[1] The Court notes that this exhibit was incorrectly marked as exhibit R2 during the hearing and thus it has been remarked by the Court as exhibit R1.
g)Wife’s notice to produce issued to the husband and marked as MFI-1.

The applicable law

Where relevant, the applicable law, including cases, will be identified in the context of the discussion of the issues identified above. In short, neither party contended that the Court lacked the jurisdiction or power to make the orders proposed in relation to the issues identified.

Should an independent accountant be appointed to prepare financial statements and tax returns for the Vail Group?

Order 3 in the wife’s Response to An Application in a Case filed

26 November 2020 (‘the Response’) proposes that the parties appoint Mr Z of BB Accountants to prepare and file the financial statements and taxation returns for the financial year ending 30 June 2020, for the entities that she identified in that order. The husband opposes this. He contends that firstly, in the past he has prepared all of these documents himself, with no complaint from the wife. Secondly, he asserts that the task is almost 80 per cent completed and thus he should be allowed to complete the task. He contends this is an unnecessary order which will simply put the parties to further expense.
In the voluminous material filed in the wife’s case, the Court could discern no complaint about the financial statements and tax returns prepared by the husband in the past, including since the date of separation. The wife’s concern, apart from an apparent lack of trust, is the seeming delay in the preparation of these financial documents and taxation returns. That is an understandable concern given that these documents are necessary before the forensic task of valuing the parties’ assets can be undertaken.
Order 3, and the consequential order 4, as sought by the wife in the Response will be made. However, the operation of the order will be suspended until 11 March 2021[2] to give the husband the opportunity he sought to complete this task. On completion, the husband is to forthwith provide copies of the relevant documents to the wife, and to provide ongoing disclosure as the tax returns are submitted and assessments are received.
[2] The Husband in fact proposed an earlier date, but there was an unfortunate delay in providing these reasons hence the additional time permitted.
The Court notes that there may well be forensic and other issues that arise in relation to financial statements and tax returns as part of the valuation process. That should not prevent, however, the husband preparing the financial statements and tax returns as he has done in the past. There will need to be a consequential order, however, that the husband, by no later than 11 March 2021, do all things to prepare and file the financial statements and taxation returns in relation to the entities identified at order 3 of the wife’s proposed order.

What definition of the Vail Group should be adopted for the purposes of the orders proposed by each party?

In the husband’s consolidated minute of order attached to his Case Outline document filed 14 December 2020 he defines “the Vail Group” as follows:
A) the Vail Group" means
a. F Pty Ltd
b. J Pty Ltd;
c. K Pty Ltd;
d. The Husband's 51% sharereholding in ;
e. Vail Superannuation;
f. Vail Unit Trust;
g. Shares in M Pty Ltd
h. Shares in N Pty Ltd
i. Shares in O Pty Ltd; and
j. Shares in P Pty Ltd ).
(Collectively known as the “Vail Group”).
The definition of “Vail Group” in the wife’s Response to an Application in a Case is found at order 2:
That for the purposes of these Orders, the Vail Group consists of the following assets;
f)F Pty Ltd.
g)J Pty Ltd.
h)K Pty Ltd.
i)Shares in L Pty Ltd
j)Shares in M Pty Ltd.
k)Shares in G Pty Ltd.
l)Vail Unit Trust;
m)Vail Superannuation;
n)Shares in M Pty Ltd;
o)Shares in N Pty Ltd;
p)Shares in O Pty Ltd;
q)Shares in P Pty Ltd.
(collectively known as the Vail Group)
The Court observes as follows. The material before the Court suggests that the small fleet of maritime vessels used by some of the Vail Group companies are owned by the husband personally, though he trades as ‘U Company’. Given that the injunctions and other orders proposed need to incorporate these potentially valuable assets, it may be convenient to include the vessels identified by the husband in his affidavit as assets within the definition of the Vail Group.
Otherwise, the sole difference between the proposed definitions focuses on the Shares in G Pty Ltd. The husband contends that the Shares in G Pty Ltd are actually held through F Pty Ltd and the Vail Unit Trust, and thus do not need to be separately identified.
The definition of the Vail Group contained in the husband’s minutes of order will be adopted, with the addition of reference to U Company.

Should a manager/receiver be appointed in relation to the businesses conducted by the Vail Group?

At orders 5-7 of the wife’s Response she seeks an order pursuant to the Corporations Act 2001 (Cth) that Mr FF of EE Consultants be appointed as receiver and manager of the businesses in the Vail Group. The purpose of the appointment would be to manage the accounts and finances, oversee the business and provide reports to the parties and to the Court. The husband opposes this order, asserting there is no basis for it to be made, particularly in the context of the agreed orders.
The background to the wife’s request is her lack of trust in the husband’s ability to manage their businesses in their joint interests. She is particularly focused on the substantial losses incurred during the course of 2020 as a result of what the husband described as “hedging”, but what the wife described as “gambling”. From the Court’s perspective, the wife’s mistrust of the husband is understandable. The impression of the Court has already been articulated, and that is that the husband has conducted the Vail Group businesses, and managed their assets, without the wife, as if they were his own assets. He would contend, understandably, that he has only acted in the best interest of the business and of the parties.
At an interim hearing, it is not possible to determine whether what the husband described as his “hedging” strategy was reasonable and thus, it would be unfair to in effect punish him on an interim basis, by taking a drastic step such as effectively removing him from management of the Vail Group businesses. The Court is prepared to accept, as a reasonable but tentative proposition, that the 2020 bushfires and the COVID-19 pandemic have had an impact on the service industry, which is the lifeblood of the Vail Group businesses. It is thus yet to be determined whether the husband acted capriciously, or unreasonably, in what he described as “the hedging strategy”. The Court notes that what appeared to be the relatively non-contentious agreed injunctions are, subject to compliance, adequately protective of the wife, in terms of the preservation of the business assets. Accordingly, this Court’s view is that the order sought by the wife is unnecessary, and is disproportionate to the risk that she seeks to manage by the making of the order, given the other orders already in place and proposed to be made. Thus, the making of the order is not “necessary to make to do justice”, for the purpose of section 80(1)(k) of the Family Law Act1975 (Cth) (‘the Act’): See e.g. Malloy and Anor & Stopford Malloy [2017] FamCAFC 205.
In any event, the Court would not have appointed the manager/receiver as proposed by the wife. There is insufficient evidence about the actual ongoing cost of the appointment of Mr FF for the Court to be satisfied as to his appointment. There is evidence about hourly rates, but that does not inform the Court about what, for example, is the typical cost of the appointment of a receiver and manager of the Vail Group businesses. How can the Court assess proportionality in these circumstances? How can the Court be satisfied, for example, that the total cost of the receivership will not be more than the agreed losses as the result of what the husband described as his “hedging” strategy? Moreover, it is unclear from the evidence whether it is suggested that Mr FF has particular expertise in the service industry. The evidence, including the affidavit of the proposed receiver Mr FF, is silent as to whether Mr FF has particular expertise with the service industry.
Furthermore, the Court is concerned about the impact of the appointment of a receiver and manager to the businesses on the secured creditors of the Vail Group. It is not apparent if either party has considered whether the appointment of Mr FF would trigger an event of default in relation to the existing loan facility extended to, or for the benefit of, the Vail Group:

D Pty Ltd and Ors & Sadler and Ors
[2016] FamCAFC 187.

Should further spousal maintenance be paid to the wife, and if so in what amount, and from what source?

Spousal maintenance is governed by sections 72-75 of the Act. The existing orders provide for the husband to pay to the wife $10,000 per month by way of spousal maintenance. The amount has not been paid. In the Response, the wife, firstly, seeks an order that the husband comply with order 3 of the orders made on 9 September 2020, within 48 hours of such an order being made. Moreover, at order 9 she proposes that the order be varied so that the husband pay to the wife $20,000 monthly, until the receiver/manager is appointed. The husband proposes that he continue to pay the $10,000 per month by way of spousal maintenance, but that this be drawn from the income and/or resources within the Vail Group.
The Court declines to make the orders proposed by the wife for spousal maintenance in the sum of $20,000. The Court agrees, however, that the husband should be ordered to pay all arrears of spousal maintenance within seven days of the date of these orders but not on the basis that the husband be entitled to draw from the income and/or capital of the Vail Group businesses. This will be discussed below.
It seemed to be implicit common ground at the hearing that the husband would be able to draw on the income and/or capital of the Vail Group to pay a number of expenses including spousal maintenance of $10,000 per month to the wife, the mortgages on the parties’ properties at C Town and City E, as well as the Council water rates and land tax related to the properties.
The wife’s own documents do not support an order for $20,000 if the payments identified above are made. The expenses claimed by the wife in her financial statement do not withstand critical scrutiny. Her rental payments have decreased. She is not, in fact, paying rates, unit levies, or mortgage payments. As at 16 August 2020, she had $235,000 in the bank. Provided the husband pays maintenance of $10,000 per month, as well as the other expenses that he proposes to pay, the wife is not in need of further spousal maintenance. Given that the money will be drawn from their businesses, there is reasonable certainty that the payments will be made. Part of the rationale for the wife’s claim for $20,000 was that she would pay the school fees for the children. The husband has historically paid these fees. Senior counsel for the husband made it clear in submissions that he would do so in the future. Registrar Aitken noted in her orders of 3 February 2021 that the husband has paid the school fees. There is no reason to alter the arrangement.
There seemed to be some suggestion that the husband proposes that he also be paid an amount, the nature of which seems to be in effect spousal maintenance. The rationale for this is unclear. According to the husband’s financial statement of 6 October 2020 he earns $5,708 per week from his role as CEO and director of G Pty Ltd. The expenses claimed in his financial statement also do not survive critical scrutiny. For example, there is other evidence to suggest that historically he has not paid personal income tax for many years. He himself proposes orders that the mortgages be paid out of the Vail Group business incomes. Accordingly, prima facie, for as long as he continues to earn an income from G Pty Ltd, he is not in need of any spousal maintenance, howsoever characterised, to be paid from the Vail Group business income.
The Court notes, however, that order 3, as proposed by the husband in his outline of case, proposes that in the event that G Pty Ltd is placed into administration or he cannot draw an income from that company, that he thereby be permitted to pay himself from the income and/or resources of the Vail Group the sum of $15,500 per month to meet his day-to-day living expenses. The Court declines to make this order. Should G Pty Ltd be placed into administration, then the need for funds to meet his day-to-day living expenses should be assessed at that time, having regard to evidence at that time. There is no need, and there is no basis, for making order 3 at the present time.

Should the wife be reappointed as director of FPty Limited, one of the Vail Group companies?

At order 12 of the wife’s Response, she proposes that the husband do all things and sign all documents necessary to reinstate her as a director of F Pty Limited, and that he indemnify and keep her indemnified from any liability incurred prior to her reappointment.
The wife’s claim to be reinstated as a director is that she neither consented to, nor was aware of the fact that the husband had, in effect, caused her to cease to be a director of the said company. The husband opposes this. He agrees, however, that he completed the ASIC form to remove the wife as director. He contends, however, that this was pursuant to an agreement with the wife, and was in response to practical and logistical challenges associated with the wife living in Sydney, the business being on the south coast of New South Wales, and the husband spending considerable time there, whilst the wife remained based in Greater Sydney.
From the Court’s perspective, if there was an agreement between the husband and wife, either express or implied, that the wife relinquish her role as director of the said company, then the Court would be loath to reinstate her without fully understanding the agreement, and the circumstances in which it was entered. Accordingly, this is not a matter that the Court believes needs to be determined at an interim hearing, and the other orders proposed to be made are considered to be sufficiently protective of the wife’s interests.

What order is to be made in relation to interim property/costs for the benefit of both parties?

The law in relation to interim property distribution orders and interim costs orders is referred to in the cases cited below. At order 13 of the Response, the wife proposes that the funds currently held in the F Pty Ltd bank account with the Commonwealth Bank, approximately $161,000, be paid to her solicitor’s trust account on the basis that the payment is to be characterised by the trial judge, presumably at final hearing. At order 17 of his orders sought, the husband proposes that he be permitted to redraw from the F Pty Ltd account in the sum of $100,000, such sum to be categorised by way of partial property settlement.
The Court’s first observation in this regard is that the income and assets of the Vail Group will be depleted as a result of the orders proposed to be made, for the benefit of the husband and wife and their family, at a time when, according to the husband, business conditions have been difficult but are improving. The fact that he proposes orders to this effect, and that there is some agreement by the wife about this, suggests that they have confidence that the Vail Group income and assets will sustain the payments required to be made. It would be most satisfying, the Court observes, if the Vail Group income and assets were a magic pudding which, no matter how often it is eaten, always replenishes itself in order to be eaten again. In real life, of course, magic puddings are only found in the realm of comic fantasy, even if it is a classic of Australian children’s literature. Whilst it is true that, in the past, the parties’ businesses supported all of the payments that have been contemplated hitherto, trading conditions are still allegedly difficult, and funding two sets of lawyers’ fees may well be challenging. Accordingly, from this Court’s perspective, a cautious approach needs to be adopted.
The Full Court’s decision in Strahan & Strahan(interim property orders) [2009] FamCAFC 166 indicates that in making an interim property order the “overarching consideration” is the interests of justice: at [132]. The Court must be satisfied that in the circumstances it is appropriate to exercise the powers the Court undoubtedly has. There is no doubt that there are ample assets available for ultimate distribution such that the making of the advances proposed by each party is unproblematic. There is no doubt that any interim order to this effect is capable of variation or reversal. Nonetheless, restraint and caution needs to be exercised in making an interim order: Furtado & Furtado [2011] FamCA 1018.
The wife’s claim is, with respect, weak. She has $235,000 in bank accounts. She has not established the necessity for making the order. By contrast, the husband’s capacity to meet his legal fees is much weaker as a result of not having access to cash or resources. Bearing in mind that this is an interim property order only, it is just and equitable to allow the husband to draw $100,000 from the Vail Group income and assets. It is somewhat ironic, perhaps, that some of that money will need to be used to the pay the wife arrears of spousal maintenance.

In what manner should the wife be given access to the bank accounts of the various entities within the Vail Group?

At order 15 of the Response, the wife proposes an order that she be permitted full account access to the bank accounts listed in order 2 of the consent order made 16 October 2020, together with the additional accounts referred to in her proposed order. The husband opposes this, but tacitly accepts that the orders made 16 October 2020 for online access were impracticable and could not be implemented by the banks, and thus proposed an order that he provide to the wife on the fifth day of each calendar month a copy of the bank statement for the preceding calendar month, but limited in respect to the F Pty Ltd account.

From the wife’s perspective, it would appear that the basis of this order is transparency and accountability. Her case is, in effect, that since the litigation commenced she has been kept in the dark about the operation of the businesses.
The husband’s response is, with respect, glib. The effect of his order means that the wife has no real-time access to the business accounts. For example, she will not know what transactions went through an account on the first of the month until, on the husband’s proposal, the fifth day of the following calendar month, at the earliest. This is neither acceptable to the wife nor to the Court. The wife must be given the opportunity to scrutinise transactions on the various accounts in a timely fashion.
The Court has some reservations about the wording of the order proposed by the wife. The order in question uses the word “full account access”. The intention is that she view, but not control or access the accounts. The parties already encountered difficulty with the order made on 16 October 2020 about online access. One wonders whether, if the order were made as the wife currently proposes, the outcome would be any different from the bank’s perspective? The question may be asked, rhetorically, when the bank receives an order that says that the wife is to receive “full account access” how are they to implement this? From the Court’s perspective, a more effective way of implementing the intention that the wife has full viewing access to all the relevant bank accounts is to require the husband to add her as an authorised person and signatory to the accounts, but then to restrain the wife from doing anything other than merely viewing account statements without the husband’s agreement, or by an order of this Court. If this were effectuated, it would mean that the wife’s access to the accounts in question would be identical to that of the husband, save that she would be restrained by Court order from doing anything other than accessing the accounts for viewing purposes. This is an order that the Court considers to be within the parameters of the competing orders sought by the parties. The Court will make an order to this effect.

Should a single joint expert be appointed to value the parties’ real estate, motor vessels, and the Vail Group?

The husband’s affidavit evidence indicates that there is broad agreement about the appointment of a forensic accountant and a valuer of real estate. There should be no need for the Court to further intervene on this issue other than to grant leave to file consent orders with the Court to be considered by the Docket Registrar in chambers once the details have been agreed. The parties will have leave to have the matter relisted before the Docket Registrar on seven days’ notice should there be any insuperable difficulty in this regard.

What is the form of the injunction restraining the husband from further online trading activities?

At order 14 the husband proposes that he be restrained from using the resources and/or income of the Vail Group to trade, hedge and/or invest in the stock market or other derivatives without the written consent of the wife. This order is in similar terms to one proposed by the wife, and, accordingly, will be made.

What restrictions should be imposed on further investment in G Pty Ltd?

The wife strenuously opposes any further use of Vail Group income or assets to invest in G Pty Ltd. Lest there be any uncertainty about the meaning of “invest”, the wife’s position is that no funds should be provided, howsoever characterised.
By contrast, the husband seeks an order that he be permitted to redraw from the F Pty Ltd account the sum of $200,000 for the purposes of advancing those funds to G Pty Ltd, but on the basis that within 14 days of G Pty Ltd receiving any research and development grant, the husband do all things to repay the $200,000 plus interest to the F Pty Ltd account.
The evidence before the Court suggests that the parties have invested considerable funds in G Pty Ltd. The husband is confident about the future of the business conducted by G Pty Ltd, whereas the wife is pessimistic. They are fundamentally at odds. In substance, the husband and the wife are minority shareholders in G Pty Ltd, and the husband is the CEO. He contends that further investment is needed on an urgent basis. The husband has not satisfactorily explained why these allegedly urgent funds need to be injected by the wife and himself, as opposed to other shareholder investors in G Pty Ltd.
The Court is placed in an impossible position on this issue. It is not the Court’s role, on an interim basis, to adjudicate on the merits of further investment in G Pty Ltd. That is a matter for the parties. The wife gives a history of advances made by her to G Pty Ltd, through and at the request of the husband, that were never repaid. She complains of the husband’s arbitrary conduct in re-characterising the loan advance. Her mistrust of the husband is understandable, as is her opposition to further investment in G Pty Ltd. Whether or not the wife’s opposition is financially astute is not a matter for the Court to even speculate on. This is not a matter that cannot be determined on an interim basis. The orders proposed by the husband cannot be made, in the absence of the wife’s consent. If the wife consents, there is no need for an order.

Should the property owned by the parties at C Town be leased out and, if so, how should the rental be applied?

The wife, in her application filed 17 August 2020, at order 4 of the interim orders sought, seeks an order for exclusive occupancy of the parties’ property at C Town, so that it can be leased out. The husband opposes this on the basis that he uses the property when he is in the area for the purposes of managing the Vail Group businesses.
The impression created is that the property in C Town is subject to a mortgage and the orders proposed by the husband would mean that the mortgage is paid out of the income and/or resources of the Vail Group. The order the wife proposes is that she be entitled to receive the rent in full. Whilst the order proposed by the wife is described as an order under section 114 of the Act, and it certainly is insofar as it relates to exclusive occupancy, the payment of the rental income to her is not specifically characterised in the order. The most likely characterisation, from the Court’s perspective, is that it is spousal maintenance, but this is problematic because, as discussed above, the wife has not established her need for the same, having regard to the orders contemplated by the Court.
If the property is to be rented, in circumstances where the Vail Group companies pay the mortgage and outgoings, one would have thought the logical conclusion is that the rental income be treated as income of the Vail Group. These are matters for the parties to consider, however.
The Court must decide whether there is any need to make the injunction. The substance of the wife’s case is that the husband’s use of the property for business purposes is disproportionate to the value to the parties of renting it out, particularly in circumstances where the businesses have been adversely affected by very difficult trading conditions. She provides very vague and, with respect, unreliable information about what the property could be rented for, on an annual basis. The husband, conversely, states that he stays there with sufficient frequency for business purposes as to warrant the retention and occupancy by him of the property. He contends that there would be a cost to him of having to source alternative accommodation, subject to its availability, when he travels to the area for business purposes.
There is evidence that the wife and the children had the use of the property at various times, for seemingly extended periods, during 2020.
In these circumstances the Court declines to make the order proposed by the wife. She has not satisfactorily explained why, if the order were made, the rent would need to be paid to her. The proposal to rent out the property may well appear to the objective bystander to be a reasonable one, but there is no basis at law on the evidence before the Court for making the order she proposes.

Drawings on the Vail Group Income and Capital

A contentious issue between the parties was the restraints that would otherwise be imposed on drawing income from the Vail Group for their own use, other than for meeting existing mortgage payments and outgoings. Both parties agree that the income from the Vail Group could be used to pay the wife’s maintenance, mortgage payments and outgoings in relation to real estate. The wife proposed an order that no other drawings be permitted. In particular she proposed that the F Pty Ltd account …15 remain frozen, with neither party being able to access that account. In this regard, the material before the Court suggests that the bank interpreted the orders made by Henderson J as having the effect of freezing that account, even though it is questionable whether that was the intent of the orders. The relevant order is order 7, which was explicitly expressed to relate to payments otherwise than in the ordinary course of business. At order 17 the wife proposed a variation of order 13 made by Henderson J. That order restrained the husband by injunction from withdrawing more than $25,000 each seven days from the J Pty Ltd account without the written consent of the wife. The variation that the wife proposed at order 17 of the Response was a restraint on both parties from transferring, deducting, withdrawing (including direct debits), making any credit card payment, including transfer to the husband’s bank account for U Company, in the amount of $25,000 each seven days without the express written consent of the other party. The wife had expressed concern in her affidavit about Vail Group funds being applied to pay the husband’s personal credit card expenses, and this might explain the proposed extension to order 13 made 9 September 2020. The effect of this order would be that withdrawals from the main business operating account be limited to $25,000 each seven days.
The husband’s approach to this issue is to propose a range of injunctions that are reflected in orders 2, 4, 5, 6, 7, 8, 9, 11, 12, 13 of the orders proposed by him. The focus for present purposes will be on what limitations there are on the husband’s use of what will be broadly described as business funds for business purposes. The injunctions are otherwise broadly framed and appropriate, subject to specific issues discussed below
The Court has already adjudicated on the issue of any payment to G Pty Ltd so there is no need to reiterate why such restraint has been made, and will extend across the board. Order 7 proposed by the husband will not be made. The payments are a clear source of concern for the wife. The need for such payments has not been established to the satisfaction of the Court.
The critical order for present purposes is order 9 of the husband’s minute, the effect of which is that any injunction on him from withdrawing funds from the J Pty Ltd account without the written consent of the wife not apply when the payment was for the purpose of meeting expenses in the ordinary course of business expenses from time to time. He also acknowledged, of course, like the wife, that the injunction would not apply to payments for the purpose of complying with these orders. The obvious difference is that the husband is seeking to lift the $25,000 cap each week on expenses. The matters he sets out in his affidavit may be described in general terms as cash flow issues. There are some weeks where ordinary business expenses are more than $25,000, and others where they are less. Provided they are ordinary business expenses, in effect the husband contends that he should not need to consult with the wife. The Court notes that ordinary business expenses do not include the husband’s personal expenditure and he would do well to remember this.
The Court notes that the husband’s contention appears to be consistent with the lived experience of the husband and the wife until shortly before the commencement of proceedings. The Court also notes that the orders proposed to be made will give the wife much closer access to and scrutiny of the business accounts, and thus the opportunity to raise concerns as the need arises. The husband is in a better place than the wife to comment about cash flow issues of the business. Thus, given the level of transparency and accountability that these orders introduce for the benefit of the wife, the uncapped order enabling the meeting of ordinary business expenses is appropriate.
There are some caveats, however. At order 9(b) the husband refers to order 1(a), 1(b), 1(c), but presumably he means orders 2(a), (b) and (c) in his minute. All of these payments are agreed to by the wife except (b) with respect to school fees. For reasons discussed below, the Court will order the husband to pay the school fees himself, and not from the income/capital of the Vail Group. It should be recalled that he consented to paying school fees on 9 September 2020.
At order 11 of the husband’s proposal, he proposes an order to “unfreeze” the F Pty Ltd bank account. The Court acknowledges that this is a necessary consequence of the orders being made. It is impractical to do anything else.
At order 13, he proposes an order that clarifies that the F Pty Ltd account can be used to pay not just ordinary business expenses, but family expenses including motor vehicle lease expenses, insurance expenses, private health insurance, mobile phone, computer and internet expenses. The wife opposed this, but a reasonable inference to be drawn from the totality of the material before the Court is that this proposed order merely reflects the lived experience of this family, not just before separation, but for several years afterwards. The Court observes that order 13 as proposed by the husband benefits both the husband and wife, and possibly extends to benefit their children as well. Perhaps the wife’s concern is that the husband benefits from business income being used to meet his personal expenses, thus leaving him with a $300,000 a year salary from G Pty Ltd. Of course, precisely the same applies to the wife, and her personal income. Nonetheless, order 13 is broadly framed. The Court will make amendments to clarify that the family expenses mean expenses that benefit the husband, wife and/or children, but not the husband personally. Proposed order 13(e) will not be made due to its breadth and potential inconsistency with the other orders.

Other contentious issues

At order 26 of the Response, the wife proposes that an order be made pursuant to section 106A of the Act. This is appropriate and thus will be made.
Orders 20 and 22 of the husband’s minute propose that the wife be restrained from serving copies of any orders of this Court on third parties without the leave of the Court. The Court is not prepared to make this order. One can understand why, arguably, orders made would need to be served on the financial institutions providing finance to the parties and their business interests. As foreshadowed, from this Court’s perspective it is unlikely that the orders made on 9 September 2020 were intended by the parties, or the Court, to operate in the manner in which the Commonwealth Bank interpreted the orders, thus leading to the freezing of the account. There is no basis for making the order proposed by the husband.
At order 22 he also proposes an order restraining her from attending the offices of J Pty Ltd and/or communicating with their employees without the consent of the husband in writing. The Court declines to make this order on the basis that there is insufficient evidence to warrant such a restriction on the wife. That is not to say that there is no commercial wisdom in the wife not attending the business premises or communicating with employees, in circumstances where these orders provide her with access to business bank accounts, as well as the protection of various other injunctions.
The Court notes the proposed notation in the husband’s order about him continuing to meet the cost of the children’s private school fees at DD School, provided he is able to access and draw on the income and resources of the Vail Group. The Court declines to make this notation. In the husband’s financial statement filed 6 October 2020 he claims weekly payments of $2,307 at item 31 under the heading of ‘Maintenance Payments’, paid for the benefit of the wife and children. The difficulty for the husband is that the wife deposes to receiving nothing from the husband by way of maintenance and/or child support. If the husband intended to convey by item 31 of his financial statement that this was part of the $10,000 per calendar month paid to the wife, the fact is that under the new arrangements this will be paid through the Vail Group businesses. The Court has already observed that according to the husband’s financial statement he earns $5,708 per week. His own evidence is that he doesn’t pay the income tax as referred to in item 19. Under the new arrangement the mortgage payments at item 21 will be paid through the Vail Group, as will the mortgage payments at item 23. The rates and levies at item 24 will likewise be paid through the Vail Group, as will the expenses at item 27. The spousal maintenance payments at item 31 will be paid via the Vail Group. It would seem, therefore, based on the husband’s own evidence, that he has ample financial capacity to meet the children’s school fees from his own income rather than further drawing on the income and resources of the Vail Group.
The husband wants all arears of spousal maintenance to be discharged as at, in effect, the making of these orders. The wife wants all arrears to be forthwith paid by the husband, and not from the Vail Group. The Court will make an order consistent with that proposed by the wife. The husband has not satisfied the Court that he did not have the capacity to pay the maintenance at all relevant times. He consented to the order. As noted above, his financial statement claims expenses he was not incurring. The income stream to him via U Company is far from clear in terms of his disclosure.

Orders

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.
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:

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 and Y (“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 Ltd.
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;
(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 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

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 HH Bank 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 HH Bank 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 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.
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.