Villa & Villa
[2024] FedCFamC1F 741
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Villa & Villa [2024] FedCFamC1F 741
File number(s): BRC 9739 of 2024 Judgment of: BAUMANN J Date of judgment: 7 November 2024 Catchwords: FAMILY LAW – INTERLOCUTORY – INJUNCTIVE RELIEF – Major Complex Financial Proceedings List – Where the Applicant has not established primarily any real risk of unjustified disposition of Australian assets – Where the wife has not pointed to any evidence of funds leaving Australia – Where the difficulties in being able to enforce any Australian Court order against overseas assets is but one issue to be considered in the exercise of discretion – Where the scope of the Applicant’s orders sought have the potential of restraining the Respondent in a way that cannot be justified at this time – Application for injunctive relief dismissed Legislation: Family Law Act 1975 (Cth) s 114 Cases cited: Fundo Soberano de Angola v Dos Santos [2018] EWHC 2199 (Comm)
M & DB (2006) FLC 93-293
Palmer v Parbery & Ors; QNI Metals Pty Ltd & Ors v Parbery & Anor [2019] QCA 27
Patton & Patton [2015] FamCA 1083
Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264
Tsiang & Wu and Ors (2019) FLC 93-911
Waugh & Waugh (2000) FLC 93-052
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 9 October 2024 Place: Brisbane Counsel for the Applicant: Mr Craig KC assisted by Ms Renwick Counsel for the Respondent: Mr Sulan SC assisted by Mr May ORDERS
BRC 9739 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VILLA
Applicant
AND: MR VILLA
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS:
1.That the wife’s amended Application in a Proceeding filed 26 September 2024 seeking injunctive and ancillary relief at paragraphs 3, 4, 5 and 6 is dismissed.
2.That Order 3 made 17 September 2024 is discharged.
3.That the husband shall file and serve within twenty one (21) days, a Defence/Response to the wife’s Statement of Claim filed 8 October 2024.
4.That the relief sought at paragraph 2 of the wife’s amended Application in a Proceeding filed 26 September 2024 be adjourned for further determination before the Honourable Justice Hogan.
5.That the costs of and incidental to the hearing on 9 October 2024 be reserved to the trial.
6.That the substantive proceedings be listed for Hearing before Justice Hogan commencing 24 March 2025 for five (5) days in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
7.That the proceedings be adjourned for Case Management Hearing before Justice Hogan at 9.30am on 19 December 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Villa & Villa has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
The Applicant, Ms Villa (“the wife”) aged 38 years and the Respondent, Mr Villa (“the husband”) aged 66 years, began a relationship in 2010; married in 2011 and separated between May 2021 (the husband’s assertion) and August 2022 (the wife’s assertion).
Although for ease of reference I describe the parties as husband and wife, I am aware that their marriage ended with a divorce order made in Country B in late 2022.
The parties have two children of the relationship, X (11 years of age) and Y (nine years of age) who are the subject of parenting orders made by consent by a Country C Court.
The husband is a person who owns or controls significant assets and corporate interests, which in 2022 he estimated at a value of approximately AUD$1.5 billion – although he now claims that those interests (particularly overseas) have reduced in value as a result of international conflicts and imposed sanctions. The husband acknowledges he has interests in:
(a)Australia;
(b)Country D;
(c)Country E;
(d)Country B;
(e)Country F; and
(f)Country G,
although, as will be apparent, the focus of these interlocutory proceedings are the interests/assets in Australia, the other interests are a matter of relevance.
THE ISSUE FOR DETERMINATION
The primary issue for determination, and the focus of these Reasons, is the wife’s amended Application in a Proceeding filed 26 September 2024, seeking the orders which are reproduced and annexed to these Reasons as Appendix One. In essence, the wife seeks what her Counsel Mr Craig KC contends are “modest preservation orders against the husband’s Australian assets (as defined) to avoid the frustration of a potential property settlement order in favour of the wife”. The husband primarily seeks that the wife’s Application be dismissed. Although the wife also seeks other procedural and discovery orders, I indicated to Counsel, including of course Mr Sulan SC for the husband, that I felt it was more effective to leave those issues for determination by the trial judge.
As case management judge, I have allocated the substantive matter relating to the financial agreement for determination by the Honourable Justice Hogan, who will hear the matter over five days commencing 24 March 2025. This listing reflects the clear agreement of the parties, communicated at the interlocutory hearing, that the parties will be able to prepare and proceed to a trial of the substantive matter within that timeframe.
MATERIAL RELIED UPON
The wife relied upon the following documents identified in her case outline filed 3 October 2024:
(a)Initiating Application filed 18 July 2024;
(b)Affidavits of herself filed 18 July 2024 and 13 August 2024
(c)Amended Application in a Proceeding filed 26 September 2024;
(d)Affidavits of Ms H filed 13 August and 10 September 2024;
(e)Affidavit of Mr J filed 26 September 2024;
(f)Affidavit of Mr K filed 26 September 2024;
(g)Affidavit of Ms L filed 27 September 2024; and
(h)Affidavit of Mr M filed 27 September 2024.
I was assisted by submissions, both oral and written, by the wife’s Counsel Mr Craig KC assisted by Ms Renwick.
The husband relied upon the following documents identified in his case outline filed 3 October 2024:
(a)Response filed 10 September 2024;
(b)Response to Application in a Proceeding filed 27 September 2024;
(c)Affidavits of himself filed 10 and 27 September 2024; and
(d)Affidavit of Mr N filed by leave on 9 October 2024.
To provide context, I will now record some of the more critical clauses in the financial agreement dated 20 July 2022 (“the financial agreement”). In so doing, I do not ignore the wife’s detailed Statement of Claim (“SOC”) filed 8 October 2024, which I refer to later in these Reasons.
FINANCIAL AGREEMENT
A copy of the executed agreement is Annexure MSV-02 to the wife’s affidavit filed 18 July 2024. I identify the following clauses of particular relevance at this early stage of the proceedings:
(a)At Recitals O and P, the husband’s estimate of his nett worth at the commencement of the relationship and current time of $1.5 billion is given. The document records that it is “not practical nor economical to particularise [Mr Villa’s] wealth”;
(b)The wife acknowledged, at the date of the financial agreement, the husband had gifted her interests in various real property (particularised at Schedule B – value $6,672,720; and Schedule C – value of gift $5,000,000 in respect of a jointly owned property);
(c)The usual recitals about the intention of the parties to adopt the written terms to replace and override all preceding oral or written agreements (Recital X) and rights under s 79 of the Family Law Act 1975 (Cth) (“the Act”) (Recital EE);
(d)Clause 5.2 permits either party to sign a “separation declaration. It is not disputed the husband did so in early 2023 at the same time as he served the wife with his Application for Divorce, enlivening the jurisdiction of Country B;
(e)Clause 8.3 provides that the parties shall be the sole owners of their separate property (as defined) and will be able to dispose of or deal with it in any way they want;
(f)Under clause 9.1, within 30 days of separation, the husband was to transfer a property located at 1 O Street, Suburb P (“1 O Street”) to the wife unencumbered;
(g)At the date “the agreement comes into effect” under clause 9.2, if the property retained by the wife (as defined) has a value of less than USD$15 million, then the husband is to make a “balancing payment” to the wife. The payment so calculated was to be made “90 days from the date on which the parties have determined the value” of the wife’s separate property and joint property pursuant to clause 9.2 of the agreement (clause 9.6);
(h)the financial agreement makes provision for dealing with separate and joint property; determining fair market value; and arrangements for the sale of jointly owned property and distribution of sale proceeds;
(i)At clause 14, the parties agreed to accept part of the property interests retained as being attributable to spousal maintenance and in the wife’s case, amounted to capitalised spouse maintenance of $250,000 per annum for a period of four years – a total of $1 million. At clause 14.6, the parties expressed their intention that the financial agreement “will constitute a complete release of each other from any future claim for maintenance and is made in substitution of each party’s respective rights to make a claim for maintenance under the Act…”; and
(j)The parties acknowledged they had received advice that, in certain circumstances, the Court may make an order setting aside the financial agreement (clause 15.1).
As already noted, the wife’s substantive Application seeks to set aside the financial agreement or otherwise have the agreement rescinded, and on the basis that the financial agreement is set aside or rescinded, there be orders made for property settlement and spouse maintenance.
By way of summary, the wife’s SOC asserts, inter alia:
(a)the husband exercised financial control over the wife;
(b)the husband isolated the wife from her family and friends;
(c)the husband exerted coercive control over the wife;
(d)the wife suffered from alcohol addiction which the husband knew about;
(e)the husband made false marriage representations;
(f)the wife’s receipt of marriage representations in her state of mind, were material to the wife’s decision to enter into the financial agreement and induced her to do so;
(g)the husband engaged in unconscionable conduct and undue influence;
(h)the wife entered into the financial agreement under duress;
(i)the husband engaged in fraudulent misrepresentation; and
(j)the husband has breached the financial agreement as particularised by the wife by letter dated 4 July 2024, and the husband has evinced an intention to no longer perform the financial agreement, which makes the agreement voidable and also available for the wife to accept the husband’s repudiation.
The husband has not yet filed any defence or response to the SOC.
PRINCIPLES
The wife’s interlocutory Application enlivens the jurisdiction created by s 114 of the Act when the Court has a discretion to make such orders as the Court considers “proper” (s 114(1)) and under s 114(3) to do so “in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate”.
In this jurisdiction the Full Court decision in Tsiang & Wu and Ors (2019) FLC 93-911 and the principles enunciated at [20]–[27], which of course bind me, are oft quoted. Further an earlier useful discussion was undertaken by Kent J in Patton & Patton [2015] FamCA 1083, when his Honour said:
28. The following principles would seem to be well settled by authority:
a)The applicant has the onus of demonstrating two central requirements, namely:
i)That the applicant has an existing (or potential) claim to an order altering property interests under s 79 of the Act; and
ii)An objective risk or danger that the claim may be prejudiced unless an injunction is granted;
b)There is no “fundamental” or “threshold” question whether a scheme to defeat a judgment exists, to be answered in the affirmative on the balance of probabilities in every case before an order preserving property can be made. In an inquiry into the risk of disposal of assets, the question of an intention or scheme is but one of a number of factors relevant to the objective risk of disposition to defeat an order;
c)The Court is required to take into account the balance of hardship and the balance of convenience between the parties and in that context the Court will not usually restrain a party from ordinary business dealings unless there exists a substantial risk of dissipation of assets or some substantial reason justifying such a restriction;
d)Any injunction granted ought be limited to that which is in the reasonable protection of a legal or equitable right and it is not the function of an injunction to provide an applicant with security in advance of a judgment.
(Footnote omitted)
29.In Sieling & Sieling (supra) the Full Court observed:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction that is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim.
(Citation omitted)
As was developed during submissions, a critical factor in this analysis, in this case, is the determination of the existence of the risk and its magnitude, and in that respect the Full Court in Tsiang & Wu and Ors (supra) adopted the statement of principle of McMurdo JA (with whom Fraser and Gotterson JJA agreed) at [119] of Palmer v Parbery & Ors; QNI Metals Pty Ltd & Ors v Parbery & Anor [2019] QCA 27 that:
119.…involves the evaluation of, rather than the ascertainment of historical facts. The risk of dissipation might justify an order although the probability of the risk eventuating is less than 50 per cent. But, as the risk of dissipation must be a real and not merely a theoretical one, it must have an evidentiary basis.
…
A freezing order is interlocutory in nature; it does not involve a final determination of the parties’ positions. Usually it is made in circumstances of urgency in which the court is unable to conduct an extensive and conclusive factual inquiry in a way which is fair to both parties. Where the factual basis for the plaintiff’s case about the risk of dissipation is disputed, the risk will commonly have to be evaluated with the recognition that the factual basis for it is in doubt. Nevertheless, the possibility of the plaintiff’s evidence being correct, considered with other facts and circumstances, might mean that there is a sufficiently serious risk of the frustration of the satisfaction of a judgment as to justify the making of a freezing order. …
(Footnotes omitted)
I acknowledge senior Counsel for the parties also directed me to other authorities such as:
(a)M & DB (2006) FLC 93-293, particularly the Full Court’s discussion at [43] when discussing observations made in Waugh & Waugh (2000) FLC 93-052 about the care that needs to be taken “to ensure that sight is not lost of the essential differences which may exist between the proceedings in this Court to which it is being sought to apply those principles and the type of proceedings in other jurisdictions out of which those principles have sprung”; and
(b)Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 at [276] and Fundo Soberano de Angola v Dos Santos [2018] EWHC 2199 (Comm) relating to commercial “freezing orders”.
In my assessment, the pathway earlier identified in this jurisdiction does not materially differ but is the appropriate pathway for a single Judge in this Court to follow.
DOES THE WIFE HAVE AN EXISTING OR POTENTIAL CLAIM?
The wife asserts that the husband has failed to comply with the terms of the financial agreement. This could, had she chosen to do so, enliven the Court’s jurisdiction to enforce the terms of the agreement. Clearly the wife’s view is that she is entitled to property in excess of that provided for in the agreement and has not sought to enforce its terms.
Where the husband says that he has paid to the wife, and she concedes she has received, AUD$10,800,000 since early 2023, whilst this does not amount to the full “balancing payment” under the financial agreement, it must be seen as a substantial payment.
In addition, the wife also accepted payments that started at $30,000 each month which she described as “to meet mine and the children’s expenses”. In circumstances where no periodic spouse maintenance payment was payable to the wife under the financial agreement, these at times irregular payments might be better characterised as child support.
Unlike cases where s 79 claims are already on foot, or are to be pursued by a party to the marriage under s 79 or s 74 of the Act (without impediment), the wife’s potential claim has to overcome the hurdle that, if found binding, the financial agreement operates in substitution for the wife’s claims under s 79 and s 74. In that regard, Counsel for the wife confirmed during the exchanges with the Bench that whilst the husband (who asserts the financial agreement is binding) bears the onus of establishing the formal statutory requirements of its creation (for example independent legal advice etc), the wife does not assert any deficiency or non‑compliance in that regard.
The wife’s basis for asserting, on many different grounds, that the agreement should be set aside is contained within the current SOC, only filed some days before the interim hearing before me. In those circumstances, it is not fair to contend that the husband has not engaged with the wife’s case before clear particularisation was articulated. The husband indicated through his Senior Counsel that he would file a defence/response within 21 days – but that the Court should proceed on the basis that the husband will strenuously oppose the wife’s application to set aside the financial agreement.
The submissions made on behalf of the wife at paragraphs 36 and 37 of the written submissions conclude with a contention (if the wife can set aside the financial agreement and pursue a property settlement claim), that she would receive an award of between $225,000,000 and $450,000,000). This claim would exceed the husband’s estimate of the total available assets under the husband’s control in Australia – said to be around $174 million.
At this juncture on the untested evidence, it is not possible to assess the wife’s potential success in her setting aside application – but drawn as broadly as it is, I would not find the claim is fanciful or without merit. Once evidence is more developed, there is of course every possibility that a claim for summary dismissal may be made but no agitation in that regard is currently apparent.
It is of course well established that the terms of a financial agreement do not have to be “just and equitable” or offering similar relief to what may be achieved in property alteration proceedings. Parties are permitted to enter into agreements which provide more or less benefits than might otherwise be achieved.
If the husband’s nett assts still remain in the region of $1.5 billion (which the husband disputes), then clearly even a 20% distribution to the wife would mathematically exceed the Australian assets – and taking into account of course that the wife admits to having control of gross assets of approximately $11 million.
Such assertion in her financial statement however includes over $9,647,000 in Westpac Bank accounts – comprising it seems some of the funds the husband has paid to the wife. The wife retains a joint interest in the property at 2 O Street, Suburb P (“2 O Street”) that had an agreed value in 2022 of $10 million. The wife seems to have committed also to some form of building/development in Country Q (see item 53).
RISK OF DISSIPATION OF ASSETS
Before I consider the submissions on this issue, it is notable that the husband’s wealth is primarily held in overseas jurisdiction. To be fair, the wife’s conduct in seeking to engage in a commercial transaction overseas in Country Q, reflects to some degree her willingness to also invest overseas.
The focus on the assets and interests in Australia – if they represent $174 million in a pool controlled by the husband of $1.5 billion – is a little under 12% of his total worth. I accept the evidence from the expert witnesses relied upon by the wife from:
(a)Mr J (Country R jurisdiction);
(b)Mr K (Country C jurisdiction);
(c)Ms L (Country B jurisdiction); and
(d)Mr M (Country F jurisdiction).
They all essentially identify the difficulties enforcing orders in their specialist jurisdiction, made in this Court. I am prepared to infer similar difficulties and costs can be expected to be encountered in the other jurisdictions where the husband has interests, namely Country D, Country E and Country G. However, these difficulties are not new to the wife – but no doubt has caused her to focus on the Australian assets in her Application.
The wife asserts, in addition to the failure to strictly comply with his obligations under the financial agreement, that the husband’s conduct since at least separation evinces an intention by him of removing assets from Australia to defeat her likely claims – ultimately for property settlement.
Firstly, it is clear that the wife continued to accept payments from the husband before, on 20 March 2024 she gave notice of her intention to bring her claim – a claim not formally filed until 18 July 2024. Paragraph 48 of the wife’s affidavit reveals that $8,300,000 was paid to the wife before she gave notice of her intended claim with an additional $2,500,000 paid before formal proceedings were commenced.
The husband, in his affidavit filed 27 September 2024, deposes to the fact that:
(a)any sales of assets in Australia have been done in the ordinary course of business or for the purposes disclosed in that affidavit;
(b)where he has disposed of assets in Australia, the proceeds have been used to:
(i)reinvest in other businesses or assets in Australia including funding the husband’s continuing business operations; and
(ii)pay the wife the sum of $10,800,000 (to date).
(c)the wife has sold, as the financial agreement permitted, all of her properties in Australia which were her “separate property”, save for the jointly owned property at 2 O Street. It was conceded by both Counsel during the interim hearing that even if one party had listed the property for sale, any contract for sale requires the approval in writing of both parties;
(d)at paragraph 26, the husband gives a detailed explanation of the disposals of assets specifically identified in the affidavit of the wife. Furthermore, the affidavit of the husband’s solicitor, Mr N, gave further details about 1 S Street and 2 S Street, Town T; and the sale of U Street, Suburb V sold for $10 million in late 2024, with the proceeds said to have been directed to programs both of W Pty Ltd and DD Pty Ltd;
(e)he is involved as a majority shareholder (through EE Pty Ltd) in an operation in the City Z region called W Pty Ltd (“W Pty Ltd”) and he deposes to relationships and obligations relating to that endeavour (paragraphs 14 to 20);
(f)again through the husband’s entity EE Pty Ltd, a 100% interest in DD Pty Ltd was acquired in late 2023 for nearly $6 million. That entity has an authority to access natural resources.
The wife has not established at this stage that the husband has either an intention or a scheme to reduce the pool of interests in Australia. Whilst those interests may be different than those identified in the financial agreement, the wife has not pointed to any evidence of funds leaving Australia.
BALANCE OF CONVENIENCE
Whilst I accept the difficulties to be encountered in being able to enforce any Australian Court order against overseas assets, that is but one issue to be considered in the exercise of my discretion. As the authorities make clear, any injunction is only to reasonably protect a potential claim – not to provide security to that party.
The activities of the husband involve some activities in the primary industry, and as the husband points out at paragraph 29, also his property development activities in City AA, Suburb BB and Town T. His industrial permits “are cash intensive and require a steady availability of funding to maintain and develop those interests”.
As I discuss below, the scope of the wife’s orders have the potential in my assessment of restraining the husband in a way that cannot be justified at this time.
AFFECT ON THIRD PARTIES
The husband deposes to other (albeit minority shareholders) in W Pty Ltd being adversely affected if W Pty Ltd is unable to access funds to comply with its development obligations. The husband says his entities have invested $75 million to date into W Pty Ltd, with a further $10 million to $12 million being required in the next 12 to 18 months.
At paragraph 34 of his affidavit, the husband says:
While I have investments outside of Australia, where I can I refrain from using international funds or liquidating international assets to meet the operating costs of my Australian entities. This is to avoid the loss of capital through currency exchanges rates and tax in disposal of my international assets. In addition…a lot of my wealth is also in investments in [Country E] and [Country D]. It is not possible for me to access my wealth in [Country D] because of [restrictions] that are currently in place.
UNDERTAKING AS TO DAMAGES
The potential damages that could flow from the adverse effect of any injunctions as sought by the wife well beyond the current resources of the wife – such that any undertaking may not be sufficient, if offered.
DISCUSSION
The injunction sought by the wife seeks to limit the scope to only “Australian assets”, with those “Australian assets” defined widely, including future assets. The husband’s business activities are directed to improving the value of his “Australian assets” and increasing his wealth in this country.
Proposed order 2 would require the husband to file an affidavit providing details of the “Australian assets”, although since the filing of the Application in a Proceeding, the husband’s affidavit provides some details.
The proposed restraint by injunction would, on its terms, allow a disposal of an interest:
(a)at arms length;
(b)pursuant to written terms;
(c)for consideration comprising only legal tender; and
(d)for market value consideration,
with further restraints on encumbering.
Although the husband offered a more limited form of injunction “if your Honour is against me”, I have come to a conclusion that the wife has not established primarily any real risk of unjustified disposition of Australian assets or a process of seeking to diminish the value of assets in Australia. At this stage his clear intentions are to take advantage of increased real estate valuations and put those funds into both other property developments and primary industry ventures.
The costs of the required reporting and further discovery – not to mention the likely disruption to the husband’s continuing business activities associated with the proposed injunction, are on the evidence at this time not justified.
Again, it is appropriate to record that the wife must first overcome the impediment of having entered into a financial agreement; allowing it to be partially performed post separation to her benefit while at the same time causing substantial “separate property” under her control to be sold as the agreement permitted.
In the circumstances, and in the exercise of my discretion, I am not satisfied it is either proper, just or convenient to order any injunction. I will accordingly dismiss the wife’s Application at proposed orders 3 and 5 of her Application in Proceeding filed 26 September 2024.
The substantive matter will be listed for hearing before the Honourable Justice Hogan for five days commencing 24 March 2025.
In circumstances where the husband said he was able to file and serve a Defence/Response to the wife’s SOC within 21 days, the boundaries created by the pleadings will now permit a more focused discussion as to the required discovery, noting I had not formally ordered him to file a Defence/Response to the SOC, I do so now.
I believe it is appropriate for any order as to further discovery, including whether the husband should file a Financial Statement, be a matter better dealt with by the trial judge, Justice Hogan.
In these circumstances, I will formally vacate the order made in chambers on 17 September 2024 at Order 3, without input from the parties, for the husband to file a Financial Statement.
I accept, although less than desirable, that the wife is not prevented from filing further applications for injunctive relief if evidence differs from that able to be adduced before me at this stage.
The matter shall be listed for a Case Management Hearing before Hogan J at 9.30am on 19 December 2024.
I shall reserve the costs of the interlocutory proceedings before me, to the trial judge.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 7 November 2024
APPENDIX ONE
For the purpose of these orders, the words in bold have the following meaning:
‘Australian Asset’ means:a. any real property located in Australia;
b.any shares or options for shares in any company incorporated under the Corporations Act 2001:
c.any vehicle, vessel or aircraft wherever situated that is or was registered anywhere in Australia in the last 12 months;
d.any other personal property or chose in action having a value of, or acquired for, in excess of $100,000;
where the same is or has in the last 12 months been, or in the futures becomes:
e. owned in whole or in part, whether in law or in equity; or
f. Controlled by,
the respondent or any entity he Controls.
‘Net proceeds of sale’ means the proceeds of sale of an Australian Asset less any sale costs and finance.
‘Control’ has the meaning given in s.50AA of the Corporations Act 2001
‘Change of Control’ means any transfers, allotments, reorganisations or consolidations of shares in the capital of a company (or a holding company) which have the effect of altering the identity of the person or group of persons who held, directly or indirectly, more than half of the capital of that company (or a holding company) immediately prior to such transfer, allotment, reorganisation or consolidation.1. All times for service be abridged and this Application in a Proceeding be heard urgently.
1A.The applicant be given leave to adduce and rely on the reports from Mr J, Mr K, Mr M, Ms L and Mr CC filed herewith.
2. Within 14 days of these orders, the respondent file and serve an affidavit:
2.1listing all Australian Assets and their legal and beneficial owners;
2.2identifying which Australian Assets are the subject of any contract of sale, lease or charter (whether settlement has taken place or not) and annexing a copy thereof;
2.3identifying which Australian Assets are the subject of any trust, mortgage or charge, and identifying the nature and amount thereof and annexing a copy of any document evidencing such mortgage, trust or charge; and
2.4where any Australian Asset is movable and has not been disposed of, identifying the current location thereof.
3.Until further order, or agreement between the parties, the respondent be restrained by injunction personally and in his capacity as a director, trustee, agent, shareholder or otherwise from:
3.1disposing, or causing to be disposed, of any Australian Asset unless:
3.1.1at arm’s-length;
3.1.2pursuant to written terms;
3.1.3for consideration comprising only legal tender; and
3.1.4for market-value consideration,
3.2encumbering or causing to be encumbered, any Australian Asset except in respect of purchase monies provided at arm’s length at the time of purchase; or
3.3causing any entity owning or being entitled to the benefit of the Australian Asset to undergo a Change of Control.
4.Not less than 14 days before the date of settlement of any sale of any Australian Asset, the respondent provide written advice to the applicant’s lawyers of the intended sale, including:
4.1a copy of the contract of sale; or
4.2if there is no written contract of sale, a full description of the asset and sale price; and
4.3such reasonable additional particulars of the sale as may be requested by the applicant.
5.Until further order, or agreement between the parties, the Net proceeds of sale must be:
5.1held in a trust account by the respondent’s lawyer; or
5.2applied to the purchase an Australian Asset as described in paragraphs a or b of the definition thereof.
6.In respect of any purchase under subparagraph 5.2, the respondent must provide to the applicant’s lawyers the same particulars at the same time as in paragraph 4, mutatis mutandis.
7.Liberty to apply be reserved.
0
2
1