Villar & Villar (No 2)
[2025] FedCFamC1F 231
•8 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Villar & Villar (No 2) [2025] FedCFamC1F 231
File number: SYC 2931 of 2022 Judgment of: CAMPTON J Date of judgment: 8 April 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Partial property settlement – Injunctive orders – Where the wife seeks partial property settlement and the husband concedes to a partial property settlement, however puts the quantum sought by the wife into issue – Where the sum as sought by the wife ought to avoid further interlocutory applications for litigation funding, the substantive matter now being listed for trial – Where the husband and the other respondents agree to certain injunctive orders sought by the wife and oppose others, putting into issue the notice period sought and some of the subjects of notice – Where the balance of convenience favours the orders as to the provision of notice as sought by the wife – Orders made providing for the husband to pay interim property settlement by way of instalments and for restraints by way of injunctions to give notice. Legislation: Family Law Act 1975 (Cth) Pt VIII, s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, r 12.06
Cases cited: Bing and Bing (2007) FLC 93-318; [2007] FamCA 418
Marchant & Marchant (2012) FLC 93-520; [2012] FamCAFC 181
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166
Tsiang & Wu and Ors (2019) FLC 93-911; [2019] FamCAFC 128
Villar & Villar [2025] FedCFamC1F 228
Zschokke and Zschokke (1996) FLC 92-693; [1996] FamCA 79
Division: Division 1 First Instance Number of paragraphs: 51 Date of hearing: 7 April 2025 Place: Sydney Counsel for the Applicant: Mr Kearney SC with Mr Springthorpe Solicitor for the Applicant: Rubin Blight Hardy Family Lawyers & Mediators Counsel for the First Respondent: Mr Richardson SC with Mr Hollo Solicitor for the First Respondent: Barkus Doolan Winning Counsel for the Second to 19th, 24th, 25th, and 28th – 31st Respondents: Mr Williams KC Solicitor for the Second to 19th, 24th, 25th, and 28th – 31st Respondents: Karras Partners Lawyers Solicitor for the 20th and 32nd Respondents: Mr Burreket, Broun Abrahams Burreket Counsel for the 22nd and 23rd Respondents: Mr Samson SC Solicitor for the 22nd and 23rd Respondents: ATW Family Law Solicitor for the 21st, 26th, and 27th Respondents: Ms Pigdon, Pigdon Norgate Family Lawyers ORDERS
SYC 2931 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VILLAR
Applicant
AND: MR VILLAR
First Respondent
MR B VILLAR
Second Respondent
F PTY LTD (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
8 APRIL 2025
THE COURT ORDERS THAT:
1.The husband pay to the wife $2 million in instalments by way of partial property settlement as follows:
(a)$500,000 on or before 15 April 2025;
(b)$500,000 on or before 13 June 2025;
(c)$500,000 on or before 15 August 2025; and
(d)$500,000 on or before 6 October 2025.
THE COURT NOTES THAT:
A.For the purpose of Orders 2 and 3, the “Injunction Companies or Trusts” means the following:
i.X Pty Ltd;
ii.X Investment Trust;
iii.F Pty Ltd;
iv.The BB Unit Trust and any company in which the trust holds shares directly or indirectly including without limitation BB1 Pty Ltd and BB2 Pty Ltd;
v.The CC Unit Trust and any company in which the trust holds shares directly or indirectly including without limitation CC1 Pty Ltd and CC2 Pty Ltd;
vi.The V Unit Trust and any company in which the trust holds shares directly or indirectly;
vii.The DD Unit Trust and any company in which the trust holds shares directly or indirectly including without limitation DD1 Pty Ltd, EE1 Pty Ltd, EE2 Pty Ltd, EE5 Pty Ltd, EE6 Pty Ltd, DD2 Pty Ltd, EE3 Pty Ltd and EE4 Pty Ltd;
viii.T Pty Ltd The Villar Family Trust;
ix.The EE Trust and any company in which the trust holds shares directly or indirectly;
x.N2 Pty Ltd; and
xi.The FF Unit Trust and any company in which the trust holds shares directly or indirectly.
PENDING FURTHER ORDER, THE COURT FURTHER ORDERS THAT WITHOUT ADMISSION, ON THE WIFE’S UNDETRAKING AS TO DAMAGES:
2.Each of the husband, the second respondent (Mr B Villar), the third respondent (F Pty Ltd), the sixth respondent (N2 Pty Ltd), the 10th Respondent (L1 Pty Ltd), the 14th Respondent (T Pty Ltd), the 15th Respondent (U Pty Ltd), the 16th respondent (V Pty Ltd) and the 17th respondent (X Pty Ltd) be restrained by injunction from causing or permitting any change to the structure or ownership or control of any of the Injunction Companies or Trusts, including but not limited to causing or permitting any:
(a)Changes in officeholdings;
(b)Alteration to shareholding or membership (including the rights and entitlements attaching thereto and the beneficial or ultimate ownership of same);
(c)Changes to the trustees, appointors or any other person who holds any power to deal with any aspect of the structure, terms, interests, entitlements or management of any trust; or
(d)Changes to the beneficiaries or class of beneficiaries of any trust (including the beneficial or ultimate ownership of any interest in any trust); or
(e)Amendments to any constitutive document including without limitation any trust deed or company constitution or shareholders agreement unless requested to do so by a financier when entering into financing facilities in the ordinary course of business;
Without having first provided the wife with not less than 21 days prior written notice of any intention to do so and in the event of any such change occurring the husband shall forthwith notify the wife of the same in writing, save that this restraint does not apply to interests held directly by the second respondent or the 10th respondent in the BB Unit Trust, the CC Unit Trust, the V Unit Trust, the DD Unit Trust, the EE Trust or the FF Unit Trust.
3.Each of the husband, the second respondent (Mr B Villar), the third respondent (F Pty Ltd), the sixth respondent (N2 Pty Ltd), the 10th respondent (L1 Pty Ltd), the 14th respondent (T Pty Ltd), the 15th respondent (U Pty Ltd), the 16th respondent (V Pty Ltd), and the 17th respondent (X Pty Ltd) be restrained by injunction from doing any act or thing or signing any document or causing or permitting any dealing, proposed dealing and/or transaction over the amount of $5 million which would affect the Injunction Companies or Trusts without having first provided the wife with not less than 21 days prior written notice of any intention to do so, save however that this restraint does not apply to interests held directly by the second respondent or the 10th respondent in the BB Unit Trust, the CC Unit Trust, the V Unit Trust, the DD Unit Trust, the EE Trust or the FF Unit Trust.
4.Each of the husband, the wife, the second, third, sixth, 10th, 14th, 15th, 16th, and 17th respondents have liberty to apply on seven days’ notice to chambers and to all parties’ to discharge or vary Orders 2 and 3 hereof, and simultaneously upon exercising such liberty, shall serve upon each other parties an application in a proceeding particularising the order sought and an affidavit adducing evidence in support thereof.
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 Villar & Villar has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine the competing interlocutory relief of:
(a)Ms Villar (“the wife”) and Mr Villar (“the husband”) as to partial property settlement; and
(b)The husband, the wife, Mr B Villar (“the husband’s brother”) as the second respondent, and the third, sixth, 10th, 14th, 15th, 16th and 17th Respondents, as to injunctive orders;
as sought in the Application in a Proceeding of the wife filed on 14 March 2025, the Response to an Application in a Proceeding filed 31 March 2025 the husband, and the Response to an Application in a Proceeding filed by the second, third, sixth, 10th, 14th, 15th, 16th, and 17th respondents. The relief sought by each was refined in Exhibit 9. These reasons assume familiarity with the reasons delivered and orders made on 7 April 2025 (Villar & Villar [2025] FedCFamC1F 228).
BACKGROUND
The husband was born in 1956 and is 69 years old. The wife was born in 1968 and is 56 years old. They commenced cohabitation in late 1998, married in late 1989, and separated on 5 July 2021. They have three children, Mr C Villar born in 1989, being 35 years old, Mr D Villar born in 1991, being 33 years old, and Mr E Villar born in 1994, being 31 years old. The children are the 20th, 22nd, and 21st respondents respectively.
A significant value of the property of the husband and wife comprises interests held by the husband in “the N Entities”. It undertakes real property residential, commercial, retail, hospitality and urban infrastructure developments. This group includes numerous companies, trusts and joint venture structures that in turn holding substantial real property interests. The husband’s brother holds interests and formal positions in the N Entities. The husband has historically held directly or indirectly approximately 67 per cent, or two-thirds, of the N Entities, and his brother held directly or indirectly approximately 33 per cent, or one-third.
The husband exhibited to his affidavit a series of coloured diagrams showing the N Entities structures. By way of overview, the X Investment Trust by way of its trustee, X Pty Ltd, is the primary investment vehicle by which the husband holds his 67 per cent interest in the N Entities. The L Investment Trust, by way of its trustee L1 Pty Ltd, is the primary investment vehicle by which the husband’s brother holds his 33 per cent interest in the N Entities. Each of those trusts in turn hold commensurate units in a series of unit trusts that hold shares in corporations owning valuable real property development sites.
The husband and the wife have other property interests which sit outside the N Entities.
On 3 May 2022 the wife commenced proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) in the Federal Circuit and Family Court of Australia (Division 2). On 4 July 2022 the proceedings were transferred to this Court and on 26 August 2022 the matter was placed in the Major Complex Financial Proceedings list. The wife applies to adjust the property of she and the husband equally. The husband seeks that property be adjusted 70 per cent in his favour and 30 per cent in favour of the wife.
The litigation history
On 2 June 2022 orders were made for the husband to pay spousal maintenance to the wife of $3,062 each week and for he to pay $250,000 by way of litigation funding to the trust account of the wife’s solicitors.
On 1 August 2022 orders were made for the husband to pay $2 million to the wife by way of partial property settlement, for he to pay $110,000 to the wife by way of spousal maintenance, and:
5.That the Husband notify the Wife in the event that he, or an entity in which he holds an interest, enters into any transaction (or agreement to enter into any transaction) over $5 million dollars within 14 days following that transaction or agreement.
On 26 August 2022 orders were made as to the progression of instructions to the single expert property valuer including for the husband to provide a schedule of his direct and indirect property interests as at 30 June 2022.
On 30 November 2022 orders were made providing for the husband to disclose the N1 Group Limited Financial Statements and tax returns for the financial year ending 30 June 2022 to the wife, the appointment of a single forensic accounting expert pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), for the husband to provide substantive responses to requests for disclosure from the wife and to the nomination of a single expert real estate valuer and draft letters of instructions.
On 20 March 2023 orders were made appointing GG Real Estate and HH Pty Ltd as the single real property valuers and providing for the husband to disclose to the wife any valuation reports for real property owned by the parties undertaken in the preceding 12 months.
On 2 November 2023 orders were made for the husband to pay to the wife $250,000 for the purposes of her costs and disbursements associated with these proceedings, for he to transfer to the wife his interest in two real properties by way of partial property settlement, and for the husband to sign documents to progress the single expert real property valuations.
Significant issue exists as to the value of the husband’s interest in the N Entities. The husband and the wife filed a joint balance sheet on 9 April 2024 (Exhibit 5). The wife contends that the value of the property of the parties is in the range of $523 million. The husband contended in Exhibit 5 that it is in the range of $166 million. The wife says that the husband now says his net asset position is $246,513,608. She gives evidence that he has signed statements of assets and liabilities asserting his net worth as $788,820,110 as at 30 June 2023 and $659,920,322 as at 30 June 2024.
The husband and the wife, by way of the husband’s accountants, JJ Financial Services, with the wife’s advisers, W Financial Services, facilitated by their respective solicitors, constructed a draft document identified as the “2023 baseline” (Exhibit 6). Orders made on 19 August 2024 record that the 2023 baseline made a number of adjustments as agreed between the husband and the wife, including eliminating intercompany loan balances, and adjusting the husband’s director and shareholder loan balances and varying shareholding interests in the N Entities. The 2023 baseline:
(a)Estimated the value of the N Entities having regard to the adjustments agreed between the parties to be approximately $420 million, and the husband’s share, being two thirds, valued at approximately $280 million;
(b)Required further adjustment for real property market value increases or decreases following the release of ch 7 single expert real property valuation evidence; and
(c)Did not include the value of the self-managed superannuation fund interests of the parties or the value of trading entities within the N Entities, including as relevant to these reasons, KK Pty Ltd (“KK Pty Ltd”).
Order 9 made on 22 November 2024 required the draft of the 2023 baseline to be completed by the single forensic accounting expert, Mr AA. On 7 April 2024 the husband’s application to discharge Order 9 made 22 November 2024 was dismissed. The single expert will now complete the 2023 baseline. By way of Order 10 made 22 November 2024, the parties, by way of their lawyers, are to direct their accountants to construct a baseline identifying the net asset value of the N Entities as at 30 June 2024 on the same basis that the 2023 baseline was prepared.
The wife contends that structural changes have been made to the N Entities since 1 July 2023, transferring valuable interests to entities which the adult children of the wife and the husband, but not the husband, now have an interest. She makes complaint as to the husband not disclosing these transactions within the time prescribed by Order 5 made 1 August 2022 as to four subject matters. The wife contends that the 2023 baseline will be forensically significant as it will identify and permit an assessment of the materiality of the structural changes made by the husband to the N Entities during the currency of the proceedings. This conduct is submitted to be relevant to the terms of the partial property orders and injunctive orders sought by the wife.
The changes to the structure of the N Entities identified by the wife
KK Pty Ltd supplies energy sources to N4 Pty Ltd by contract. The wife says it generates significant revenue, being more than $6 million in the year ended 30 June 2023, and having retained earnings more than $470,000 for the nine-month period ending 31 March 2024, after the date of the transfer of the shares. It is to be valued as a trading enterprise by the single forensic accounting expert. Until 1 July 2023, the N Entities held 76 per cent of KK Pty Ltd, Mr E Villar held 16 per cent, and Mr LL, the husband’s brother’s son, held eight per cent. During July 2004 the husband indirectly disclosed, by way of information to a single expert, the transfer of the N Entities interests in KK Pty Ltd to J2 Pty Ltd (the 27th Respondent) as trustee for the MM Trust 12 months earlier in mid-2023. Mr E Villar is the sole director of J2 Pty Ltd and Mr D Villar is the sole shareholder. The wife contends that the transfer was for nominal consideration.
The husband concedes “an oversight” in failing to disclose the transaction in compliance with Order 5 made 1 August 2022. He cites the wife providing no explanation for not acting promptly upon becoming aware of the transaction in July 2025. It is his case that KK Pty Ltd was established for the benefit of Mr E Villar and his involvement was required to establish the entity. He identifies that, for the year ended 30 June 2023, KK Pty Ltd lost $6,660 and had a total equity recorded in its published financial statements of $37,806. He contends the transaction is de minimis relative to the property of the parties, identifying that the object of the transaction was to provide Mr E Villar with business and learning opportunities in operating the entity independently.
The income statement of KK Pty Ltd for the year ended 30 June 2023 in its published financial statements recorded a gross profit on trading of $1,135,053 with significant expenses being incurred in that year by way of bad debts being written off, consultants fees, and salaries and wages. The value of the disposal of the N Entities interests in KK Pty Ltd in mid-2023 will be a matter for expert and other evidence at trial.
H1 Pty Ltd (the 24th respondent) (“H1 Pty Ltd”) holds interests in a developmental site at NN Street, Suburb OO. On 16 December 2024 the husband disclosed to the wife that changes made to the shareholdings in H1 Pty Ltd in late 2024 reduced his interests from 67 per cent to 39.5 per cent, with a commensurate increase in the interest held by entities associated with the husband and wife's three adult sons and the husband's brother, without any, or any substantial, consideration being paid for the dilution of the husband's interest and without the others contributing to capital. The husband concedes that he failed to notify the wife of the late 2024 transaction within the time specified by Order 5 made 1 August 2022.
The wife says that the late 2024 transaction caused the following legal interests in H1 Pty Ltd to be created:
(a)J1 Pty Ltd (the 26th Respondent), of which Mr D Villar is the sole shareholder and Mr E Villar is the sole director, having no interest in H1 Pty Ltd, achieving 22.1 per cent of H1 Pty Ltd;
(b)M Pty Ltd(the 32nd Respondent), of which Mr E Villar is the sole shareholder and Mr D Villar sole director, receiving 50 per cent of new G class of shares. This class of shares have no voting rights but can receive income and capital; and
(c)G Pty Ltd(the 23rd Respondent), of which Mr E Villar is the sole shareholder and Mr D Villar is the sole director, also receiving 50 per cent of new G class of shares.
It is the husband’s evidence that the changes made to the H1 Pty Ltd shareholdings in late 2024 were affected so that the children of he and the wife could develop the NN Street, Suburb OO site in the future. It is his contention that the Suburb OO site is “currently generating a loss if the site is sold on an “As is” basis” as demonstrated by a document prepared by his accountants. It is his case that the disposal “improves the balance sheet by reducing [his] loss.” This too will be a matter for evidence at trial, as will the wife’s contention that each of the changes to KK Pty Ltd and H1 Pty Ltd “materially reduce the value” of the husband’s interest in the N Entities.
The wife says her concerns as to the husband reducing the value of his interests in the N Entities are further heightened by way of:
(a)N3 Pty Ltd entered a contract in mid-2024 to acquire a property at QQ Street, Sydney (“the QQ Street property”) for $505 million. N3 Pty Ltd is ultimately held through a series of other corporations and trusts as to 67 per cent by the husband and 33 per cent by the husband’s brother.
(b)The husband concedes he did not notify the wife of this transaction in the terms specified in Order 5 made 1 August 2022, such notification being made on 24 September 2024.
(c)On 23 December 2024, being a time when the offices of the solicitors for both the husband and the wife were contended to be closed for the Christmas break, the husband disclosed that in late 2024 K3 Pty Ltd had been substituted for N3 Pty Ltd as the purchaser for the QQ Street property acquisition, and that the acquisition settled in late 2024. He further disclosed that the funds applied by N3 Pty Ltd to the acquisition of $53,199,833 have by “book entry” been recorded as a loan liability payable by K3 Pty Ltd, absent disclosure of any loan agreement document, and absent security.
It is the wife’s case that K2 Pty Ltd is the sole shareholder of K3 Pty Ltd, that 50 per cent of the issued share capital in K2 Pty Ltd are not N Entities, and that the husband has no interest in K3 Pty Ltd. The wife says she does not believe there is a genuine commercial reason for these transactions in the shadow of the settlement of the QQ Street property acquisition, identifying the timing of the husband’s disclosure as to the shift in the potential benefit in the project after the event.
The husband says that in late 2024 he advised the wife by way of his solicitors as to an agreement made between N3 Pty Ltd and “PP Financial Services” whereby PP Financial Services will eventually take a 75 per cent interest in the QQ Street property. The husband’s implicit submission is that there is nothing nefarious in he not having any interest in the “upstream holding company entities”. He says his role in the acquisition is to support his and the wife’s son’s interests as part of a joint venture arrangement with PP Financial Services, including the provision of financial support from N3 Pty Ltd. It is his case that it is the sons of he and the wife who ultimately stand behind the K Entities. The husband further identifies a contended delay in the wife seeking to agitate complaint by way of this transaction.
In early 2025, the husband advised by way of letter from his solicitors that in early 2025, RR Pty Ltd, wholly owned by H2 Pty Ltd in turn wholly owned by H1 Pty Ltd (the entity that the wife contends the husband has materially reduced the value of his interest in) purchased a property at RR Street, Suburb OO for $14.8 million, of which $10.4 million was advanced by the NAB. The NAB advance was secured by way of a mortgage over SS Street, Suburb TT, being a property owned by CC2 Pty Ltd, ultimately owned by the CC Unit Trust, held 67 per cent by the husband through the X Investment Trust and 33 per cent by the husband’s brother through the L Investment Trust. The wife seeks 100 per cent of the units in the CC Unit Trust by way of her substantive relief and consequently the interests it holds in the SS Street property. She says that the security provided prejudices her substantive claim. She contends that the husband has not identified a connection between RR Street and the provision of security by CC2 Pty Ltd.
The husband submitted that the wife’s concerns as to prejudice were grounded from her “lack of awareness” of any commercial purpose behind the transaction. His contention that the transaction has been explained as being “clearly in the ordinary course of business of the activities of the group” was, if said to be identified in his affidavit of 31 March 2025, somewhat obtuse. It is his case that if the final relief as sought by the wife as to CC Unit Trust is achieved, the debt would be extinguished, and the property transferred unencumbered. He submitted there was “no logical basis upon which the Court would support the rationale underlying the wife’s expressed fears”. Again, this will be a matter for expert and other evidence at trial.
Partial property settlement
Exhibit 9 records the parameters of the dispute between the husband and the wife:
Partial Property Settlement
26. That within 7 days from the date of these Orders the First Respondent Husband pay to the Applicant Wife the sum of
[FIRST RESPONDENT'S CONTENDED VERSION]
$500,000.00 and within 90 days from the date of these Orders the First Respondent Husband pay to the Applicant Wife the further sum of $500,000.00
[OR APPLICANT'S CONTENDED VERSION]
$2,000,000
by way of interim property settlement.
The wife seeks partial property settlement primarily for litigation funding.
The costs notice of the wife (Exhibit 4) records the total costs incurred to date of $1.608 million of which $1.568 million has been paid, $40,000 has not yet been billed, and $416,702 is held in trust. It records that the costs have been sourced by way of partial property payments from the husband. The wife’s estimated costs to conclusion of the trial are an additional $1,607,580.
The costs notice of the husband (Exhibit 8) encountered challenges in complying with the Rules. It estimated that the total costs paid to the husband’s prior solicitors, including paying ch 7 experts in the first instance and his accountants, JJ Financial Services, up to 22 November 2024 were in the range of $2.5 million. The costs and disbursements of his current solicitors up to 3 April 2025 are $187,776, of which $83,681 is outstanding and $46,939 is held in trust. His costs for counsel and solicitors for the purpose of the interim hearing on 7 April 2025 alone were estimated to be $103,000. He estimates he has paid experts $880,901 since 3 December 2024. His total costs going forward to the end of the trial, including the interim hearing on 7 April 2025, not including payments to be experts, to be in the range of $1.55 million. On one version, the construction of his costs notice at Exhibit 8 estimates his total costs and disbursements in the proceedings to be in the range of $5.934 million. The costs notice did not comply with the r 12.06(6) of the Rules, requiring it to record the source of funds. The husband gives no evidence as to any impediment in paying his own legal fees from his property and resources.
The husband correctly identified in submissions that more is required to exercise a partial property power in favour of the wife than the mere fact that, upon a final hearing, the wife would receive more than the property sought on an interim basis (Marchant & Marchant (2012) FLC 93-520), and that the amount the wife seeks by way of partial property exceeds her own costs estimate to the conclusion of the trial. He contended that should orders be made for him to pay to the wife $1 million, this would result in her having over $1.5 million in her solicitor’s trust account to prosecute her application. He submitted that is sufficient, and should a further need arise, a further application can be made at the appropriate time for further litigation funding.
Both parties agree it is just and equitable to adjust property to the wife. In the circumstances, I am satisfied that it is in the interests of justice to exercise an interim or partial property power (Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466).
The husband is in a position of relative financial strength compared to the wife (Zschokke and Zschokke (1996) FLC 92-693). The wife’s current application for an exercise of property adjusting discretion must be considered in the context of the husband’s own access to the property of the parties and his control of the income producing assets post-separation. There is a requirement to ensure some leveling of the playing field to conduct this complex litigation up to trial in circumstances where:
(a)The husband has the province of documents and information as to the intricate web comprising the property of the parties, including the relationship of those property interests with the interests of non-marriage parties;
(b)The wife is now dealing with 31 additional respondents to the litigation, who may align in some interests;
(c)The wife has historically encountered challenges in engaging with belated disclosure of changes to the N Entities interests; and
(d)The wife may need further litigation funding. Such an order ensures that the wife is comfortably resourced to complete the litigation, avoiding the requirement to again make application for litigation funding. There is some merit to her submission that this is the third application she has been required to make for litigation funding, the first application being the subject of a review. She has little confidence in the husband “acting responsibly” by meeting any further request for litigation funding. The current listing of discrete relief as to ch 7 expert evidence (if agreement could not be achieved) mushroomed into a complex interim hearing of a multitude of issues producing thousands of pages of evidence. If history is indicative of the future, it ought to be reasonably anticipated that issues between the 33 parties will proliferate into further interlocutory contests as the expert and other evidence distils on the pathway to trial, such that the prospect of “costs blowouts” ought to be firmly in mind.
There is no suggestion by the husband that:
(a)The funds adjusted to the wife by way of prior partial property orders to date have been unreasonably applied; or
(b)The value of funds currently sought by the wife will not compromise the final property outcome, such that the remaining property is sufficient to meet the legitimate expectation of both parties at the final hearing and is capable of being reversed or adjusted if it is subsequently considered necessary to do so.
The wife did not specify the source of funds that the husband will access to satisfy an order for payment of $2 million. The husband did not submit that he could not facilitate the payment but said, absent evidentiary foundation, that such payment would require cash flow management. I infer he has capacity to pay the sum sought (see Bing and Bing (2007) FLC 93-318).
The interests of justice direct that an order be made for the husband to pay to the wife by way of partial property settlement the sum of $2 million. The wife’s costs will be incrementally incurred in the preparation of the matter for trial, such that justice and equity will be achieved if the property is adjusted by way of four instalments of $500,000. This may assist in the management of the husband’s cash flow. The husband agrees that the first instalment would be paid within seven days. The other instalments will be staged within now and the trial dates.
The wife’s application for injunctive orders for the preservation of property
The relief sought by the wife in paragraphs 12 and 13 of her Application in a Proceeding filed on 14 March 2025 and the Responses to Application in a Proceeding of each of the husband and the second to 19th respondents filed on 31 March 2025 distilled as identified in Exhibit 9.
By way of Exhibit 9, the husband and the wife agree to the following, save that as underlined which the wife seeks and the husband and the second, third, sixth, 10th, 14th, 15th, 16th, and 17th respondents opposes:
27. The Court NOTES that for the purpose of these Orders, the Injunction Companies or Trusts means the following:
W27.1 [X Pty Ltd];
W27.2 The [X Investment Trust];
27.1. [F Pty Ltd];
27.2. The [BB Unit Trust] and any company in which the trust holds shares directly or indirectly including without limitation [BB1 Pty Ltd] and [BB2 Pty Ltd];
27.3. The [CC Unit Trust] and any company in which the trust holds shares directly or indirectly including without limitation [CC1 Pty Ltd] and [CC2 Pty Ltd];
27.4. The [V Unit Trust] and any company in which the trust holds shares directly or indirectly.
27.5. The [DD Unit Trust] and any company in which the trust holds shares directly or indirectly including without limitation [DD1 Pty Ltd], [EE1 Pty Ltd], [EE2 Pty Ltd], [EE5 Pty Ltd], [EE6 Pty Ltd], [DD2 Pty Ltd], [EE3 Pty Ltd] and [EE4 Pty Ltd].
W27.8 [T Pty Ltd]
W27.9 The [Villar] Family Trust;
27.6. The [EE Trust] and any company in which the trust holds shares directly or indirectly.
27.7. [N2 Pty Ltd]; and
27.8.The [FF Unit Trust] and any company in which the trust holds shares directly or indirectly.
28. Without admission, each of the First Respondent Husband, the 2nd Respondent ([Mr B Villar]), the 3rd respondent ([F Pty Ltd]) and the 6th respondent ([N2 Pty Ltd]), the 10th Respondent ([L1 Pty Ltd]), the 14th Respondent ([T Pty Ltd]), the 15th Respondent ([U Pty Ltd]), the 16th respondent ([V Pty Ltd]) and the 17th respondent ([X Pty Ltd]) be restrained by injunction from causing or permitting any change to the structure or ownership or control of any of the Injunction Companies or Trusts, including but not limited to causing or permitting any:
28.1. changes in officeholdings;
28.2. alteration to shareholding or membership (including the rights and entitlements attaching thereto and the beneficial or ultimate ownership of same);
28.3. changes to the trustees, appointors or any other person who holds any power to deal with any aspect of the structure, terms, interests, entitlements or management of any trust; or
W28.4 changes to the beneficiaries or class of beneficiaries of any trust (including the beneficial or ultimate ownership of any interest in any trust); or
28.4. amendments to any constitutive document including without limitation any trust deed or company constitution or shareholders agreement unless requested to do so by a financier when entering into financing facilities in the ordinary course of business,
without having first provided the Applicant Wife with not less than 28 days prior written notice of any intention to do so AND in the event of any such change occurring the First Respondent Husband shall forthwith notify the Applicant Wife of the same in writing, save that this restraint does not apply to interests held directly by the 2nd respondent or the 10th respondent in the [BB Unit Trust], the [CC Unit Trust], the [V Unit Trust], the [DD Unit Trust], the [EE Trust] or the [FF Unit Trust].
(Underlining emphasis in original)
The wife seeks the following further order:
29.Without admission, […] subject to the Applicant Wife giving an Undertaking as to Damages in the usual form to the Court, that
…
each of the First Respondent Husband, the 2nd Respondent ([Mr B Villar]), the 3rd respondent ([F Pty Ltd]), the 6th respondent ([N2 Pty Ltd]), the 10th Respondent ([L1 Pty Ltd]), the 14th Respondent ([T Pty Ltd]), the 15th Respondent ([U Pty Ltd]), the 16th respondent ([V Pty Ltd]) and the 17th respondent ([X Pty Ltd]) be restrained by injunction from doing any act or thing or signing any document or causing or permitting any dealing, proposed dealing and/or transaction over the amount of $5 million which would affect the Injunction Companies or Trusts without having first provided the wife with not less than 28 days prior written notice of any intention to do so, save however that this restraint does not apply to interests held directly by the 2nd respondent or the 10th respondent in the [BB Unit Trust], the [CC Unit Trust], the [V Unit Trust], the [DD Unit Trust], the [EE Trust] or the [FF Unit Trust].
The husband and each of the second, third, sixth, 10th, 14th, 15th, 16th, and 17th respondents oppose that order as sought by the wife, and instead sought an order in the following terms:
29. Without admission, the First Respondent Husband undertakes to the Court, subject to the Applicant Wife giving an Undertaking as to Damages in the usual form to the Court, that
…
the First Respondent Husband will provide the Applicant Wife with not less than 7 days prior written notice of any dealing, proposed dealing and/or transaction over the amount of $20 million which would affect the following properties and/or entities only, save however that the Undertaking does not extend to any dealing, proposed dealing and/or transaction entered into in the ordinary course of business unless said dealing, proposed dealing and/or transaction is to a value or liability in excess of $75 million:
29.1. [CC2 Pty Ltd] - - [SS Street, Suburb TT] NSW; and
29.2. [BB2 Pty Ltd] - - [V Street, Suburb BB] NSW.
The wife put into issue the characterisation of both the husband and the other respondents as to her relief sought as being “freezing orders”. She identified:
(a)A structural injunction at paragraph 28 of Exhibit 9, requiring the mandatory provision of notice as to any proposed change of ownership or control in entities in which she seeks in specie final relief; and
(b)A transactional injunction at paragraph 29 of Exhibit 9, requiring the same mandatory provision of notice as to any proposed direct or indirect dealing with (including encumbering) any of the properties of which she seeks in specie relief.
The wife must establish both that there is an arguable case with sufficient likelihood of success to justify the relief sought, and that the balance of convenience favours the grant of the injunctions, in that there is a danger or risk of dissipation of, or dealings with, assets which will frustrate any judgment in her favour (Tsiang & Wu and Ors (2019) FLC 93-911).
The wife claims no direct interest in the property identified in the injunction. The subject matter of the litigation is her right to claim orders for property adjustment under Pt VIII of the Act, particularly s 79, and the pool of assets the subject of that claim, of which specified in specie property that she seeks would form a part. It was not put into contest that the most recent formulation of the wife’s claim in her proposed amended application, to be filed pursuant to orders made yesterday, includes in specie transfers that are the subject of control by way of the husband and/or the second, third, sixth, 10th, 14th, 15th, 16th, and 17th respondent, or could be the subject of being dealt with by each of the husband and/or the other respondents. The wife’s undertaking as to damages is Exhibit 3.
The wife submits that the husband’s conduct in conjunction with the other respondents, as to KK Pty Ltd, H1 Pty Ltd, the QQ Street property, and the CC Centre as identified earlier in these reasons, constitute significant transactions during the proceedings impacting on the value of the husband’s interest in the N Entities and prejudicing her final in specie relief sought. It is in this context that she seeks a methodology to be sufficiently appraised by notice to take action to prevent steps being undertaken adverse to her interest and position in the proceedings. She further contends that Order 5 made on 1 August 2022, providing for notice to be given 14 days after an agreement or transaction being entered or undertaken, has been ineffective. Each of these submissions have merit as to danger or risk of dissipation of, or dealings with, assets that will frustrate judgment in the terms sought by the wife.
The husband gives evidence that he has encountered challenges in staying across the many complex transactions and dealings of the N Entities and relies on others to assist him in providing information. Both he and the second respondent give evidence as to the terms of the restraints sought by the wife being “unworkable” having regard to the size, complexity, and nature of the Group’s operations, specifically targeting the 28-day notice period and the value of transactions being greater than $5 million. They contend each would stymie the operations of the enterprise. The husband gives some evidence as to historical examples in 2018 where he says competitive and effective conduct was required to make rapid decisions and commitments as to very large transactions. He gives evidence as to a recent transaction in 2025 as to a requirement to shift lenders on a $440 million debt facility for the R Property Development that was due to expire, leading to the FF Unit Trust successfully providing the a large property as security. It is the contention of the husband and the other respondents that the proposed relief that they promote will have a lesser, and implicitly a reasonably acceptable impact, on the day-to-day operations of the N Entities. The husband minimises his failures to comply with Order 5 made on 1 August 2022.
I accept the wife’s submission that the husband has not identified any valuable commercial opportunity that has been lost to date or may be lost in the future if the orders are made as sought by the wife. The evidence of the husband and his brother as to prejudice should the orders as sought by the wife be made as to the complex group having many moving parts is broad. There is some merit to the wife’s submission that transactions undertaken by the group based on real property are in train for not insignificant periods of time prior to completion. The 2025 R Property Development debt refinance is an example of a clearly anticipated transaction that had known components for a long lead in period prior to its expiry. It is within the capacity of the husband, and on the husband’s own evidence, specifically the other identified respondents subject to the proposed injunction, to disclose to the wife by way of the notice as to the identity, mechanics, and purpose of either real property dealings or as to the control of the identified entities by way of agreements or transactions as and when they present, as to how and when they continue to unfold. I accept her submission that the orders sought are limited to being characterised as notice provisions that are anticipated to operate for a relatively short duration, it being some seven months to trial.
The terms of the order for notice as to changes in control as proposed by the husband and the other respondents are a narrower restraint, and restructuring, as has occurred during the proceedings, could again occur without notice to the wife. The carve outs promoted by the husband would permit him to deal with the control of the X Investment Trust, being the primary vehicle in which he holds interest in the N1 Group Limited, without notice to the wife. His proposal to omit T Pty Ltd and the Villar Family Trust from the control notification would permit him to deal, without notice, with the valuable industrial property ultimately held by the EE Trust at EE Street, Suburb DD. I accept the wife’s submissions that the husband’s proposed omission of his brother and his investment entities would leave a gap by which steps could be taken to restructure the beneficial ownership of the group. Those steps could be taken by the other entities without the husband’s knowledge or involvement. For not dissimilar reasons, the husband’s proposal for he alone to give a personal undertaking, rather than a court order to apply to all identified entities, would not be effective. The orders sought by the wife is a restraint against all identified entities with powers to deal with specified properties. The threshold of $5 million proposed by the wife was acceptable to the husband in 2022. The accumulated effect of his proposed value thresholds would, on some constructions, not activate a requirement for notice, such that any order in the terms proposed by the husband and the other respondents would be of little utility. I accept the wife’s submission that the carve out notice limitations proposed by the husband to only to apply to CC2 Pty Ltd and BB2 Pty Ltd properties could result, in the circumstances of the complex web of the N Entities, in a failure of she being informed by way of disclosure prior to the entry of transactions or dealings that will impact upon her interest in the litigation, in not dissimilar terms as has occurred to date.
The wife has demonstrated a case to receive notice prior to changes being made to the relevant corporate and trust entities or as to any dealing with identified property interests. To balance the prejudice identified by the husband and the other respondents, the notice period will be reduced to 21 days. That time frame will give the wife an opportunity to digest and evaluate proposed arrangements or transactions to be undertaken. She will thereafter have the onus to make application, if so advised, to prevent the arrangement or transaction proceeding or being implemented, if she considers them to be objectionable.
In the event the husband or the other respondents identify a commercial necessity to abridge that notice period, he or they can request the wife’s consent to such abridgment in writing, assuming he or they will disclose relevant documents and information to the wife as to the terms, mechanics, and benefits of the transaction, to afford the wife an opportunity to consider and evaluate it. If that process is unsuccessful, a capacity will exist to exercise a liberty to restore the proceeding on short notice to vary the terms of the injunctive notice orders. The balance of convenience favours the making of the notice orders in those terms.
For all of the above reasons, I make the orders as set out herein.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 8 April 2025
SCHEDULE OF PARTIES
SYC 2931 of 2022 Respondents
Fourth Respondent:
O PTY LTD
Fifth Respondent:
N1 GROUP LIMITED
Sixth Respondent:
N2 PTY LTD
Seventh Respondent:
P1 PTY LTD
Eighth Respondent:
P2 PTY LTD
Ninth Respondent:
Q PTY LTD
Tenth Respondent:
L1 PTY LTD
Eleventh Respondent:
L2 PTY LTD
Twelfth Respondent:
VILLAR PTY LTD
Thirteenth Respondent:
S PTY LTD
Fourteenth Respondent:
T PTY LTD
Fifteenth Respondent:
U PTY LTD
Sixteenth Respondent:
V PTY LTD
Seventeenth Respondent:
X PTY LTD
Eighteenth Respondent:
Y PTY LTD
Nineteenth Respondent:
Z PTY LTD
Twentieth Respondent:
MR C VILLAR
Twenty-first Respondent:
MR E VILLAR
Twenty-second Respondent:
MR D VILLAR
Twenty-third Respondent:
G PTY LTD
Twenty-fourth Respondent:
H1 PTY LTD
Twenty-fifth Respondent:
H2 PTY LTD
Twenty-sixth Respondent:
J1 PTY LTD
Twenty-seventh Respondent:
J2 PTY LTD
Twenty-eighth Respondent:
K1 PTY LTD
Twenty-ninth Respondent:
K2 PTY LTD
Thirtieth Respondent:
K3 PTY LTD
Thirty-first Respondent:
L3 PTY LTD
Thirty-second Respondent
M PTY LTD
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