Viola & Ors and Latham & Ors - [2015] FamCA 826

FAMILY COURT OF AUSTRALIA

VIOLA AND ORS & LATHAM AND ORS

[2015] FamCA 826

FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Wife’s application for leave to commence proceedings under the Corporations Act 2001 (Cth) on behalf of companies in which she and the husband have an interest as against the husband and his company and a third party and the third party’s company – derivative action – where it is found that there is a serious question to be tried and that the wife is acting in good faith but that it is not in the best interests of the companies for leave to be granted – final orders made that the wife’s application for a derivative action be dismissed

FAMILY LAW – PROPERTY – INTERLOCUTORY INJUNCTION – Wife’s application to restrain the husband from accessing his superannuation entitlements and that he account for any previous withdrawals made in breach of previous orders – where the husband admits that he has made withdrawals from his superannuation entitlements but denies a breach of previous orders question as to whether the husband should account for any previous withdrawals at an interlocutory stage – where the superannuation fund has been almost entirely depleted – where the husband has insufficient funds to repay the amounts withdrawn – interim orders made that the husband file and serve an affidavit setting out the details of his withdrawals and the application of those funds – interim orders made that the husband be restrained from winding up the superannuation fund.

Corporations Act 2001 (Cth) s 237
Family Law Act 1975 (Cth)

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Chahwan v Euphoric Pty Ltd t/as Clay & Michel (2008) 245 ALR 780; [2008] NSWCA 52
Coeur de Lion Investments Pty Ltd v Kelly [2013] QCA 160; [2014] 1 Qd R 296
Jensen & Ors v RQYS Marina Ltd & Ors [2014] QSC 243
Maher v Honeysett & Maher Electrical Contractors [2005] NSWSC 859
MGCC v Vinciguerra [2011] FCAFC 31
Re Gladstone Pacific Nickel Ltd [2011] NSWSC 1235; (2011) 86 ACSR 432
Stanford v Stanford (2012) 247 CLR 108
Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291
Swansson v R A Pratt Properties Pty Ltd [2002] NSWSC 583

FIRST APPLICANT:

Ms Viola

PROPOSED SECOND APPLICANT:

B Pty Ltd

PROPOSED THIRD APPLICANT:

C Pty Ltd

FIRST RESPONDENT:	Mr Latham
PROPOSED SECOND RESPONDENT:	Mr Baxter

PROPOSED THIRD RESPONDENT:

D Pty Ltd

PROPOSED FOURTH RESPONDENT:

E Pty Ltd

FILE NUMBER:

MLC

5668

2012

DATE DELIVERED:

6 October 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATES:

11 & 31 March 2015

REPRESENTATION

COUNSEL FOR THE FIRST APPLICANT:

Mr R Peters

SOLICITOR FOR THE FIRST APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE PROPOSED SECOND APPLICANT:

Not applicable

SOLICITOR FOR THE PROPOSED SECOND APPLICANT:

Not applicable

COUNSEL FOR THE PROPOSED THIRD APPLICANT:

Not applicable

SOLICITOR FOR THE PROPOSED THIRD APPLICANT:

Not applicable

COUNSEL FOR THE FIRST RESPONDENT AND…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FamCA 826
Decision Date: 6 October 2015

CaseChat Overview and Summary

In the matter of *Viola & Ors and Latham & Ors*, Justice Macmillan of the Supreme Court of Victoria was required to determine applications concerning financial matters and superannuation entitlements in a family law context. The proceedings involved the wife seeking orders related to withdrawals from the husband's superannuation and an injunction to prevent the winding up of a superannuation fund.

The central legal issues before the Court included the husband's obligation to disclose withdrawals from his superannuation entitlements, particularly those held in the Latham Superannuation Fund, and the application of those funds. Furthermore, the Court considered whether to grant an injunction restraining the husband from winding up the Latham Superannuation Fund without the wife's consent or a court order. The Court also addressed applications for costs and the dismissal of certain filed documents.

Justice Macmillan ordered the husband to file and serve an affidavit detailing all withdrawals from his superannuation since separation, including particulars of how those funds were applied. The Court also granted an injunction preventing the husband from winding up the Latham Superannuation Fund, except with the wife's written consent or a further court order. The parties were directed to file written submissions regarding costs, with a subsequent deadline for replies. Certain applications and responses filed by the parties were dismissed, and the matter was adjourned for mention.

Orders

Orders of the court

IT IS ORDERED THAT

By 4.00 pm on 28 October 2015, the husband file and serve upon solicitors for the wife an affidavit setting out the details of all withdrawals made by him from his superannuation entitlements since separation, including but not limited to those held in the Latham Superannuation Fund, together with particulars as to the application of those funds.

The husband, his servants and/or agents, be and are hereby restrained from winding up the Latham Superannuation Fund save and except with the wife’s consent in writing or by order of this Court.

On or before 4.00 pm on 27 October 2015 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the hearing of this matter.

On or before 4.00 pm on 17 November 2015 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to the hearing of this matter.

The wife’s further amended application in a case filed 13 February 2015, the husband’s response to further amended application in a case filed 5 March 2015 and the proposed second and third respondents’ response to an application in a case filed 11 March 2015 be otherwise dismissed.

The matter be otherwise adjourned for mention before Justice Macmillan at 9.00 am on 9 November 2015.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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