Webster & Webster

Case [2024] FedCFamC1F 448

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Webster & Webster [2024] FedCFamC1F 448  

File number(s): SYC 3385 of 2023
Judgment of: BRASCH J
Date of judgment: 2 July 2024
Catchwords: FAMILY LAW – INTERIM PROPERTY – Where the wife sought a range of s 114(3) injunctions enjoining the husband from declaring or dealing with dividends and his loan account, conditional upon information being provided to her along with some permitted transactions -Where the wife has a serious issue to be tried – Where balance of convenience does not favour the granting of the injunctions – No orders made – Wife’s application dismissed – Costs reserved to trial.
Legislation: Family Law Act 1975 (Cth) ss 75(2)(o), 114(3)
Cases cited:

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57

M v DB [2006] FamCA 1380; (2006) FLC 93-293

Palmer v Parbery [2019] QCA 27; (2019) 136 ASCR 26

Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319

Sieling and Sieling [1979] FamCA 23; (1979) FLC 90-627

Skyworks v 32 Drummoyne Road [2017] NSWSC 343

Tsiang & Wu and Ors [2019] FamCAFC 128; (2019) FLC 93-911

Waugh v Waugh [2000] FamCA 1183; (2000) FLC 93-052
Division: Division 1 First Instance
Number of paragraphs: 52
Date of hearing: 28 June 2024
Place: Sydney
Counsel for the Applicant: Mr North SC
Solicitor for the Applicant: Broun Abrahams Burreket
Counsel for the Respondent: Mr Cummings SC
Solicitor for the Respondent: Pearson Emerson Family Lawyers

ORDERS

SYC 3385 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS WEBSTER

Applicant
AND:

MR WEBSTER

Respondent

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

2 JULY 2024

THE COURT ORDERS THAT:

1.The wife’s Application in a Proceeding filed 24 June 2024 is dismissed.

2.The parties’ costs of and incidental to the Application in a Proceeding filed 24 June 2024 is reserved to the trial Judge, and it is certified it was appropriate for both parties to engage Senior Counsel.

AND IT IS NOTED:

A.The parties are attending a mediation on 30 August 2024.

B.If the matter does not resolve, it is next listed for a Case Management Hearing on 20 September 2024. 

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the

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AGLC
Webster & Webster [2024] FedCFamC1F 448
Case
[2024] FedCFamC1F 448
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Webster & Webster involved a dispute between Ms Webster and Mr Webster regarding interim property matters. Ms Webster sought a range of injunctions under section 114(3) of the Family Law Act 1975, aiming to prevent Mr Webster from declaring or dealing with dividends and his loan account, contingent on the provision of certain information to her and some permitted transactions. The case centred on the substantial asset pool of the parties, which amounted to approximately $294 million according to Ms Webster and almost $211 million according to Mr Webster. The wealth of the parties stemmed from the Webster Group, with Mr Webster serving as the Chairman. The dispute arose from a proposed dividend declaration by Mr Webster, which Ms Webster contested.

The legal issues before the court included whether the balance of convenience favoured the granting of the injunctions sought by Ms Webster. The court needed to assess whether Ms Webster had a serious issue to be tried and whether granting the injunctions would result in an unconscionable outcome. Additionally, the court had to consider the financial implications and the effect of the injunctions on both parties. After considering the submissions and the evidence presented, the court concluded that Ms Webster had a serious issue to be tried, but the balance of convenience did not favour the granting of the injunctions. The court found that the potential harm to Mr Webster if the injunctions were granted outweighed any potential benefit to Ms Webster.

The court dismissed Ms Webster’s application and reserved the costs of the proceeding to the trial judge, noting that it was appropriate for both parties to engage Senior Counsel. The court also noted that the parties were scheduled for a mediation on 30 August 2024, with a subsequent Case Management Hearing on 20 September 2024 if the matter did not resolve. The form of the order was subject to entry in the Court’s records, and any minor typographical or grammatical errors could be reviewed or varied according to the relevant rules.

Orders

Orders of the court

SYC 3385 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS WEBSTER

Applicant

AND:

MR WEBSTER

Respondent

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

2 JULY 2024

THE COURT ORDERS THAT:

1. The wife’s Application in a Proceeding filed 24 June 2024 is dismissed.

2. The parties’ costs of and incidental to the Application in a Proceeding filed 24 June 2024 is reserved to the trial Judge, and it is certified it was appropriate for both parties to engage Senior Counsel.

AND IT IS NOTED:

A. The parties are attending a mediation on 30 August 2024.

B. If the matter does not resolve, it is next listed for a Case Management Hearing on 20 September 2024.

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.

Background

Background to the litigation

When the Application in a Proceeding was filed on 24 June 2024, the wife sought an urgent hearing before 1 July 2024 to deal with a dividend the husband proposed to declare on that date. However, by the time of oral submissions the urgency fell away with the wife’s Senior Counsel highlighting they were not seeking to enjoin the husband from declaring the 1 July 2024 dividend and appropriately accepted “the sky would not fall down” if I was unable to deliver judgment on 1 July 2024. Background The wife was born in 1959 and the husband in 1949. The parties married in 1986 and separated on 10 February 2016. Obviously, this was a relationship of some 30 years with 8 years post-separation. The parties have two adult children between them being Ms B and Mr C. The husband has three adult children from an earlier marriage, Mr E, Ms F and Mr G. It is uncontroversial that the parties stand possessed of a handsome asset pool: just over $294 million on the wife’s case and almost $211 million on the husband’s. The wife contends, without demur at least before me on Friday, the husband controls 90 per cent of the asset pool. The wife seeks an adjustment of 50 per cent of the property pool on a final basis and the husband proposes she receive 30 per cent (Affidavit of the Husband filed 27 June 2024, paragraph 57). On a worst case for the wife, as the competing balance sheets currently stand, 30 percent of almost $211 million is $63.3 million, on a best case, 50 per cent of just over $294 million is a little more than $147 million. The parties’ wealth stems from the Webster Group. It is common ground that the Webster Group conducts business in and around City H and Region J. The Webster Group includes entities such as D1 Pty Ltd and the Webster Family Trust (“the Trust”). The husband is the Chairman of the Group. In 2022, the husband made payments totalling $5.15 million to help his three brothers. Proceedings were not on foot at that time. The wife complains about this now and points to it as conduct which would support the injunctions she now seeks. She says she was not consulted about this at the time and only discovered the payments when the husband disclosed his personal CBA account statements in April 2024. The wife commenced these proceedings by way of Initiating Application filed on 15 May 2023. In December 2023, the husband gave notice to the wife of his intention to declare a dividend as follows:The Directors of [D1 Pty Ltd] propose to pay a dividend of $50 million to its shareholder, the [Webster Family Trust], effective […] December 2023. The Trustee of the [Webster Family Trust] proposes to then distribute this in full to our client. This will provide our client with funds to pay out the mortgage on the [K Building] which has a current balance of about $28 million, and to provide him with funds to meet his other obligations as they arise. It will crystallise a liability of our client personally to pay top up tax of $12,113,524. The Directors of [D1 Pty Ltd] reserve their position as to further dividends being distributed to our client in the ordinary course of business.(emphasis added)(Affidavit of the Wife filed 20 June 2024, Exhibit MW-2-1)

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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