WIGHTMAN & WIGHTMAN - [2015] FamCA 628

FAMILY COURT OF AUSTRALIA

WIGHTMAN & WIGHTMAN

[2015] FamCA 628

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Injunctions – Where consent orders were entered into joining the husband’s mother and a family company as parties to the proceedings – Where the parties agree injunctions are necessary to preserve the matrimonial property pending final hearing – Where the parties cannot agree as to their form – Orders made – Remainder of the application adjourned to a future date.

In the Marriage of Martinellio (1981) FLC 91-050
Sieling and Sieling (1979) FLC 90-627

Family Law Act 1975 (Cth) s 114

APPLICANT:

Ms Wightman

RESPONDENT:

Mr Wightman

FILE NUMBER:

SYC

1693

2015

DATE DELIVERED:

30 July 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

13 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Auld

SOLICITOR FOR THE APPLICANT:

Delaney Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Kennedy

SOLICITOR FOR THE RESPONDENT:

Sexton Family Law

The Court orders that:

Pursuant to section 90AF of the Family Law Act 1975 (Cth), the following entities (“the Companies”) be joined as a party to these proceedings:
a.         A Pty Ltd ACN …;
b.         B Pty Ltd ACN …;
c.         C Pty Ltd ACN …;
d.         D Pty Ltd ACN …;
e.         E Pty Ltd ACN …;
f.          F Pty Ltd ACN …;
g.         G Pty Ltd ACN …; and
h.         H Pty Ltd ACN ….

The Court orders, pending further order, that:

The husband is restrained in his capacity as Director and/or shareholder by injunction from selling, transferring, assigning, encumbering or alienating his shares and/or interest of any nature in the Companies whatsoever, and/or appointing any directors or otherwise acting in such a way as to cause the reduction in the value of the assets of any of the Companies, except in the ordinary course of business or with the wife’s written consent which shall not be unreasonably withheld.
Each of the Companies, by themselves, their servants and agents are hereby restrained from selling, transferring, assigning, encumbering or alienating any of its assets or otherwise acting in such a way as to cause the reduction in the value of the assets of the Companies, except in the ordinary course of business or with the wife’s written consent which shall not be unreasonably withheld.
The husband is hereby restrained from selling, transferring, assigning, encumbering, or alienating any interest (including where that interest is not beneficially held) in any asset in which the husband has personally or in his capacity as Director and/or shareholder in any company in which he has an interest, or otherwise acting in such a way as to cause the reduction in the value of such assets, without giving the wife not less than ten (10) days’ notice in writing of his intention to do so, except in the ordinary course of business or with the wife’s written consent which shall not be unreasonably withheld.
The husband and/or the second respondent and/or their nominee are hereby restrained from…

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.

Continue reading WIGHTMAN & WIGHTMAN

Details

AGLC: WIGHTMAN & WIGHTMAN [2015] FamCA 628
Case: [2015] FamCA 628
Decision Date: 30 July 2015

CaseChat Overview and Summary

This matter concerned an application by the wife to join several companies as parties to proceedings and to impose injunctions upon the husband and these companies. The dispute arose within the context of family law proceedings, with the wife seeking to preserve assets that might be subject to division. The application was heard by McClelland J in the Family Court of Australia.

The court was required to determine whether to join eight specific companies as parties to the proceedings and, if so, what injunctive relief should be granted to restrain the husband and these companies from dealing with their assets. The wife sought to prevent the dissipation or encumbration of assets held by the husband personally, through his directorships or shareholdings in the companies, and through various trusts and superannuation funds.

McClelland J applied section 90AF of the *Family Law Act 1975* (Cth) to permit the joinder of the companies. The court then granted extensive injunctive relief, restraining the husband and the companies from selling, transferring, assigning, encumbering, or otherwise alienating shares, interests, or assets, except in the ordinary course of business or with the wife's consent, which was not to be unreasonably withheld. Further injunctions were imposed to prevent the husband from appointing new directors, issuing shares, making loans, or altering bank signatories without consent. The court also restrained the companies from exercising their powers as trustees of various trusts to alter trust deeds or distribute assets, and similarly restrained the husband from acting as an appointor of trusts or superannuation funds. Specific orders were made regarding the sale of certain companies and the handling of proceeds, as well as the disposal of motor vehicles and the removal of contents from specified properties and storage facilities. The husband was also ordered to provide quarterly accounts for the companies and trusts and to provide notice before taking out new loans.

Orders

Orders of the court

Pursuant to section 90AF of the Family Law Act 1975 (Cth), the following entities (“the Companies”) be joined as a party to these proceedings:

a. A Pty Ltd ACN …;

b. B Pty Ltd ACN …;

c. C Pty Ltd ACN …;

d. D Pty Ltd ACN …;

e. E Pty Ltd ACN …;

f. F Pty Ltd ACN …;

g. G Pty Ltd ACN …; and

h. H Pty Ltd ACN ….

The Court orders, pending further order, that:

The husband is restrained in his capacity as Director and/or shareholder by injunction from selling, transferring, assigning, encumbering or alienating his shares and/or interest of any nature in the Companies whatsoever, and/or appointing any directors or otherwise acting in such a way as to cause the reduction in the value of the assets of any of the Companies, except in the ordinary course of business or with the wife’s written consent which shall not be unreasonably withheld.

Each of the Companies, by themselves, their servants and agents are hereby restrained from selling, transferring, assigning, encumbering or alienating any of its assets or otherwise acting in such a way as to cause the reduction in the value of the assets of the Companies, except in the ordinary course of business or with the wife’s written consent which shall not be unreasonably withheld.

The husband is hereby restrained from selling, transferring, assigning, encumbering, or alienating any interest (including where that interest is not beneficially held) in any asset in which the husband has personally or in his capacity as Director and/or shareholder in any company in which he has an interest, or otherwise acting in such a way as to cause the reduction in the value of such assets, without giving the wife not less than ten (10) days’ notice in writing of his intention to do so, except in the ordinary course of business or with the wife’s written consent which shall not be unreasonably withheld.

The husband and/or the second respondent and/or their nominee are hereby restrained from calling for the holding of, or from attending and voting at, any meeting of any the Companies whereby it is sought to do any of the following:

a. To issue any further shares in the any of the Companies;

b. To appoint any further directors to any of the Companies, or to appoint any additional or alternate Secretary for any of the Companies;

c. To make any loan or advance to any other person or other company or entity,

d. To guarantee any loan or contractual advance to any other person or entity;

e. To alter or vary the signatories to the bank accounts of the Companies; and

f. To enter into any contract, agreement, instrument or other document, affecting the matrimonial assets and/or the assets of the companies and/or trusts identified herein;

except in the ordinary course of business or with the wife’s written consent which shall not be unreasonably withheld.

Each of the Companies, their servants and agents are restrained from exercising their powers as Trustee for any of the Trusts detailed below (collectively referred to as “the Trusts”), to alter the Trust Deed or pass any resolution to distribute, sell, transfer, assign, encumber, or alienate any assets of the relevant Trust, other than distributions of net income of the Trust estate in the usual manner and then only after notice to the wife (with full details of the intended distribution) which is to be given at least seven (7) days before the date of the intended resolution to make a distribution:

a. Wightman Family Trust;

b. B Unit Trust;

c. I Unit Trust;

d. J Unit Trust;

e. K Unit Trust; and

f. E Unit Trust.

The husband is hereby restrained in his capacity as appointor of any of the Trusts, or the A Pty Ltd Superannuation Fund, from appointing a new Trustee in place of the existing Trustee, except with the prior written consent of the wife which shall not be unreasonably withheld.

A Pty Limited, by itself, its servants and agents be and is restrained from exercising its powers as Trustee of A Pty Ltd Superannuation Fund (“the A Super Fund”) to alter the Trust Deed of the A Super Fund or pass any resolution altering the beneficiaries of the A Super Fund or pass any resolutions to distribute, sell, transfer, assign, encumber, or alienate any interest in the Wightman Super Fund, except with the prior written consent of the wife which shall not be unreasonably withheld.

The husband is restrained from withdrawing or disposing of or encumbering in any way the funds held in any bank accounts held in the name of any of the Companies or any of the Trusts without the wife’s prior written consent which shall not be unreasonably withheld.

10. The husband is restrained from taking out any further loans from existing financiers or obtaining new or additional borrowings from any other source, without first obtaining the wife’s written consent, but subject to the following:

a. The period within which the wife is to provide or decline her consent is three (3) working days from the date upon which the request is made by the husband to the wife (defined as the first day if the request is made prior to 5.00 pm failing which the next working day is deemed to be the first day and where the third working day is defined to conclude at 5.00 pm):

b. The husband is to make full and frank disclosure of the basis for the proposed borrowing and the intended application of those funds at least ten (10) days prior to any request being made to the wife by the husband.

11. The husband in his personal capacity, or as Director or Trustee of any company or Trust respectively, that owns the motor vehicles identified below, is hereby restrained from selling, mortgaging, assigning, alienating or encumbering the following motor vehicles except with the prior written consent of the wife which shall not be unreasonably withheld:

a. Japanese motor vehicle (2004) registration number …;

b. European motor vehicle registration number …; or

c. 4WD motor vehicle registration number ….

12. The husband and the wife are restrained from removing any furniture, valuables, including any coin collection, jewellery, objects d’art, utensils or contents of any nature whatsoever, from the property known as L Street, Suburb M, NSW.

13. The husband and the wife are restrained from removing any paperwork, valuables, including any coin collection memorabilia, furniture, objects, d’art, utensils or contents of any nature, from any storage facility held in the husband’s or wife’s name or any entity associated with the husband or the wife, including the three (3) storage facilities at N Storage.

14. The husband and the wife are restrained from removing any bottles of wine stored at any wine storage facility in the husband’s or wife’s name or the name of any entity associated with the husband or the wife, including any wine stored at O Wine Storage.

15. The husband is to provide or cause the financial controller of the Companies and the Trusts to provide the wife with quarterly accounts and/or quarterly BAS statements of those entities.

16. All monies received or receivable by C Pty Ltd as Trustee for the I Unit Trust and/or D Pty Ltd as Trustee for the J Trust Unit Trust, pursuant to the sale of P Pty Ltd by Q Pty Ltd be placed in a separate bank account, the details of which are to be provided to the wife, and not to be drawn on without the wife’s prior written consent which shall not be unreasonably withheld.

17. All monies received or receivable by any of the Companies and/or any of the Trusts pursuant to the sale of all or any of R Pty Ltd (formerly S Pty Ltd), N Pty Ltd (formerly U Pty Ltd), V Pty Ltd (formerly W Pty Ltd) and X Pty Ltd (formerly Y Pty Ltd) collectively referred to as (the “Z Group”), be placed in a separate bank account, the details of which are to be provided to the wife and not to be drawn on without the wife’s prior written consent which shall not be unreasonably withheld.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.