Wilkerson and Wilkerson and Ors

[2018] FCCA 3888

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILKERSON & WILKERSON & ORS [2018] FCCA 3888

Catchwords:
FAMILY LAW – Property – where the parties own two companies – company subject to administration – where the husband has hidden or dissipated marital funds – husband found to be in contempt of court.  

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS WILKERSON

First Respondent: MR WILKERSON

Second Respondent:  COMPANY A PTY LTD

Third Respondent:  COMPANY B PTY LTD

File Number: DNC 605 of 2018

Judgment of: Judge Young

Hearing date: 13 December 2018

Date of Last Submission: 13 December 2018

Delivered at: Darwin

Delivered on: 13 December 2018

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the 1^st Respondent: Mr Tiddy

Solicitors for the 1^st Respondent: Rockdene Lawyers

Counsel for the 2^nd Respondent: Mr Roper

Solicitors for the 2^nd Respondent: Ward Keller Lawyers

Counsel for the 3^rd Respondent: In person

Solicitors for the 3^rd Respondent: In person

ORDERS

1. That Orders 3 and 4 of the Orders made by this Court on 29 November 2018 are vacated.

2. That until further order of this Court or any other Court of competent jurisdiction presiding over any proceedings which may be initiated by the Administrator of the Second Respondent and save for any payment of monies held to the credit of the Second Respondent and to be made to the Administrator thereof:

   (a)the Third Respondent is hereby restrained from:

   (i)dealing with, disbursing, disposing and/or encumbering any assets other than in the ordinary course of business;

   (ii)withdrawing from or otherwise disbursing and/or encumbering any funds held in the Commonwealth Bank of Australia bank account number …(BSB …), held to the credit of the Third Respondent, save as provided for in orders 3(a) to (3(c) of the November Orders;

   (b)save as provided for in (a)(ii) above, the Respondent Husband is hereby restrained from:

   (i)dealing with, withdrawing funds from or otherwise disbursing and/or encumbering any monies held by the Commonwealth Bank of Australia (BSB …) in account number …, held to the credit of any of the parties to these proceedings;

   (ii)dealing with, withdrawing funds from or otherwise disbursing and/or encumbering any monies held by or in any other bank account in the Respondent Husband's name, or the Third Respondent's name, which are monies held by or received on behalf of the Second Respondent;

   (iii)purporting to deal with, disburse, dispose of and/or encumber any assets of the Second Respondent (including and without limitation by the use of any credit or debit cards linked to any account in which monies of the Second Defendant are held);

   (c)the Applicant Wife is hereby restrained from:

   (i)dealing with, withdrawing funds from or otherwise disbursing and/or encumbering the funds held with the Westpac Bank (BSB …) Account Number …, held to the credit of any of the parties to these proceedings with a disclosed balance of approximately $64,827.20 as at 30 November 2018;

   (ii)dealing with, disbursing, disposing and/or encumbering the motor vehicle NT Registration …;

   (iii)purporting to deal with, disburse, dispose of and/or encumber any assets of the Second Respondent (including and without limitation by the use of any credit or debit cards linked to any account in which monies of the Second Defendant are held).

3. Any surplus of funds in the administration of the Second Respondent and/or any resulting management under a Deed of Company Arrangement (DOCA) and/or any liquidation which may result from the subject administration, after the satisfaction of all accepted creditors and payment of the costs of the administration, DOCA and/or liquidation, are to be paid:

   (a)into this Court; or

   (b)otherwise as might be directed by the Applicant Wife and Respondent Husband jointly and in writing.

4. The Husband is restrained from opening any new accounts with any financial institution in his own name or on his behalf or in the name of Company B Pty Ltd.

5. The Respondent Husband is restrained from withdrawing any funds from any bank account held in his name personally, his name as a director of any company or in the name of any company of which he is an officeholder of any account including Company B Pty Ltd.

6. The Respondent Husband's Solicitors, Rockdene Lawyers, are restrained until further order from expending any money held in their trust account beyond fees properly incurred, and no more than $16,500 including GST.

7. The Respondent Husband's former Solicitors, Maley Barristers and Solicitors, are restrained from expending, disbursing or releasing any funds held in their trust account.

8. If the Respondent Husband's former Solicitors, Maley Barristers and Solicitors, wish to make an application in relation to Order 7, they have liberty to apply.

9. The Commonwealth Bank of Australia is to transfer all monies held in any account in the name of the Husband or Company B Pty Ltd to the trust account of Withnalls Lawyers within 14 days of service of this order upon the Commonwealth Bank of Australia.

10. The monies transferred to the trust account of Withnalls Lawyers in accordance with Order 9 are to held by Withnalls Lawyers for the Husband, Wife and Company A Pty Ltd and not to be disbursed until further Court order.

11. The Commonwealth Bank of Australia is to provide bank statements for all accounts in the name of the Husband or Company B Pty Ltd from 1 January 2018 to the date to Withnalls Lawyers within 14 days.

12. The Commonwealth Bank of Australia has liberty to apply to this Court within 7 days if it opposes or otherwise cannot comply with orders 9 and 11 of these Orders.

13. The Husband is restrained from disposing or, selling or otherwise encumbering any assets.

14. The Wife is to provide a copy of any documents which might be present on a Z Drive on a computer in the Wife's possession which relate to the following tender specifications for the Second Respondent:

    (a)The Inverts;

    (b)The Invert; and

    (c)The Culverts

15. The Wife’s costs of today are reserved.

16. The matter be otherwise adjourned to 6 February 2019 at 9:30am for further consideration.

    AND THE COURT NOTES:

    A. These proceedings are otherwise stayed against the Second Respondent pursuant to s440D of the Corporations Act 2001.

    B.   The Applicant Wife is permitted to retain and continue to drive the motor vehicle NT Registration …, until further order of this Court or any other Court of competent jurisdiction, provided she ensures that it is comprehensively insured and provides a Certificate of Currency to the Administrator of the Second Respondent within seven (7) days of the date of these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Wilkerson & Wilkerson & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 605 of 2018

MS WILKERSON

Applicant

And

MR WILKERSON

First Respondent

And

COMPANY A PTY LTD

Second Respondent

And

COMPANY B PTY LTD

Third Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a continuation of an application heard before me on 29 November 2018 where I made injunctive orders against the husband, Mr Wilkerson, and two companies that are owned by the parties: Company A Pty Ltd, and Company B Pty Ltd.  Counsel for the husband told me on that date in the presence of the husband that the sum of $890,000 was held in an account of Company B Pty Ltd. 

3. The application today has unfolded in the following circumstances. The husband appointed an administrator of Company A Pty Ltd following those orders and the appointment of the administrator has not been challenged today.  So Company A Pty Ltd is subject to administration.  The administrator has made an application in the case, essentially, to seek injunctive or freezing orders over the assets of the company A Pty Ltd and Company B Pty Ltd.

4. The administrator’s affidavit refers to a conversation with Mr Wilkerson about certain of the assets and, most concerningly, in relation to the cash that was said to be held in the Company B Pty Ltd account.  Mr Wilkerson told the administrator on inquiry that the money had been hidden. He said it was there to “Fight the government to save the money”, and “I have taken it out and hidden it”.  The administrator said, “Is the money safe?” Mr Wilkerson, according to the administrator’s evidence said, “If you call a tin in the backyard safe, it’s fairly safe”.

5. I directed Mr Wilkerson to give evidence about that matter today and he went to the witness box and he was sworn or affirmed.  After a direction from me to answer, he refused to say where that money was.  He did tell me that when his counsel had told me that the $890,000 remained in a Company B Pty Ltd account he knew that what his counsel was saying to me was untrue.  As I said, he then refused to answer any questions about what had become of that money. 

6. I warned Mr Wilkerson that I considered his refusal to answer questions about that money to be a contempt of a court.  I propose to take steps to deal with that.  I mention that because I am satisfied that Mr Wilkerson, for whatever reason, is displaying contempt or contumelious disregard for this court and its processes and that wide-ranging injunctions are necessary at this stage to prevent Mr Wilkerson disposing of or dissipating any of the matrimonial assets.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 7 January 2019