Wilson and Wilson (No.2) - [2008] FamCA 903

FAMILY COURT OF AUSTRALIA

WILSON & WILSON (NO. 2)

[2008] FamCA 903

FAMILY LAW – INJUNCTIONS – Interim basis – Orders relating to preventing a person leaving Australia

Family Law Act 1975 (Cth)

Harris and Harris (1993) FLC 92-378; 16 Fam LR 579

APPLICANT:

Ms Wilson

RESPONDENT:

Mr Wilson

FILE NUMBER:

MLC

5009

2008

DATE DELIVERED:

15 October 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

15 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P.D. Sweeney

SOLICITOR FOR THE APPLICANT:

Marshalls & Dent

COUNSEL FOR THE RESPONDENT:

Mr P.A. Marchetti

SOLICITOR FOR THE RESPONDENT:

Lewenberg & Lewenberg

Orders

BY CONSENT

That by 3.00pm this day, the husband personally and in his capacity as a director of W Pty Ltd and M Nominees Pty Ltd do all acts and things and sign all documents necessary to irrevocably authorise, and direct, the Westpac Banking Corporation ("the Bank") and its officers and employees to forthwith provide to the wife's solicitors, Messrs. Marshalls & Dent
(a)All Letters of Offer in respect of any loan, overdraft, bill facility or any other facility from the Bank to W Pty Ltd from 1995 to date;
(b)All Loan Agreements, facility agreements and bill facility agreements between the Bank and W Pty Ltd from 1995 to date;
(c)All Letters of Acceptance by W Pty Ltd to the Bank in respect of any loan, overdraft, bill facility or any other facility from 1995 to date;
(d)All and any ancillary documents relating to items (a) – (c) above and inclusive, but not limited to :-
(i)Guarantees and Indemnities executed by M Nominees;
(ii)Surety consents executed by M Nominees or signed on its behalf;
(iii)Declarations, statutory or otherwise, provided to the Bank by either W Pty Ltd and/or M Nominees and/or the Directors of either company;
(iv)Securities granted by either W Pty Ltd and/or M Nominees.
(e)    Copies of any Minutes of any Board Meetings or Directors resolutions of either W Pty Ltd or M Nominees held by the bank in respect of any of the documents listed in item (a) – (d) above, inclusive;
(f)     Copies of any file notes kept by the Banks in respect of the items listed in item (a) – (e) above, inclusive;
(g)    Original Mortgage documents in support of any lending or borrowing facility of the Bank supported by Mortgage from M Nominees to the Bank in respect of W Pty Ltd, registered on Title to the real property situate at and known as T property in the State of Victoria, being the land more particularly described in Certificate Title Volume … Folio …, registered Mortgage number … and any Memorandum of Common Provisions relating to same.
That in the event of default by the husband discharging his obligations under Order 1 herein:-
(a)That pursuant to Section 106 A (1) of the Family Law Act 1975, the Registrar or a Deputy Registrar of the Family Court of Australia at Melbourne is appointed to execute all deeds and documents…

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 Wilson and Wilson (No.2)

Details

AGLC: Wilson and Wilson (No.2) [2008] FamCA 903
Case: [2008] FamCA 903
Decision Date: 15 October 2008

CaseChat Overview and Summary

This matter came before Cronin J concerning a dispute between a husband and wife. The primary issue revolved around the husband's obligation to provide financial disclosure to the wife, particularly concerning loan facilities and securities held by Westpac Banking Corporation involving companies in which the husband was a director. The court also addressed ancillary matters related to the husband's travel and dealings with property.

The court was required to determine the extent of financial information the husband, both personally and in his directorial capacities, was obliged to disclose to the wife's solicitors. This included specific categories of documents from Westpac Banking Corporation relating to loans, facilities, guarantees, securities, and board minutes concerning W Pty Ltd and M Nominees Pty Ltd. Additionally, the court considered orders to restrain the husband from departing Australia, encumbering property, and applying for a new passport, as well as the wife's application and the husband's response being dismissed.

By consent, the court ordered the husband to execute documents authorising Westpac Banking Corporation to provide extensive financial records to the wife's solicitors. In default, the Registrar was appointed to execute these documents. The husband was also ordered to provide details of a specific bank employee and to deliver his passport to the court, with further orders restraining him from leaving Australia and applying for a new passport. The husband was further restrained from dealing with any property without prior notice to the wife's solicitors. The wife's application and the husband's response were dismissed by the court.

Orders

Orders of the court

BY CONSENT

That by 3.00pm this day, the husband personally and in his capacity as a director of W Pty Ltd and M Nominees Pty Ltd do all acts and things and sign all documents necessary to irrevocably authorise, and direct, the Westpac Banking Corporation ("the Bank") and its officers and employees to forthwith provide to the wife's solicitors, Messrs. Marshalls & Dent

(a) All Letters of Offer in respect of any loan, overdraft, bill facility or any other facility from the Bank to W Pty Ltd from 1995 to date;

(b) All Loan Agreements, facility agreements and bill facility agreements between the Bank and W Pty Ltd from 1995 to date;

(c) All Letters of Acceptance by W Pty Ltd to the Bank in respect of any loan, overdraft, bill facility or any other facility from 1995 to date;

(d) All and any ancillary documents relating to items (a) – (c) above and inclusive, but not limited to :-

(i) Guarantees and Indemnities executed by M Nominees;

(ii) Surety consents executed by M Nominees or signed on its behalf;

(iii) Declarations, statutory or otherwise, provided to the Bank by either W Pty Ltd and/or M Nominees and/or the Directors of either company;

(iv) Securities granted by either W Pty Ltd and/or M Nominees.

(e) Copies of any Minutes of any Board Meetings or Directors resolutions of either W Pty Ltd or M Nominees held by the bank in respect of any of the documents listed in item (a) – (d) above, inclusive;

(f) Copies of any file notes kept by the Banks in respect of the items listed in item (a) – (e) above, inclusive;

(g) Original Mortgage documents in support of any lending or borrowing facility of the Bank supported by Mortgage from M Nominees to the Bank in respect of W Pty Ltd, registered on Title to the real property situate at and known as T property in the State of Victoria, being the land more particularly described in Certificate Title Volume … Folio …, registered Mortgage number … and any Memorandum of Common Provisions relating to same.

That in the event of default by the husband discharging his obligations under Order 1 herein:-

(a) That pursuant to Section 106 A (1) of the Family Law Act 1975, the Registrar or a Deputy Registrar of the Family Court of Australia at Melbourne is appointed to execute all deeds and documents in the name of the husband personally and in his capacity as a director of M Nominees and W Pty Ltd and to do all acts and things to give validity and operation to the said Order;

(b) The husband pay to the Solicitors for the wife within 14 days the costs of and incidental to the preparation and signing of the said Authority.

3. That by 3.00pm this day the husband provide in writing and deliver to the offices of the wife's solicitors Messrs. Marshalls & Dent full details including the name, position and address of the principal employee of the Bank who would be in a position to have access to all and any of the documents specified at Order 1 herein, AND THE COURT NOTES that the Husband advises that such person is Mr D, Westpac Bank, Melbourne.

BY THE COURT:

That within 48 hours the husband deliver to the Registrar or a Deputy Registrar of the Family Court of Australia at Melbourne any Passport issued in his name, to be held by the Court until further Order.

That until further Order the husband be and is hereby restrained from departing from the Commonwealth of Australia and it is further ordered that the Australian Federal Police place the name of the husband on the airport Watchlist enforced at all points of arrival and departure in the Commonwealth of Australia and maintain the husband’s name on the Watchlist until further Order.

That until further Order the husband be and is hereby restrained from applying to any authority, including an Australian authority, for a new Passport in his name.

That a sealed copy of these Orders be forthwith served on the Bank, and the relevant person to be advised by the husband in compliance with Order 3 herein (or in the absence of any compliance with paragraph 3 hereof then the Principal Legal Officer at the Bank) AND IT IS REQUESTED that the Bank and/or the relevant person make and provide the relevant documents available to the wife’s solicitors forthwith.

The husband personally and in any capacity as a Director or Shareholder of any company shall not encumber, sell, gift, deal with, alienate or dispose of any property including any property, assets (including shares) registered in the name of the husband, the wife or either of them or in the name of any company in which he holds shares or directorship or any trust of which he is appointor or trustee save upon 14 days prior notice to the wife's solicitors.

Within 14 days the wife provide to the husband's solicitors a list of chattels removed from the property at T since 25 June 2008.

10. That the husband pay the wife’s costs of and incidental to this Application fixed in the amount of $8,345.00, such payment to be stayed for one month.

11. That the wife's Application in a Case filed 8 October 2008 and the husband's Response filed this day be dismissed.

12. Certify for Counsel.

BY CONSENT

13. Within 48 hours the husband provide details of :

(a) the full address; and

(b) the registered proprietor;

of the real properties referred to in paragraph 25 of his Affidavit filed in these proceedings on 14 October 2008.

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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