Wray and Wray and Anor

[2015] FamCA 54

FAMILY COURT OF AUSTRALIA

WRAY & WRAY AND ANOR [2015] FamCA 54

FAMILY LAW – PROPERTY – Injunctions – Where application for urgent ex parte injunctions restraining the disposition of funds under the husband’s control pending determination of the parties’ property entitlements – Where appropriate to grant leave for the application to proceed ex parte – Where a risk exists that funds may be dissipated or disposed of by the husband – Where appropriate for an injunction to be granted securing funds under the husband’s control pending further order.

Family Law Act 1975 (Cth) s 114
APPLICANT:	Ms Wray

FIRST RESPONDENT:

SECOND RESPONDENT:

Mr Wray

Wray Pty Ltd

FILE NUMBER: SYC 520 of 2015

DATE DELIVERED: 3 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Foster J

HEARING DATE: 3 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Barkus Doolan

Orders

1. The Applicant Wife is granted leave to make application to the Court on an urgent ex parte basis without notification to the Respondent Husband.

2. Pending further Order the Husband, in his capacity as director and shareholder of Wray Pty Ltd (ACN …), be restrained by injunction from selling, transferring, assigning, encumbering, diluting and/or alienating any of his shares in the company known as Wray Pty Ltd.

3. Pending further Order the Husband, in his capacity as director and shareholder of Wray Pty Ltd, is restrained by injunction from doing any act or thing, including passing resolutions, to:

   (3.1)resign as a director and secretary of Wray Pty Ltd;

   (3.2)cause for any other person to be appointed as a director of Wray Pty Ltd;

   (3.3)cause for any further shares in Wray Pty Ltd to be issued;

   (3.4)repay to the Husband any monies owing to the Husband by way of loan; and

   (3.5)declare any dividend to shareholders, or to pay monies to shareholders.

4. Pending further Order the Husband is restrained in his personal capacity and in his capacity as a director of Wray Pty Ltd from withdrawing, expending, transferring, and/or transacting upon any or all of the funds standing to its credit in the following bank accounts held in the name of Wray Pty Ltd:

   (4.1)ING Direct Account No. 923-100 83241484;

   (4.2)RaboDirect Premium Saver account with Rabobank Australia Ltd, Account No. …10;

   (4.3)RaboDirect 31 Day Notice account with Rabobank Australia Ltd, Account No. …21;

   (4.4)RaboDirect 60 Day Notice account with Rabobank Australia Ltd, Account No. …22;

   (4.5)RaboDirect 90 Day Notice account with Rabobank Australia Ltd, Account No. …23; and

   (4.6)RaboDirect online account with Rabobank Australia Ltd, Account No. …00.

5. The Wife be at liberty to provide a copy of these Orders to RaboDirect (a division of Rabobank Australia Limited) and to ING Bank Ltd and request that each bank assist in the implementation of these Orders.

6. The matter is adjourned to the duty list on Monday 9 February 2015 at 9:30am.

7. A sealed copy of the Initiating Application, Financial Statement, affidavit in support and a sealed copy of orders made today be served upon the Respondent Husband Mr Wray initially by email communication by no later than 5:00pm on 4 February 2015.

8. A sealed copy of the orders made today be served upon RaboDirect (a division of Radobank Australia Ltd) and ING Bank Ltd as soon as practicable by facsimile communication by no later than 5:00pm on 4 February 2015.

9. The costs of the Wife in relation to the proceedings today are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wray & Wray and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 520 of 2015

Ms Wray

Applicant

And

Mr Wray

First Respondent

And

Wray Pty Ltd
Second Respondent

REASONS FOR JUDGMENT

1. The application before the court today is an ex parte application made on behalf of the applicant wife, Ms Wray, by application filed on 2 February 2015 seeking final orders as to property settlement.

2. In final orders sought by her she seeks orders in relation to division of matrimonial property and certain restraining orders in relation to significant funds held by the husband in his company Wray Pty Ltd, in respect of which he is the sole director and shareholder.

3. The interim orders sought in the application seek leave to proceed on an urgent ex parte basis and for reasons that will be set out hereinafter the court is satisfied that it is appropriate that proceedings proceed today on an urgent ex parte basis without notice to the husband. 

4. The wife seeks orders that pending further order:

   a)The husband in his capacity as director and shareholder of Wray Pty Ltd be restrained by injunction from selling, transferring, assigning, encumbering, diluting or alienating any of his shares in the company;

   b)The husband in his capacity as director of Wray Pty Ltd be restrained by injunction from doing any act or thing, including passing resolutions to resign as a director or secretary, cause any other person to be appointed as a director, cause any further shares to be issued, repay to the husband any monies owing to him by way of loan other than in compliance with orders that may be made, or to clear a dividend to shareholders or pay money to shareholders other than in accordance with orders to be made herein;

   c)Restraining the husband in his personal capacity and his capacity as a director of Wray Pty Ltd from withdrawing, expending, transferring or transacting upon any or all of the funds standing to its credit in certain bank accounts in the name of Wray Pty Ltd.

5. The wife also seeks to be at liberty to provide a copy of these orders to RaboDirect, a division of Rabobank Australia Limited and ING Bank Limited, who are the primary holders of those accounts. 

6. In the circumstances of this application, notice to the bank is appropriate and affords to the banks natural justice in relation to the orders to be made that restrain the husband from dealing with those bank accounts.

7. Otherwise the wife sought in her interim orders an order that funds be withdrawn from Wray Pty Ltd and effectively be paid into a joint controlled monies account.  In the circumstances of the monies being held within a corporate entity, the court is not satisfied that such an order should be made, having no notice as to the tax or other ramifications of such a withdrawal from the company.

8. The history of the relationship is reasonably brief. 

9. The wife was born in 1976 and she is 38 years of age.  The husband is 35 years of age. 

10. They commenced cohabitation in October 2005 and married in December 2006.  They separated on 5 February 2014 and cohabitation was for a period of just over eight years. 

11. There is one child of the relationship, L, born in 2013, and L is now about 18 months of age.  The child lives primarily with the wife and the husband/father spends at best limited or virtually no time with the child, for reasons more particularly set out in the wife’s affidavit in support of her application.

12. The wife in her affidavit gives evidence as to the background of Wray Pty Ltd and the sources of her knowledge as to what she perceives to be significant funds standing to the credit of bank accounts in the name of the company. The parties, apart from funds in Wray Pty Ltd, have some other matrimonial assets but no real estate, and in reality, apart from their superannuation, funds to the credit of Wray Pty Ltd represent a primary asset in the hands of the husband. 

13. It appears that they are categorised by him as simply a loan to the company and represent a debt by the company to him at call.

14. Documents produced by the wife in her affidavit indicate that regular payments of about $4,500 are transferred from the company to the husband’s personal account, appearing to be repayments of this particular loan account.  For reasons set out in the wife’s affidavit, she has significant reason to fear the dissipation of these funds by the husband. 

15. There is no doubt that the court has power to grant injunctions in the context of proceedings such as these, that power arising under section 114 of the Act.

16. In circumstances where there is an objective fear on the basis of the wife’s affidavit of funds being dissipated by the husband, where the matter can come back before the court urgently, within a week or so in a duty list before a judge of this court and where orders sought by the wife simply preserve an existing position for a short period of time until such time as the husband can make such application as he may be advised, the court is satisfied that the wife should be granted leave to make application on an urgent ex parte basis and the court makes the orders as set out at the forefront of these reasons.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 February 2015.

Associate: 

Date:  3 February 2015