FAMILY COURT OF AUSTRALIA
| X PTY LTD AND ORS & MERHI | [2015] FamCA 622 |
| FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – Where a Registrar dismissed the objections of twelve third party companies to subpoenas issued by the wife – Where the companies and the husband sought a review of the Registrar’s decision – Whether the subpoenas lack relevance to the proceedings – Whether the subpoenas are a fishing expedition – Whether the subpoenas are an abuse of process – Four subpoenas set aside – Seven subpoenas varied – Written submissions to be filed as to costs including costs of compliance. |
| Anton & Malitsa (2009) FamCA 70 Hatton v Attorney General of the Commonwealth of Australia & Ors (2000) FLC 93-038 Macks v Tuck & Ors & QBE Insurance (Australia) (No. 4) [2007] SASC 255 National Employers’ Mutual General Association v Wand and Hill [1978] 1 NSWLR 372 Ryder & Lee [2009] FamCA 531 Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor [2011] FamCAFC 159 |
| Family Law Rules 2004 (Cth) r 15.26 |
| FIRST APPLICANT: | X Pty Ltd (ACN …) |
| SECOND APPLICANT: THIRD APPLICANT: FOURTH APPLICANT: FIFTH APPLICANT: SIXTH APPLICANT: SEVENTH APPLICANT: EIGHTH APPLICANT: NINTH APPLICANT: TENTH APPLICANT: ELEVENTH APPLICANT: TWELFTH APPLICANT: THIRTEENTH APPLICANT: | MerhiCo Finance Pty Ltd (ACN …) A Pty Ltd (ACN …) B Pty Ltd (ACN …) Merhi Brothers Pty Ltd (ACN …) Merhi Brothers Investments Pty Ltd (ACN …) Merhi Group Holding Company Pty Ltd (ACN …) C Pty Ltd(ACN …) D Pty Ltd (ACN …) Mr E Merhi Holdings Pty Ltd (ACN …) Merhi Bros Holding Pty Ltd (ACN …) F Pty Ltd (ACN …) Mr G Merhi |
| RESPONDENT: | Ms Merhi |
| FILE NUMBER: | SYC | 511 | of | 2014 |
| DATE DELIVERED: | 30 July 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 13 July 2015 |
REPRESENTATION
| COUNSEL FOR THE FIRST TO TWELFTH APPLICANTS: | Mr Lethbridge SC |
| SOLICITOR FOR THE FIRST TO TWELFTH APPLICANTS: | HWL Ebsworth |
| COUNSEL FOR THE THIRTEENTH APPLICANT: | Mr Millar |
| SOLICITOR FOR THE THIRTEENTH APPLICANT: | Sexton Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms Spain |
| SOLICITOR FOR THE RESPONDENT: | Neville & Hourn Legal |
Orders
The Court Orders That:
The subpoenas addressed to the following companies are set aside:
a)MerhiCo Finance Pty Ltd (ACN …);
b)Merhi Group Holding Company Pty Ltd (ACN …);
c)C Pty Ltd(ACN …); and
d)Merhi Bros Holdings Pty Ltd (ACN …).
The entirety of the Schedule to the subpoena addressed to X Pty Ltd is varied to read as follows:
1. In respect of X Pty Ltd (ACN …):
1.1 Documents including but not limited to bank statements, credit accounts, EFT transfers, cheques or cheque butts, book keeping records, emails, memoranda relating to or evidencing the provision of financial benefit, by way of Directors fee, dividend, income, or otherwise to Mr G Merhi born … 1965, for the period from 1 January 2009 to 22 December 2014.
The entirety of the Schedule to the subpoena addressed to A Pty Ltd is varied to read as follows:
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- Case
- [2015] FamCA 622
- Decision Date
CaseChat Overview and Summary
The court was required to determine which of the issued subpoenas should be set aside entirely and how the remaining subpoenas should be varied to ensure their scope was appropriate. Specifically, the court had to consider the relevance and breadth of the documents sought in relation to the provision of financial benefits to Mr G Merhi and the financial standing of the respondent companies.
McClelland J ordered that the subpoenas addressed to MerhiCo Finance Pty Ltd, Merhi Group Holding Company Pty Ltd, C Pty Ltd, and Merhi Bros Holdings Pty Ltd be set aside. However, the court varied the schedules of subpoenas issued to X Pty Ltd, A Pty Ltd, Merhi Brothers Pty Ltd, Merhi Bros Investments Pty Ltd, D Pty Ltd, B Pty Ltd, and Mr E Merhi Holdings Pty Ltd. These variations narrowed the scope of the documents to be produced, focusing on evidence of financial benefits to Mr G Merhi, specific financial statements, tax returns, and records relating to property valuations and the application of funds from property sales. The court also made orders regarding the production of documents, inspection by the wife upon execution of a confidentiality agreement, and directions for written submissions on costs.
Orders
Orders of the court
The Court Orders That:
1.
The subpoenas addressed to the following companies are set aside:
a) MerhiCo Finance Pty Ltd (ACN …);
b) Merhi Group Holding Company Pty Ltd (ACN …);
c) C Pty Ltd(ACN …); and
d) Merhi Bros Holdings Pty Ltd (ACN …).
2.
The entirety of the Schedule to the subpoena addressed to X Pty Ltd is varied to read as follows:
1. In respect of X Pty Ltd (ACN …):
1.1 Documents including but not limited to bank statements, credit accounts, EFT transfers, cheques or cheque butts, book keeping records, emails, memoranda relating to or evidencing the provision of financial benefit, by way of Directors fee, dividend, income, or otherwise to Mr G Merhi born … 1965, for the period from 1 January 2009 to 22 December 2014.
3.
The entirety of the Schedule to the subpoena addressed to A Pty Ltd is varied to read as follows:
1. In respect of A Pty Ltd (ACN …):
1.1 Documents including but not limited to bank statements, credit accounts, EFT transfers, cheques or cheque butts, book keeping records, emails, memoranda relating to or evidencing the provision of financial benefit, by way of Directors fee, dividend, income, or otherwise to Mr G Merhi born … 1965, for the period from 1 January 2009 to 22 December 20141.2 Financial statements including balance sheets and profit/loss statements for the period 1 January 2009 until 22 December 2014.
1.3 Tax returns for the period 1 January 2009 to 22 December 2014.
1.4 A statement of indebtedness as at 22 December 2014.”
4.
The entirety of the Schedule to the subpoena to Merhi Brothers Pty Ltd is varied to read as follows:
1. In respect of Merhi Brothers Pty Ltd (ACN …):
1.1 Documents including but not limited to bank statements, credit accounts, EFT transfers, cheques or cheque butts, book keeping records, emails, memoranda relating to or evidencing the provision of financial benefit, by way of Directors fee, dividend, income, or otherwise to Mr G Merhi born … 1965, for the period from 1 January 2009 to 22 December 2014.
5.
The entirety of the Schedule to the subpoena to Merhi Bros Investments Pty Ltd is varied as follows:
1. In respect of Merhi Bros Investments Pty Ltd (ACN …)
1.1 Documents including but not limited to bank statements, credit accounts, EFT transfers, cheques or cheque butts, book keeping records, emails, memoranda relating to or evidencing the provision of financial benefit, by way of Directors fee, dividend, income, or otherwise to Mr G Merhi born … 1965, for the period from 1 January 2009 to 22 December 2014.
1.2 Financial statements including balance sheets and profit/loss statements for the period 1 January 2009 until 22 December 2014.
1.3 Tax returns for the period 1 January 2009 to 22 December 2014.
1.4 A statement of indebtedness as at 22 December 2014.”
6.
Paragraph 8 only, of the Schedule to the subpoena addressed to D Pty Ltd (ACN 003 024 628) is varied as follows:
8. Any settlement statement or any other record of the application of funds to, or for the benefit of, Mr G Merhi from the sale of the Properties."
7.
Paragraph 8 only, of the Schedule to the subpoena addressed to B Pty Ltd (ACN 002 628 453) is varied as follows:
8. Any settlement statement or any other record of the application of funds to, or for the benefit of, Mr G Merhi from the sale of the Properties”
8.
Paragraph 5 only, of the Schedule to the subpoena to Mr E Merhi Holdings Pty Ltd (ACN …) is varied as follows:
5. Any expert valuation or any other record of which indicates or records the value of any real property owned by Mr E Merhi Holdings Pty Ltd that has been, or is occupied by, Mr G Merhi and/or Ms Merhi.
9.
The first, third, fifth, sixth, ninth and tenth Applicants are to produce the documents according to the schedules as varied by Orders 1 through to 7 above, by delivering those documents to the Sydney Registry of the Court no later than twenty-one (21) days from the date of this Order.
10.
The wife is granted access to inspect the documents produced upon execution of a confidentiality agreement, to be proposed by the solicitors for the Applicants in terms agreed by the solicitors for the wife
11.
Upon the wife's execution of the agreement referred to in Order 9 above, leave is granted to the parties and their legal representatives to inspect the produced documents.
The Court Directs That:
1.
The parties are to file and serve written submissions on the question of costs, including the cost of complying with the subpoenas, within fourteen (14) days of the date of this Order and for any reply to be filed and served within a further seven (7) days.
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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