Property – wife appointed co-director of corporate trustees to neutralise debate as to disclosure

In Hui & Bai [2021] FamCA 6 (20 January 2021) Hartnett J allowed a wife’s interim application to be made co-director of entities, of which the husband was sole director, which owned commercial buildings in its capacity as trustee.

One building was worth $45 million, encumbered by a $17 million mortgage; the wife also being party to a $46.5 million personal guarantee to the ANZ bank.

The husband had been sole director of the companies for 13 years. The wife sought to be made a co-director as she alleged the husband had not made full and frank disclosure and she contended the husband had entered into dealings without prior notice, which impacted upon her claim.

The court said (from [44]):

“ … [T]he respondent would be afforded necessary transparency if she were to be appointed as a co-director of the entities … the respondent will be able to have input into commercial decisions made by the applicant solely, or in conjunction with (the property manager) … that may directly impact the value to be attributed to the entities. The Court notes that the evidence before it … is that the appointment of the respondent as a co-director will have no adverse impact on the credit and guarantee structure of the existing facilities… The Respondent’s exposure as a guarantor to a significant sum … also makes the need for transparency to be more pressing…

[45] Full and frank disclosure is an ongoing obligation for each of the parties …. Significant disclosure has already been provided by the applicant to the respondent. (…) Now that the respondent’s position is enhanced by an order which shall see her appointed as a co-director of those of the parties’ entities … the debate as to what constitutes proper disclosure , and claim that it has been inadequate, should no longer be an issue. In those instances where matters remain outstanding as between the parties, they are required to act in accordance with their ongoing obligations.”

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson is the co-editor. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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