SQ v TQ
| Jurisdiction | Ireland |
| Judge | Mr. Justice Keane |
| Judgment Date | 06 June 2014 |
| Neutral Citation | [2014] IEHC 389 |
| Court | High Court |
| Docket Number | [2012 No. 46M] |
| Date | 06 June 2014 |
[2014] IEHC 389
THE HIGH COURT
BETWEEN
AND
FAMILY LAW ACT 1995 S16
FAMILY LAW ACT 1995 S16(2)(A)
FAMILY LAW ACT 1995 S38(7)
FAMILY LAW ACT 1995 S38(8)
RSC O.70A r6
RSC O.70A r6(4)
W (AM) v W (S) UNREP ABBOTT 18.4.2008 2008/60/12595 2008 IEHC 452
CONSTITUTION ART 41
PREST v PETRODEL RESOURCES LTD & ORS 2013 2 AC 415 2013 3 WLR 1 2013 4 AER 673 2013 UKSC 34
FAMILY LAW ACT 1995 S8
FAMILY LAW ACT 1995 S9
MATRIMONIAL CAUSES ACT 1973 S24 (UK)
FAMILY LAW ACT 1995 S9(1)(A)
KEANE COMPANY LAW 4ED 2007 145
FYFFES PLC v DCC PLC & ORS 2009 2 IR 417
RSC O.31 r12
THEMA INTERNATIONAL FUND PLC v HSBC INSTITUTIONAL TRUST SERVICES (IRL) LTD UNREP SUPREME 25.1.2013 2013/50/14157 2013 IESC 3
JOHNSTON v CHURCH OF SCIENTOLOGY MISSION OF DUBLIN LTD & ORS 2001 1 IR 682
BULA LTD (IN RECEIVERSHIP) & ORS v TARA MINES & ORS (NO 5) 1994 1 IR 487
QUINLIVAN v CONROY & SREENAN 1999 1 IR 271
RSC O.31 r12(1)
NORTHERN BANK FINANCE CORP LTD v CHARLTON & SHEEHY 1979 IR 149
YATES v CIBA GEIGY AGRO LTD UNREP BARRON 29.4.1986 1986/8/1947
LONRHO LTD & ANOR v SHELL PETROLEUM CO LTD & ANOR 1980 1 WLR 627
HOWARD TRADING AUCKLAND LTD & HOWARD PROPERTY LTD v NISSAN NEW ZEALAND LTD UNREP VENNING 16.3.2010 2010 NZHC 401
HIGH COURT RULES r1.3(1) (NZ)
JUDICATURE ACT 1908 (NZ)
INVERNESS MEDICAL SWITZERLAND GMBH v MDS DIAGNOSTICS LTD UNREP POTTER 21.12.2007 2007 NZHC 1547
SABRE CORP PTY LTD v RUSS KALVINS HAIR CARE CO & ORS 124 ALR 400 1993 FCA 557
FEDERAL COURT OF AUSTRALIA ACT 1976 S23 (AUSTRALIA)
GAMBRO PTY LTD & GAMBRO LUNDIA AB v FRESENIUS MEDICAL CARE AUSTRALIA PTY LTD UNREP 10.5.2002 2002 FCA 581
UNILEVER PLC v CHEFARO PROPRIETARIES LTD 1994 FSR 135
Judicial Separation – Matrimonial Proceedings – Ancillary Relief – Particulars of his Income and Property – Separate Legal Entity – Shareholder – Company Assets – Availability of Information
The facts of this case involved judicial separation proceedings and considered the scope and limits of the High Court to order one of the spouses in matrimonial proceedings to provide information to the other spouse and to the court, concerning the financial circumstances of a company in which the former holds a majority shareholding. The wife (Applicant) sought from the husband certain documents and information deemed necessary to assess the significance of the husband"s extensive financial transactions with the company. The husband claimed that all the necessary information required to determine his valuation in the company"s shares had been provided to the elected firm of accountants and refused to provide the documentation and information sought on the ground that he is neither prepared nor in a position to provide information pertaining to the company, its operation, its management or its accounts. The issue came before Keane J. in the High Court.
The applicant wife relied on section 38 of the Family Law Act 1995, to support her application, in response the Husband submitted that the company is a separate legal entity from the himself and as per, Thema International Fund plc v. HSBC Institutional Trust Services (Ireland) Limited [2013] IESC 3, the Husband has no power or authority to furnish such information. Keane J considered the submissions of the parties and decided that the court had the obligation to inquire into the relevant matters in the case and the parties have an obligation to provide the Court with all necessary information required to make a judgment. Keane J. stated that these obligations go significantly further than they would in respect of the question of discovery in adversarial litigation generally. In regards to the husband"s authority to tender such information Keane J. declared that, having regard to the relationship between the husband with the company and there being no evidence of an equivalent level of co-operation to the forensic accountants retained on behalf of his wife for the same purpose the information requested could be obtained for the asking and should as being available to the defendant if requested. Keane J. continued, stating that the application brought by the wife is not strictly an application for discovery at all, as has been suggested. It is rather an application for an order to give the Applicant Wife and dependents ancillary relief. Distinguishing the Thema International Fund from the current case based on jurisdiction, Keane J. ordered the husband to furnish to the wife the particulars of his property and income that are set out in the schedule to the wife"s notice of motion.
JUDGMENT of Mr. Justice Keane delivered on the 6th June 2014
1. What is the scope, and what are the limits, of the power of the High Court to order one of the spouses in matrimonial proceedings to provide information or documentation to the other spouse (and to the court) concerning the financial circumstances of a company in which the former holds a majority shareholding? That is the fundamental question raised by the present application.
2. The application arises in the context of judicial separation proceedings between the parties. They were married in 2002. There were three children of the marriage but, sadly, one child passed away a number of years ago. The wife is entirely financially dependent on her husband.
3. In addition to a decree of judicial separation, the wife seeks various ancillary orders that attract the provisions of s. 16 of the Family Law Act 1995 ("the 1995 Act"), whereby the court must endeavour to ensure that proper provision is made for each spouse and any dependent family member having regard to all the circumstances of the case. Under s. 16(2)(a) of the 1995 Act, in considering the orders necessary to effect proper provision, the court is required to have regard to, amongst other matters, the "property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future."
4. The husband has a controlling interest in a particular group of companies. He was director and chief executive of the parent company when the present litigation commenced by Special Summons issued on the 15 th November 2012. He has since averred that, while he remains a director, he ceased to be chief executive on the 31 st December 2013, shortly before the issue of the present motion on the 14 th February 2014. The group of companies employs over 500 people and operates a distribution network across the globe. The parent company is a privately owned one, registered in the State.
5. The husband holds more than 90% of the shares in the parent company. Two other directors own the remainder. The husband's affidavit of means, sworn on the 14 th of March 2013, values his shareholding at US$5,000,000.
6. Subsequent to swearing that affidavit, the husband obtained a report from a firm of chartered accountants on the value of his shareholding in the company. That report is dated the 14 th June 2013. It values the husband's shareholding at between €7,663,839 and €9,196,793 as at the 31 st May 2013. In light of the arguments that have been advanced on behalf of the husband and which are addressed below, it is pertinent to note that the said valuation report appends the accountants' letter of engagement, dated the 31 st May 2013. While that letter notes that the relevant report is required for the purpose of legal proceedings between the husband and the wife, it does not acknowledge any distinction between the husband thus acting in his purely personal capacity and the husband acting in his role as an officer of the company. Indeed, the letter of engagement is not addressed to the husband at all but to another director of the company at the company's premises. The letter records that the accountants concerned would be relying, inter alia, on such information and explanations from the company's directors as those accountants deemed necessary to carry out that valuation. The valuation report refers to discussions that the accountants had with the husband and with another identified director of the company for the purpose of its preparation. Nothing in the report suggests or reflects any expressed concern on the part of the company or on the part of the husband that, in providing information and explanations for the purpose of the preparation of a valuation of the company to be used by the husband in his personal capacity in these proceedings, the directors (including the husband) risked breaching their fiduciary duty to the company or that they were thereby improperly disregarding the fact that the company has a legal personality quite separate from that of the husband.
7. The wife avers that, when the parties' former family home was sold some years ago, the husband paid over the substantial proceeds of sale to the company as a loan. The parties then moved into a family home that was owned by the company and in respect of which the husband paid rent to the company. More recently, the wife has moved into another property in the jurisdiction that has been purchased in the joint names of the parties and the husband has borrowed a substantial sum from the company to purchase a home in the location abroad where he now lives and works. While these transactions, insofar as they have been properly accounted for, do not support the wife's assertion that the husband has intermingled his own monies with those of the company, they do suggest that an examination of them, and of any similar transactions, may be necessary to properly assess the property and financial resources of the husband.
8. The wife sought detailed...
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C (S) v B (J)
...documents are within the power and procurement of the respondent. In support of this proposition, the applicant relies on S.Q v. T.Q [2015] 1 I.L.R.M.60. In this case, the applicant sought relief under s.38(8) of the Family Law Act 1995 and Order 70A, rule 6(4) of the Rules of the Superior ......