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10 September 2018

I am currently going through family circuit court proceedings in regards to children's matters and property settlement. My ex and I were together since 2005 and have incorporated his sole trader business to a PTY LTD in Nov 2005. I am currently still company secretary and 50% shareholder. Negotiations about settlement have been ongoing since separation which occurred in June 17.

I had a spousal maintenance hearing 31 August 18, where I was unable to attend via phone (same with previous hearing...)

So I was basically absent as a party due to no fault by myself. I ordered a transcript to find out what happened.

My ex claims that in order for him to get a mortgage on the matrimonial home to pay me out, I have to resign as secretary and relinquish my shares, which he would buy back for $50. I cannot find anything legal in this regard and he is not forthcoming with documentation from the bank that spells out the requirement in order to obtain the loan.

If I do resign and relinquish my shares, where do I stand in regards to further (or any) claims on my entitlements and super currently still outstanding?

Brief Background:

In relationship since 2005. Incorporation 2005. I am secretary with ASIC since 2007. Married 2008. 2008, I had child 1. 2010, I had child 2. June 2017 was out separation.

Between June and Dec 2017, I was still required to work for the company. While I was under a salaried contract, I had to provide a timesheet to the director (ex) for sign off. Hours were constantly disputed and my pays diminished to nothing in December. I was denied sick leave for our son with whom I spent 2 days in emergency. I never had maternity leave and had accrued significant entitlements which have now been written out of the accounts. In December 17 my Ex threw me out of the matrimonial home, which is also the business address, and changed the locks. I had no means of continuing my work.

As he wouldn't sign paperwork for Centrelink, I was basically without income until Feb 18 with 2 kids. His lawyer claims that I have deserted and abandoned my employment and am not entitled to anything. The company has 4 vehicles, had a contract for $360.000 FY 17/18. 2017 last quarter BAS was changed in May this year from income of $212 to $238.000. The company ran at a loss of $134.000 16/17 FY. He claims all money has been expended. I have a balance sheet from April this year where there is a directors loan of $100.000 And MYOB pays for this financial year total $183.000 for himself and his new partner.

We previously agreed that I get a dividend of $30.000 in June 18 and be paid on $50.000 for last FY. I have stuck by our agreement but was basically forced out of the house and business.

We attended a conciliation conference in May this year and I provided all my info on time. He submitted 2 pay slips, outdated balance sheet and a valuation of the house of $40.000 less than agreed the night before the conference. I relented after advise of the registrar and agreed to a pay out of $150.000 for house, 30.000 for dividend and $20.000 in lieu of vehicle.

I have repeatedly requested statements from the last financial year for the business through our accountant, nothing. The 16/17 FY tax return is flawed.

Where do I stand? Do I have any rights left in regards to the company if I resign from ASIC? I have neither resigned my position nor have been terminated in writing.

I don't want to be unreasonable or vindictive, but I have worked in the business 13 years and have managed all contracts, staff and affairs singlehandedly with 2 kids while my Ex was remote for most of the year... I had at times 15 staff. It's not like I didn't do my fair share.

Sorry for the long post... thanks for any help!


Well-Known Member
28 May 2018
This is quite a complex situation and I can only give an opinion on the information in your post, so take it with a pinch of salt. Generally speaking, the fact you sold your shares in a business will not impact your entitlements as an employee. I am also unsure as to why your shares would impact his mortgage, a co-director might be an issue, but a shareholder shouldn't be a problem. If I were you I would hang on to them, there may be a reason they are trying to buy you out that isn't clear from the information you have provided. All your employee entitlements can be pursued through Fairwork or similar tribunal if you were an employee. The timeframe between these issues might be a problem though, I believe there is a limitation, cannot recall what it is.


10 September 2018
Thank you for your reply, I really appreciate it. I contacted Fair work in June this year and they couldn't help much, contact the employer.... ASIC said it's an internal dispute, nothing to do with them... It's like pulling teeth. Anyway, I contacted our bank a number of times... and after quite some Time, rephrasing the question, I have now in writing that there is no such requirement as to sign over the company so he can get the loan. This was fabricated... and accepted as fact by both lawyers... I mean... first advise given is always: "seek legal advice"... but if it's apparent that my lawyer doesn't know... and if I sign everything over in good faith... Well.. . Where does that leave me? "Ah Yes, sorry bout that... oh well... "

I did sign the discharge form but not the company forms. I haven't heard back from anyone... Got to wait and see if they do get me for breach.

Thanks again and have a good weekend.