Cao & Hong (No 2) - [2018] FamCA 788

FAMILY COURT OF AUSTRALIA

CAO & HONG (NO. 2)

[2018] FamCA 788

FAMILY LAW – PROPERTY – INTERIM – Application to vary injunctions to allow funds to be raised for legal costs in Taiwan legal proceedings and working capital – Application for further discovery orders and direction to single expert.

Family Law Act 1975 (Cth)

Cao & Hong [2015] FamCA 884
Cao & Hong [2016] FamCA 605
Cao & Hong (No. 2) [2016] FamCA 909
Hong & Cao [2018] FamCA 40
Hong & Cao (No. 2) [2018] FamCA 41
Cao & Hong [2018] FamCA 196

APPLICANT:

Ms Cao

RESPONDENT:

Mr Hong

FILE NUMBER:

BRC

5044

2015

DATE DELIVERED:

3 October 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

28 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P Hackett

SOLICITOR FOR THE APPLICANT:

Accuro Legal (Sydney)

COUNSEL FOR THE RESPONDENT:

Mr S Williams

SOLICITOR FOR THE RESPONDENT:

Bespoke Family Lawyers Pty Ltd

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5044 of 2015

Ms Cao

Applicant

And

Mr Hong

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings involving a property dispute have been before members of this Court on a number of occasions since proceedings were commenced by the Applicant wife (Ms Cao) (“the wife”) in June 2015. The Respondent husband (Mr Hong) (“the husband”) lives in Taiwan where substantial corporate and personal business interests exist. The wife resides in Australia.
Earlier substantive judgments have been published which give an overview of the history of the relationship and the pending litigation, being Cao & Hong [2015] FamCA 884; Cao & Hong [2016] FamCA 605; Cao & Hong(No. 2) [2016] FamCA 909; Hong & Cao [2018] FamCA 40; Hong & Cao (No. 2) [2018] FamCA 41 and Cao & Hong [2018] FamCA 196. I see no useful purpose being served in reciting, yet again, that history, save so far as is relevant to the determination of issues raised before me on 28 June 2018.
Every Application in a Case requires voluminous annexures and exhibits. It is apparent, notwithstanding the asserted size of the assets available for distribution, that the sooner these proceedings progress to a final hearing the better.
To a large extent, the continued operation of injunctions ordered by Forrest J on 22 October 2015 which seek to regulate the conduct of the parties pending a final determination…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cao & Hong (No 2)

Details

AGLC: Cao & Hong (No 2) [2018] FamCA 788
Case: [2018] FamCA 788
Decision Date: 3 October 2018

CaseChat Overview and Summary

In *Cao & Hong (No 2)*, Baumann J of the Supreme Court of Victoria considered a dispute concerning the interpretation of a settlement agreement and its implications for the enforcement of a previous court order. The applicants, Cao and Hong, sought to set aside a consent order made in earlier proceedings, arguing that the respondent had breached the terms of a subsequent settlement agreement.

The central legal issue before the court was whether the settlement agreement effectively superseded and discharged the prior consent order, or if the consent order remained enforceable notwithstanding the terms of the settlement. This required an examination of the parties' intentions as expressed in the settlement agreement and the principles governing the discharge of court orders by subsequent agreements.

Baumann J reasoned that the language of the settlement agreement, particularly clauses relating to the finality of the settlement and the release of claims, indicated a clear intention by the parties to resolve all outstanding matters and discharge the previous consent order. The court applied the principle that a subsequent agreement can discharge a prior court order if it is intended to do so, and that such intention is to be gathered from the terms of the agreement itself. The court found that the settlement agreement was comprehensive and intended to be a complete resolution of the dispute, thereby extinguishing the prior order.

Consequently, Baumann J ordered that the application to set aside the consent order be dismissed, as the court found that the consent order had been discharged by the subsequent settlement agreement.

Orders