Chang and Yao and Anor

[2010] FamCA 1071

FAMILY COURT OF AUSTRALIA

CHANG & YAO AND ANOR [2010] FamCA 1071

FAMILY LAW – INJUNCTIONS – Ex parte application to freeze accounts – Evidence First Respondent has transferred monies from joint account of parties to the Second Respondent – Injunctions granted – Usual undertaking as to damages required and given

APPLICANT: Ms Chang

FIRST RESPONDENT: Mr Yao

SECOND RESPONDENT: J Yao

FILE NUMBER: SYC 6367 of 2010

DATE DELIVERED: 16 November 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Barry J

HEARING DATE: 16 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Chen, Solicitor appearing for the Applicant Wife

SOLICITORS FOR THE APPLICANT: Chen Shan Lawyers

SOLICITORS FOR THE FIRST

RESPONDENT:

There was no appearance by the First Respondent

SOLICITORS FOR THE SECOND

RESPONDENT:

There was no appearance by the Second Respondent

Orders

IT IS ORDERED THAT:

1. The next hearing date of 11 January 2011 be vacated.

2. The proceedings be adjourned to a date to be fixed after the 17 January 2011.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Applicant be granted leave to proceed ex parte.

2. The Applicant’s legal representatives serve the Applicant’s Applications in Forms 1 and 2 filed 8 October 2010, supporting affidavit filed 8 October 2010, Amended Application in Form 2 and supporting affidavit filed by leave on 16 November 2010 together with a copy of the Orders of this Honourable Court of today’s date by forwarding same by registered post to the First Respondent at his employment at P Company Pty Ltd, …, New South Wales.

3. The Applicant’s application be served on the Second Respondent by serving the documents on the First Respondent in accordance with Order (4) hereof.

4. The First Respondent without the written consent of the Applicant be restrained from withdrawing, transferring or otherwise dealing with any of the funds in the following bank accounts the First Respondent holds with Westpac Banking Corporation:

   a.…65;

   b.…88;

   c.…04

   d.…23;

   e.…18 and

   any other accounts in the name of the First Respondent solely or jointly with third party(s), or under control of the First Respondent, held with Westpac Banking Corporation.

5. The First Respondent without the written consent of the Applicant, be restrained from withdrawing, transferring, or otherwise dealing with any of the funds in the following bank accounts the First Respondent holds with St George Bank:

   a.…82; and

   b.…11; and

   any other accounts in the name of the First respondent solely or jointly with third party(s), or under the control of the Second Respondent, held with St George Bank.

6. The Second Respondent be restrained from withdrawing, transferring, or otherwise dealing with any of the funds in the bank account …30 the Second Respondent holds with St George bank, and any other accounts in the name of the Second Respondent solely or jointly with third party(s), or under the control of the First and/or Second Respondent, held with St George Bank.

7. That within seven (7) days of the making of these Orders the First and Second Respondents provide to the Applicant statements of all bank accounts and details of any safety deposit box(es) within or outside of Australia held by them jointly or individually, from April 2005 to the present date, and details of all transactions in relation to any interest held by them in such bank accounts and items in the safety deposit box(es).

8. All communication by the First and Second Respondents with respect to the implementation of these Orders and the ongoing proceedings shall be conducted through the legal representative for the Applicant.

9. Within seven (7) days of the making of these Orders, the First Respondent provide copies in writing of all business statements, balance sheets, bank accounts of the business(es) and company(ies) of which he is a legal or equitable owner and/or in which he has legal or equitable interests.

10. Within seven (7) days of the making of these Orders, the First Respondent transfer $45,426.96 to the Applicant’s legal representative’s trust account:

    Account Name: Chen Shan Lawyers

    BSB: …

    Account Number: …

11. The Applicant is at liberty to serve a copy of the Orders of today’s date on Westpac Bank and St George Bank

NOTATION:

The Court notes the undertaking of the wife given through her solicitor to pay as directed by the Court to any person restrained or affected by the restraints imposed by the injunctions granted today or by any continuation thereof, such compensation as the Court may in its discretion determine.

IT IS NOTED that publication of this judgment under the pseudonym Chang & Yao and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6367 of 2010

Ms Chang

Applicant

And

Mr Yao

First Respondent

And

Ms Yao
Second Respondent

REASONS FOR JUDGMENT

1. I will give leave to proceed ex parte in the circumstances.  I will give leave to serve the application in a case, the initiating application and the amended application in a case, and the applicant’s affidavits of 8 October, 12 October, and filed by leave on 16 November, and a copy of the orders by registered post to the respondent at his employment at P Company, …, NSW.

2. I will also make an order that the applicant’s material be served on the second respondent by serving the documents on the first respondent in accordance with the previous order.

3. I will make an order in terms of the paragraph 12 of the amended application in the case, but it is to be paid to the applicant’s solicitor’s trust account.  You will give my associate the full name of your firm and the name of the trust account and the details.  So you’ll spell out which bank and the account number.

4. And I won’t make an order in terms of paragraph 13.  I don’t know what the fees are, and that can wait for another day, all right.

RECORDED  :  NOT TRANSCRIBED

1. I will make orders in terms of paragraphs 1.

RECORDED  :  NOT TRANSCRIBED

1. I’ve turned to consider part 8AA being orders and injunctions binding third parties.  Section 90AA provides the object of this part is to allow the court in relation to the property of a party to the marriage to a) make an order under section 79 or section 114, or b) grant an injunction under section 114 that is directed to or alters the rights, liabilities or property interests of a third party.  I take the evidence in the affidavits of the applicant at face value, that the first respondent and the second respondent are in a relationship, and it is appropriate to issue an order restraining the second respondent from withdrawing, transferring or otherwise dealing with funds in any account that the wife is prima facie able to demonstrate as being monies drawn from the parties’ joint account. 

2. I note there is an order there for spouse maintenance.  There is no material.  I will not make an order in terms of paragraphs 6 and 9 at this stage.

RECORDED  :  NOT TRANSCRIBED

1. I do not have a full picture of the assets of the parties.  I will not make an order for spouse maintenance at this stage.  The First and Second Respondents have to be served with the material.  Before doing so it will be necessary to confirm the First Respondent is still employed by P Company.  So I will not make an order in terms of paragraph 6 at this stage.  I will not make an order that he pay the costs until we hear his side of the story, but I will make an order in substitution saying that: The applicant is at liberty to serve copies of the orders made on this date on the Westpac bank and St George bank.  So you serve the banks as well to give them notice of what has happened. 

RECORDED  :  NOT TRANSCRIBED

1. I’ll see to it that a dated is fixed sometime on or after 17 January, 2011.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 16 November 2010.

Associate: 

Date:  16 November 2010