Cheung and Cheung and Ors (No. 2)

[2008] FamCA 1163

FAMILY COURT OF AUSTRALIA

CHEUNG & CHEUNG AND ORS (NO. 2) [2008] FamCA 1163

FAMILY LAW – PROPERTY – Case adjourned part-heard – Referral of papers to Attorney-General and Commissioner – Decline to make other interim orders

APPLICANT: Ms Cheung

FIRST RESPONDENT: Mr Cheung

SECOND RESPONDENT: C Cheung

THIRD RESPONDENT: Y Cheung

CASE GUARDIAN: Mr Ming

FILE NUMBER: BRF 1286 of 2006

DATE DELIVERED: 15 December 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 15 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC with Mr Beacham

SOLICITOR FOR THE APPLICANT: Jones Mitchell Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Kirk SC

SOLICITOR FOR THE FIRST RESPONDENT: Charles Cooper Lawyers

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS: Mr Hopgood, Hopgood Ganim Lawyers

Orders

IT IS ORDERED

1. That the Husband immediately sign documents provided to him by the Wife to appoint Mr TH of P Law Group, Taiwan, as the husband’s Power of Attorney for the purpose of facilitating and enabling the registration of cautions against the titles to the properties known as P Road and K Road, more particularly described as:

   No x P Road;

   No x-1 P Road;

   No x-2 P Road;

   No x-3 P Road;

   No x-4 P Road;

   No x-5 P Road;

   B1, No x-1 P Road;

   B1, No x P Road;

   B2, (Parking Space) No x P Road;

   12F, K Road;

   12F-1, K Road;

   to prevent dealing with such properties without the consent of the Wife or pending further Order of this Honourable Court.

2. That until 4.00 pm on 19 December 2008, the Husband MR CHEUNG be restrained and an injunction hereby issue restraining him from departing from the Commonwealth of Australia pending the making of interim Orders by this Honourable Court or further Order of this Honourable Court.

3. That, subject to any further Order, the Court requests that from 4.00 pm on 19 December 2008 the Australian Federal Police remove the Husband by the names … or … or … or … (born … February 1955) from the Airport Watch List at all points of international arrivals and departures in Australia.

4. That the Wife have liberty to apply in relation to Orders 1 – 3 hereof.

IT IS NOTED

1. That it is the intention of the Court to refer the matter to the Attorney-General’s Department in relation to a referral of the papers to the Commissioner for Taxation for assessment of any tax payable by the parties, including any penalties and interest thereon.

IT IS FURTHER ORDERED

1. (a)     That the legal representatives for the parties confer with a view of reaching agreement as to the portion of the $20,423,028.00 proceeds of sale of the S site to be added back into the property pool consistent with the terms of the judgment of the Family Court of Australia on 27 November 2008 and paragraphs 167 – 170 in particular, with the parties to specifically address those matters identified in paragraphs 163 – 166 of the said judgment.

   (b)That the legal representatives for the parties record in writing the expenditures agreed and the expenditures disputed, if any.

   (c)In the event that disputes remain:-

   i.       that on or before 27 February 2009, the Husband file and serve upon the Wife an affidavit setting out particulars of the expenditures he contends should be taken into account and deducted from the funds to be added back in accordance with the said judgment and the grounds for such contention;

   ii.     that on or before 27 March 2009, the Wife file and serve upon the Husband an affidavit setting out particulars of the expenditures referred to in the Husband’s affidavit which are conceded as appropriate deductions and particulars of the expenditures in dispute and the grounds upon which she contends they should not be included;

   iii.     that on or before 17 April 2009, the Husband file and serve an affidavit in reply to the Wife’s affidavit.

2. That the matter be listed for mention at 9.30 am on Wednesday, 13 May 2009.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRF1286 of 2006

MS CHEUNG

Applicant

And

MR CHEUNG

First Respondent

And

C CHEUNG

Second Respondent

And

Y CHEUNG

Third Respondent

And

MR MING

Case Guardian

REASONS FOR JUDGMENT

EX TEMPORE

1. This is a case that has thrown up many challenges so far.  New challenges emerged for me during the course of the judgment writing process.  As I have explained in my judgment, I eventually formed the view that I was unable to deliver a final judgment, firstly, because of my inability to properly determine the notional value of the most substantial asset of the parties, being the residual proceeds of sale of the S site, and secondly, because of the uncertainty about the status and quantum of any liability of the parties to the Taxation Office.

2. Each of those questions potentially involves multiple millions of dollars and some of the outcomes might have the effect of largely extinguishing the parties' interests in property.  I took the view in my judgment that I needed answers to each of those questions prior to proceeding to finalise my judgment and make orders.

3. This is a unique set of circumstances in my now long experience on the Bench and everyone is grappling with the position created, in part, by the facts of this case and, in part, by the status of my own judgment and the way I have dealt with this matter.

4. There have been perils involved for all of the parties in this case from the outset.  Those perils remain and some new ones have been created by the inconclusive nature of my judgment.  I trust I have adequately explained why I have left the judgment in that state.

5. Like counsel for each of the parties, I have been trying to second guess what may happen in the future in terms of those assessments and in relation to any future appeals and the outcome of any such appeals.  In the end result, I have determined that I should withdraw from the “what if?” machinations and proceed in a way which is consistent with my earlier deliberations and determinations provided to the parties to date.

6. I take the view that I should enable all of the parties to further consider the need to address the outstanding issue of the quantum of the S site proceeds to be added to the asset pool.  I have sought to provide guidance in relation to the information I am seeking and I remain open to the way that might be addressed, whether by agreement, by submissions or by evidence.  I intend to make some more specific directions which will provide a framework for those processes to be explored by the parties so that that matter does have a finite future.

7. Similarly, I think I should proceed in a way consistent with my judgment and allow any appeals to take their course and deal with any matters arising as a result of any lodged appeals as and when they arise. 

8. Consistent with my judgment, I should also proceed to refer the papers for assessment.  That may take months.  I certainly do not rule out the prospect that it could take years.  I have already decided that I am not comfortable or able to proceed beyond this point until that aspect of the case has been addressed.

9. In terms of what I should do in the meantime, again acutely mindful as I am of the risks associated with this course, I take the view that I should not make orders which pre-empt the processes that are still in train, notwithstanding that I have made concrete findings which will not be varied other than by way of successful appeal in relation to the ownership and entitlement to property.

10. I take the view that I should make the orders sought and largely conceded by the husband designed to prevent dealings with properties in Taiwan.  There are existing orders in relation to Australian property.  The only orders I will make are those designed to preserve property, pending the further steps to be taken.

11. I propose to continue the restraint upon the husband's travel from this country only until such time as he executes the necessary power of attorney to secure the cautions.

12. I take into account his inherent rights to freedom of travel.  I take into account the circumstances of this particular case, particularly the age of his parents and their state of health.  I take account of the fact that to date, notwithstanding this litigation, there has been apparent opportunity for the husband to take steps to further alienate property and that he has not done so.

13. In all the circumstances, I take the view that, on balance, I should not extend the existing restraint beyond that which I have now indicated.

14. Consistent with those observations and my earlier reasons, I do not propose to make the other final or interim orders sought.

15. I should, for the purposes of these reasons, admit into the record the draft minutes of final orders tendered on behalf of the wife as Exhibit A.

    EXHIBIT #A  DRAFT MINUTES OF FINAL ORDERS TENDERED ON BEHALF OF THE WIFE 

16. Exhibit B will be the submissions in relation to those final orders.

    EXHIBIT #B  SUBMISSIONS IN RELATION TO THOSE FINAL ORDERS 

17. And I will also include the outline of argument on behalf of the husband, which will be exhibit C.

    EXHIBIT #C  OUTLINE OF ARGUMENT ON BEHALF OF THE HUSBAND 

    RECORDED  :  NOT TRANSCRIBED

    ORDER DELIVERED

18. Hopefully, those orders give the husband the opportunity to make plans contingent upon the injunction being lifted on this Friday and give the wife, through her legal representatives, the opportunity to put in train some of these matters which were designed to have these registration issues addressed.

19. Essentially, the order sought was one to have the husband execute the power of attorney and he has indicated in his material that he is prepared to meet that commitment, and that might at least enable the wife's legal representatives to address those matters raised in pars 4 and 5 and, if they are striking difficulties, the matter can come back before me before the end of the week.

    RECORDED  :  NOT TRANSCRIBED

    ORDER DELIVERED

20. I give the wife liberty to apply and I will make myself available to take any such application by telephone on short notice.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate:

Date:  14 January 2009