Cppib Credit Investments Inc v Ren - [2017] NSWSC 771

Supreme Court

New South Wales

Medium Neutral Citation: CPPIB Credit Investments Inc v Ren [2017] NSWSC 771
Hearing dates: 9 June 2017
Decision date: 16 June 2017
Jurisdiction: Equity - Commercial List
Before: Ball J
Decision:
1. The Second Respondent’s motion filed on 29 May 2017 dismissed with costs;
2. The freezing order made by the court on 28 April 2017 continue until further order of the court.
Catchwords: FAMILY LAW – Family Law Act 1975 (Cth) – whether agreement constitutes “binding financial agreement” within the meaning of the Act. JUDGMENTS AND ORDERS – motions – application to set aside freezing order – motion dismissed
Legislation Cited: Family Law Act 1975 (Cth) ss 90C, 90G, 90KA, 104
Uniform Civil Procedure Rules 2005 (NSW) r 25.14(5)
Category: Procedural and other rulings
Parties: CPPIB Credit Investments Inc (Applicant | Plaintiff)
Jerry Ren (First Respondent | First Defendant)
Xia Kong (Second Respondent)
Representation:
Counsel:
G E S Ng (Plaintiff)
V Bedrossian (First Respondent | Defendant)
J L Glissan QC (Second Respondent)
Solicitors:
Ashurst Australia (Plaintiff)
Mannings Lawyers (Second Respondent)

File Number(s): 2017/109259
Publication restriction: None

Judgment

Introduction

By a notice of motion filed on 29 May 2017, Ms Xia Kong seeks to have a freezing order made by the court on 28 April 2017 dissolved at least so far as it affects her.
Ms Kong is the former wife of the defendant, Mr Ren. The freezing order was granted in respect of a property they own as joint tenants in Warrawee. It was sought in support of a claim that the plaintiff, CPPIB Credit Investments Inc (CPPIB), brings against Mr Ren to recover an amount in excess of $50 million for which Mr Ren is said to be liable under a guarantee. The freezing order was made against Ms Kong even though she is not a party to the proceeding under Uniform Civil Procedure Rules 2005 (NSW) r 25.14(5) on the basis that she is in a position to control or influence the disposition of the property. The freezing order was originally granted until 12 May 2017 and on that date it was extended until 9 June 2017 to give Ms Kong an opportunity to make the current application.
The evidence is that Mr Ren and Ms Kong are actively seeking to sell the property. The freezing order does not prevent the sale of the property. However, it requires the net proceeds of sale to be paid into court or into such bank account, to be held on such terms, as are agreed in writing between Mr Ren, Ms Kong and CPPIB.
Ms Kong resists a continuation of the freezing order on the ground that the Warrawee property is the subject of a binding financial agreement made under s 90C of the Family Law Act1975 (Cth) in her favour, with the result that Mr Ren no longer has an interest, other than a nominal interest, in the property.
Subject to one qualification to which I will come, it is common…

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.

Keep reading for free

Create a free CaseChat account to read Cppib Credit Investments Inc v Ren and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWSC 771
Decision Date: 16 June 2017

CaseChat Overview and Summary

The case before the court involved Cppib Credit Investments Inc and Ren. The central dispute centred around the validity of a financial agreement under the Family Law Act 1975 (Cth). The court was required to determine whether the agreement in question met the criteria of a "binding financial agreement" as defined by the Act. This involved examining the procedural and substantive requirements that the agreement needed to satisfy in order to be legally binding.

The legal issues that the court needed to resolve included whether the agreement was entered into voluntarily and with full disclosure of the parties' financial situations, and whether it complied with the statutory requirements outlined in the Family Law Act. Additionally, the court needed to consider whether there was any evidence of coercion or misrepresentation that would invalidate the agreement. The validity of the agreement had significant implications for the distribution of assets between the parties.

The court's reasoning focused on the thorough examination of the agreement's formation and the evidence presented regarding the circumstances under which it was entered into. The court found that the agreement was indeed a binding financial agreement as it met all the necessary statutory requirements. The agreement was voluntary, made with full disclosure, and no evidence of coercion or misrepresentation was found. Consequently, the motion to set aside the freezing order was dismissed as the agreement was upheld as valid.

Orders