JUONG & ZANG

[2014] FamCA 783

FAMILY COURT OF AUSTRALIA

JUONG & ZANG [2014] FamCA 783

FAMILY LAW – PRACTICE AND PROCEDURE – Application for stay of final property orders pending determination of appeal – where that application was dismissed.

Family Law Act 1975 (Cth)

Jackson & Balen [2009] FamCAFC 131
Weir & Weir [1993] FLC 92-338

APPLICANT: Ms Juong

RESPONDENT: Mr Zang

FILE NUMBER: SYC 4444 of 2012

DATE DELIVERED: 5 September 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 5 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Zhang Shijing Lawyers

Orders

1. The wife’s Application in a Case filed 19 August 2014 be dismissed.

2. Pursuant to the slip rule, order 6.5 made 23 July 2014 be amended to omit the words “paragraph 5.1” where it occurs on two occasions and to replace it with the words “paragraph 6.1”.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 444 of 2012

Ms Juong

Applicant

And

Mr Zang

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 23 July 2014 final orders were made for a division of property of the parties.  In essence, those orders required that moneys held by St George Bank at Suburb M in the name of a company, B Pty Limited, be made available for distribution so that the husband’s trustee in bankruptcy received an amount to discharge the husband’s bankruptcy; school fees were paid for the elder child to enable him to complete his final year of high school; the wife’s tax bill was paid; the wife was paid child support arrears and any remaining balance was divided evenly between the parties. 

2. The other major asset, which was the husband’s one quarter interest in a property in City C, was not the subject of any order.  This was because the wife had taken her own independent action in China in relation to that property, and she retained whatever rights of appeal that she had in relation to the orders made in the Chinese Court.  Otherwise, the parties were to retain and be responsible for assets and liabilities in their own names and possession. 

3. The lawyer for the husband has informed me today that he has received the moneys from the St George Bank at Suburb M, and holds them currently in trust and has not yet distributed them pursuant to the orders.  By way of an Application in a Case filed on 19 August 2014, the wife has sought that the orders made on 23 July 2014 be stayed.  The wife has filed a notice of appeal on 18 August 2014.  The grounds of appeal are as follows:

   1. The orders under the Family Law Act s 106B that the appellant ex-husband was not in fact a bankrupt. It is proven [the husband] lied under oath about his China interest in his property located in [City C] to his trustee and should never been accepted as being a bankrupt. That the appellants ex-husband share in his property in [City C] located a unit [City C], China, should be included in the joint assets.

   2. In the orders there is no provision for school fees for [L] the youngest and is totally unfair this child should not be treated the same way as the eldest son [E], ref Family Law Act 1975.

   3.     That the ex-husband superannuation monies were also not take into consideration in his declaration of assets.

   4.     That the amount of $150,000.00 was the appellants brothers money and loaned to [the wife] and [the husband] jointly and must be repaid from the sale of the family home located at [Suburb Y], Sydney, NSW.

4. The wife seeks that the Full Court make the following orders:

   1.     The appellant seek to have the court revoke the current order so that families borrowed monies be returned to them personally.

   2.     That the youngest son [L] have monies allocated for his school fees.

   3.     That the balance of monies be paid to the appellants taxation bill.

   4.     That monies be allocated for the care of the appellants two sons.

   5.     That the unauthorised use of the ANZ Visa Card monies be repaid.

   6.     That the superannuation monies and [City C] property assets be distributed 80% to the appellant and 20% to [the husband].

5. The wife filed an affidavit in support of her application for a stay on 19 August 2014, but does not specifically deal with issues to be considered in the stay application in that affidavit; rather she seems to indicate that she may wish to make an application to the Full Court to adduce evidence not presented at the hearing. 

THE LAW APPLICABLE TO A STAY OF AN ORDER PENDING AN APPEAL

1. In Jackson & Balen [2009] FamCAFC 131 the Full Court said at paragraph 28:

   The principles to be applied in hearing a stay application pending an appeal are well settled (see Federal Commissioner of Taxation v Myer Emporium Ltd [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; Jennings Construction Ltd v Burgundy RoyaleInvestments Pty Ltd (1986) 161 CLR 681). Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

   ·the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

   ·a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·a person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to grant a stay;

   ·the application must be bona fides;

   ·a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

   ·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

   ·some preliminary assessment of the strength of the proposed appeal  - whether the appellant has an arguable case.

FAIRNESS OF GRANTING A STAY

1. Turning to the fairness of granting a stay, if the stay is granted the effect of the wife’s current application would be to stop the implementation of the order. That is, stop the release funds to allow the husband to be discharged from his bankruptcy; the release funds for the payment of the elder child’s school fees in his final year of school; payment of the wife’s tax debt, and payment to her of an outstanding child support liability. 

2. The orders that the wife seeks from the Full Court are a little difficult to understand.  The first order seems to require the whole of the frozen funds to be repaid to her family, but I assume that the subsequent orders that she seeks would mean that that would only happen after the youngest child’s school fees were paid, after the wife’s tax has been paid, and after some child support has been paid.  The effect of what the wife seeks is that the husband receive no benefit from the frozen funds. 

3. As set out above, particularly in property matters, a person who obtains a judgment is entitled to the benefit of the judgment and is entitled to presume that the judgment is correct.  The husband would clearly be inconvenienced by not having funds to discharge his bankruptcy in circumstances where I have found that the husband’s bankruptcy arose out of activities carried out by the parties during their cohabitation. 

THE RISK THAT THE WIFE’S APPEAL MAY BE RENDERED NUGATORY IF A STAY IS N OT GRANTED

1. In relation to the risk that the wife’s appeal may be rendered nugatory if a stay is not granted, there are two matters of some relevance.  The first is the actual quantum the husband may have to repay if the wife’s appeal is successful.  The advantage the husband gets from the order that has been made is firstly an amount of $115,053, together with accumulated interest, that will be paid to his trustee in bankruptcy in order to discharge his bankruptcy. The other potential benefit the husband gets out of the order is that he will receive one half of any moneys that are left over after payment of school fees, the wife’s tax, and child support arrears.  I would not anticipate that that amount would be great.  The husband will also have the advantage of having child support arrears paid, but if that money is paid to the wife and, if the appeal is successful, the child support debt would be reinstated. 

2. The second matter that is relevant to this consideration arises out of my discussions in the Reasons for Judgment dated 23 July 2014 (“the Reasons”) at [183] to [188].  The husband is currently involved with a person with whom he is in a close personal relationship.  They run a business.  The husband receives income from the business that he is currently conducting.  In my view, it cannot be said that the wife would not be able to recover any favourable order that she might obtain after a successful appeal.  I am unable to conclude that not granting a stay would render the wife’s appeal nugatory. 

A PRELIMINARY ASSESSMENT OF THE STRENGTHS OF THE PROPOSED APPEAL

1. Making a preliminary assessment of the strengths of the proposed appeal I will deal with each ground individually. 

Ground 1

1. In relation to ground 1, the wife asserts that “the husband was not, in fact, a bankrupt”.  On the findings that I have made, that statement is not factually accurate.  It might be that the wife is asserting that he should not have been made a bankrupt, but that is another matter.  The basis upon which the wife makes that assertion is the husband’s interest in the Chinese property.  Whether or not the husband should have been made a bankrupt is not a matter that affects the orders that have been made.  Clearly, moneys are owing to the creditor that bankrupted the husband, and any other creditor involved.  I do not find that there is any substance to that part of ground 1 in the wife’s appeal. 

2. The next part of ground 1 is that the husband’s interest in the Chinese property “should have been included in the joint assets”.  My consideration as to how I would deal with the Chinese property is dealt with in [119] to [126] of the Reasons.  At [125], I indicate that it was unclear on the evidence as to whether or not the wife had exhausted her appeal processes in the Chinese court, and at [126] I concluded:

   126.  As indicated, the husband seeks that the Chinese property not be the subject of any property settlement order. Given that the wife has made an application to the Chinese court, I find that it is just and equitable not to make an in personam order in relation to the Chinese property and to leave the Chinese court to determine the ownership of the Chinese property. As currently determined it seems likely that the husband will receive a one quarter interest in that property and the wife will receive none of it.

3. As is evident when considering what final orders were to be made, I worked on the assumption that the husband has a one quarter interest in the property in China, from which the wife was unlikely to receive any benefit.  Apart from the assertion of total unfairness, the wife has not set out a sustainable ground of appeal in relation to the treatment of the Chinese property. 

Ground 2

1. In relation to ground 2, the reasons for making an order in relation to the elder son’s year 12 school fees and not the younger son’s school fees are set out at [194] of the Reasons. See also, [190] and [198].

Ground 3

1. In relation to ground 3, the wife complains that the husband’s superannuation moneys were not taken into consideration.  The wife did not seek any splitting order in relation to the husband’s superannuation and it is true that minor assets on the respective financial statements of the parties were not specifically referred to in the Reasons, although the Reasons did demonstrate that the financial statements of the parties were read.  At [107] to [114] of the Reasons I discuss that neither the wife nor the husband were “innocent”, as that word is used in Weir & Weir [1993] FLC 92-338.

2. I found that I was relieved from any obligation to be unduly cautious about making findings about what assets either party had.  As [12.4] of the Reasons indicate, the husband relied upon an amended financial statement filed on 13 October 2013.  That financial statement refers to the husband’s only significant assets being his interest in the Chinese property.  It also disclosed the husband had an interest in superannuation of $20,721.18.  The husband disclosed that he had various liabilities, the most significant of which was the liability that led him to becoming bankrupt. 

3. At [13.4] of the Reasons, I noted the wife relied upon a financial statement filed on 6 February 2013.  That financial statement indicates the wife’s major asset was in the property at Suburb Y.  That is, the property that was injuncted from sale but the wife went ahead and sold anyway, and it is the property which has provided the source of the frozen funds.  The wife also claims in her financial statement some unspecified equitable interest in the Chinese property to which she ascribed no value. 

4. The wife also had a motor vehicle worth $8,000, which has since been disposed of; a Westpac bank account of $3,000 and household contents of $10,000.  The wife had no superannuation and she set out certain liabilities that she claimed. 

5. At [117] and [118] of the Reasons I note that it is very likely that each party has funds which have not been disclosed, and, in those circumstances, and consistent with the way the final submissions of the parties were framed, I focused on the two known significant assets which remained. 

6. The fact that I have not referenced minor assets, for example, the wife’s furniture or the husband’s superannuation, needs to be seen in light of my observation that I had no confidence that either party had properly disclosed to me the assets that they had. Importantly, I refer to the finding made at [162] of the Reasons that the wife had control of capital of the parties in the identifiable amount of approximately $383,000, and I found the wife lost a significant amount of that money in gambling and otherwise did not explain to my satisfaction where the money had gone. 

Ground 4

1. In relation to ground 4 of the wife’s appeal, the wife asserts that I should have found that the $150,000, that the wife claims came from her family, must be repaid from the sale of the Y property. This is a submission that the wife made at the trial and in respect of which she was unsuccessful for reasons set out in my judgment. My conclusion about the alleged loans by the wife’s family are set out specifically at [103] to [105] of the Reasons. It should be remembered that the moneys were only frozen in the St George Bank after the wife had disregarded a direct order that she not sell the matrimonial home. See [126] of the Reasons. 

2. My conclusion is that the wife has little prospects of success on the grounds of appeal that she has set out thus far. 

ADDUCING FRESH EVIDENCE BEFORE THE FULL COURT

1. Finally, in relation to the wife’s grounds of the appeal, the affidavit filed by the wife on 19 August 2014 contains potential evidence from the wife’s father, providing evidence that was not presented at the hearing. That evidence relates to a comment that I made in the Reasons at [89]. I infer that the wife will be seeking to adduce that new evidence before the Full Court. The affidavit also encloses evidence from the wife’s mother, who represented the second respondent, B Pty Ltd, at the hearing and gave evidence at the hearing.

2. The evidence from the wife’s mother was attempted to be tendered before me in the final submissions and I have dealt with that issue at [105] of the Reasons.

3. The wife may have some difficulty in convincing the Full Court to admit this evidence as being evidence that was unavailable at the time of the hearing.  Even if that evidence is admitted, it is unlikely it would be found to materially affect the overall approach and result as set out in the Reasons to which I have already referred. 

WHETHER THE APPEAL CAN BE HEARD WITHIN A REASONABLE AMOUNT OF TIME

1. Without expedition, it’s unlikely that the appeal would be heard and determined by the Full Court in the short term. That creates a serious disadvantage for the husband and his ability to be discharged from his bankruptcy. The wife is an unrepresented litigant.  As I comment in the Reasons, her sole purpose in this litigation was to maximise the amount of money that she had available for herself, her children, and her family members, and to ensure that the husband received nothing from the funds available in Australia. Objectively, her bona fides can be questioned. 

2. Taking all the matters referred to above into account, I conclude that the stay should not be granted and I dismiss the wife’s application for a stay. 

SLIP RULE

1. Finally, I noticed when re-reading the orders that there is a typographical error in order 6.5 where that paragraph on two occasions refers to “paragraph 5.1”. It should read “paragraph 6.1”, and I will make an order under the slip rule correcting that error. 

I certify that the preceding thirty (30) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 5 September 2014.

Associate: 

Date:  18.9.14