Lao and Cxue

[2014] FamCA 984

FAMILY COURT OF AUSTRALIA

LAO & CXUE [2014] FamCA 984

FAMILY LAW – PROPERTY

APPLICANT: Ms Lao

RESPONDENT: Mr Cxue

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2038 of 2014

DATE DELIVERED: 9 May 2014

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Johns J

HEARING DATE: 9 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Che

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Robinson

SOLICITOR FOR THE RESPONDENT:

Orders

1. The wife, her servants and agents, shall arrange to have available for collection by the husband’s agent by close of business Tuesday 13 May 2014 all keys in relation to the property at F Street, Suburb G (“Suburb G”).

2. The husband shall place Suburb G on the market for sale by public auction forthwith on such terms and on such conditions as agreed between the husband and wife, and failing agreement on such terms and conditions nominated by the selling agent.

3. The selling agent regarding Suburb G shall be agreed between the husband and wife within 14 days and failing agreement to be appointed by the president of the Real Estate Institute of Victoria.

4. The proceeds of sale of Suburb G shall be applied:

   (a)to pay the costs, commissions and expenses of the sale and any reasonable costs in preparing the property for sale;

   (b)the balance to be held on trust by the husband’s solicitors, Mills Oakley Lawyers until further Order or otherwise agreed between the husband and wife in writing.

5. The husband and wife do all acts and things necessary to facilitate the preparation of a sworn valuation at their equal expense of the husband’s companies and business interests in Hong Kong and China (“H Group of Companies”) including:

   (a)H Holding Ltd

   (b)H Ltd

   (c)J Ltd

   (d)H A Pty Ltd

   (e)H B Ltd; as well as

   (f)I Inc.

   (“the business valuation”) such valuation to be commenced as soon as practicable after the appointment of the single expert.

6. The single expert for the business valuation shall be agreed between the husband and wife within 21 days, with each being at liberty to nominate three prospective valuers within 7 days and in the event agreement cannot be reached, each of the husband and wife have liberty to make application to the Court regarding the identity of the single expert to be appointed.

7. Each of the husband and wife shall:

   (a)make available copies of, or authorise access to, all personal and company bank accounts whether in Australia or overseas to the single expert

   (b)authorise the accountants of the H Group of Companies to communicate with the single expert.

8. The husband and wife do all acts and things necessary to facilitate the preparation of a sworn valuation, at their equal expense of the following real estate:

   (a)K Street, Suburb M, VIC

   (b)N Street, Suburb O, VIC

   (c)P Street, Suburb Q, NSW

   (d)R Street, Suburb S, VIC

   (e)T Street, Suburb U, VIC

   (“real estate valuations”), such valuations to be completed 28 days prior to the private mediation.

9. The single experts of the real estate valuations shall be agreed between the husband and wife within 28 days, and failing agreement as nominated by the President of the Real Estate Institute of Victoria or his/her nominee, and the equivalent office holder in the state of New South Wales.

10. Any interest payments payable to the joined parties pursuant to the loan agreements between Company V and Company W and the joined parties shall be paid into the trust account of the joined parties’ solicitors, Rotstein Commercial Lawyers and shall not be disbursed save for the reasonable legal costs of the joined parties in these proceedings.

AND THE COURT NOTES

A.The parties intend to convene a private mediation at their equal expense as soon as practicable after the preparation of the single expert’s valuation of the H Group of Companies.

B.The husband asserts that in accordance with paragraph 107(y) of his Affidavit filed 1 April 2014 he does not have any legal or equitable interest in I Inc and it does not form part of the H Group of Companies.

C.The wife has this day advised that her parents have already vacated the Suburb G property.

D.The wife asserts that the loan agreements between Company V and COMPANY W and the Joined Parties are shams.

BY CONSENT IT IS ORDERED

1. That the joined parties have leave to uplift from their affidavits filed 25 April 2014 the following annexures:

   (a)In relation to the affidavit of Mr B, annexures 14, 15, 18 and 21 of his affidavit;

   (b)In relation to the affidavit of Mr C, annexures 7, 10 and 14 of his affidavit;

   (c)In relation to the affidavit of Ms D, annexures 12, 15 and 16 of her affidavit; and

   (d)In relation to the affidavit of Mr E, annexure 7 to his affidavit.

2. That the requirement that the parties attend a Conciliation Conference be dispensed with on the basis of the stated intentions of the parties as reflected in Notation A of the consent orders made this day.

3. That all extant interim applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lao & Cxue 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 MELBOURNE

FILE NUMBER: MLC 2038 of 2014

Ms Lao

Applicant

And

Mr Cxue

Respondent

REASONS FOR JUDGMENT

1. An application has been made by counsel for the joined parties in these proceedings, being Mr B, Mr C, Ms D and Mr E for their affidavits to be uplifted for the purposes of removing annexures to those affidavits. The joined parties are not parties to the relationship the subject of these proceedings.

2. The documents specifically in contention are the annexures 7, 10 and 14 of the affidavit of Mr C. Annexures, 12, 15 and 16 of Ms Au.  Annexure 7 of Mr E’s affidavit and annexures 14, 15 and 18 and 21 of Mr B’s affidavit.  The joined parties have sought from the applicant wife the execution by her of a confidentiality agreement.  Those documents, as annexed to the affidavits, contain financial information which is sensitive to the joined parties.

3. The joined parties are third parties who have entered into commercial loan agreements with the applicant and the respondent.  The applicant disputes the nature of the loan agreements.  It is her case that those agreements are a sham.  Those are trial issues and I am not able to make a determination in relation to those matters at this time.  The applicant refuses to enter into a confidentiality agreement to preserve the confidentiality of the joined parties with respect to their financial information.

4. Counsel for the applicant provides no evidence as to the prejudice to her client, were she to provide such confidentiality agreement to them.  Given the late hour of the day, it now being 4.55 pm, Mr Robinson for the joined parties has made an application to simply uplift the contentious documents on the basis that doing so will preserve the confidentiality of the sensitive financial information and thereby protect the interests of the joined parties. Uplifting the documents will also afford the applicant a further opportunity to consider her position in regard to these matters.

5. The applicant opposed the uplifting of the documents.  In my view, that position is unreasonable in the circumstances of this case.  I do propose to grant leave, as sought, by the joined parties to have their affidavits uplifted so that the contentious and commercially sensitive material as earlier identified by me may be removed.

6. It is to be hoped that upon further consideration and reflection of the issues, the applicant may reconsider her position so that there can be an orderly exchange of documents and information as between all parties. It is hoped that the applicant will have regard to the fact that some of the information that may be provided is commercially sensitive and some may be sensitive from a cultural perspective, it being submitted on behalf of the joined parties that in China, because of this wealth, they are at personal risk should their financial position be disclosed to other parties.

7. I would remind the wife that pursuant to the provisions of section 121 of the Act, that the publication of these proceedings in any event, is prohibited.  Therefore the only order that I will make beyond the consent orders is that the joined parties have leave to remove from their affidavits filed 25 April 2014, the following annexures:

   (a)      in relation to the affidavit of Mr B, annexures 14, 15, 18 and 21;

   (b)      in relation to the affidavit of Mr C, annexures 7, 10 and 14.

   (c)      in relation to the affidavit of Ms D, the annexures 12, 15 and 16;

   (d)and in relation to the affidavit of Mr E, annexure 7.

8. I will otherwise make orders in the terms of the minute of consent orders signed by the parties.  I will mark that minute with the letter A.  It will remain on the Court file. I direct that the respondent’s solicitors engross the minute.  

9. There will be a further order that the requirement that the parties attend a conciliation conference be dispensed with on the basis of the intentions of the parties as noted at notation A. I will also make a further order that all extant interim applications be dismissed.  And a final order that this matter will be placed in the list of cases awaiting allocation to a final hearing.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 9 May 2014.

Associate:

Date:  9 May 2014