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Lin v Yew

Lin v Yew

Case [2020] FamCA 1102

Injunction

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FAMILY COURT OF AUSTRALIA

LIN & YEW

[2020] FamCA 1102

FAMILY LAW – ANTI-SUIT INJUNCTION – proceeding on foot in Supreme Court of Victoria that wife wishes to stop – application refused.

FAMILY LAW – LEAVE TO BRING PROCEEDING OUT OF TIME – s 44(3) – 32 year lapse of time from order nisi to leave application – hardship will be suffered unless leave granted – leave granted.

FAMILY LAW – STAY APPLICATION – husband seeking order staying this proceeding upon leave under s 44(3) being granted – litigation in Supreme Court of Victoria has been on foot for over 4 years – at an advanced stage – different issues involved – stay ordered.

Corporations Act 2001 (Cth), s 1337H(2)
Family Law Act 1975 (Cth), ss 4, 21(2A), 34, 44(3), 44(4)(a), 75(2), 79, 79A, 114
Family Law Rules 2004 (Cth), r 17.01B
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Property Law Act 1958 (Vic), s 53

Supreme Court (General Civil Procedure) Rules 2005 (Vic), ord 47

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.

Continue reading Lin v Yew

Details

AGLC: Lin v Yew [2020] FamCA 1102
Case: [2020] FamCA 1102
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered applications by the wife, Ms. Lin, and the husband, Mr. Yew. Ms. Lin sought an anti-suit injunction to prevent proceedings initiated by Mr. Yew in the Supreme Court of Victoria. Mr. Yew, in turn, sought a stay of the current Family Court proceedings.

The court was required to determine whether to grant an anti-suit injunction to restrain the Victorian Supreme Court proceedings, whether to grant the wife leave to bring a proceeding out of time under section 44(3) of the *Family Law Act 1975* (Cth), and whether to grant the husband a stay of the Family Court proceedings.

The court refused the wife's application for an anti-suit injunction, noting that the Victorian Supreme Court proceedings had been on foot for over four years and were at an advanced stage, involving different issues. Regarding the wife's application for leave to bring a proceeding out of time, the court acknowledged the significant 32-year lapse since the order nisi but found that hardship would be suffered unless leave was granted, and therefore granted leave. However, in light of the advanced stage of the Victorian Supreme Court litigation and the distinct issues involved, the court ordered a stay of the Family Court proceedings.

Orders