Ming and Dao (No 2) - [2020] FamCA 1124

FAMILY COURT OF AUSTRALIA

MING & DAO (NO. 2)

[2020] FamCA 1124

FAMILY LAW – PROPERTY – injunctions sought with respect to proceeds of sale – alleged failure to make proper disclosure – complex business structures – valuation of businesses yet to be completed – expedition sought – injunctive relief not granted – expedition not granted – application dismissed – no order as to costs.

Fanily Law Rules 2004 (Cth)

Cardile & Ors v LED Builders Pty Ltd [1999] HCA 18
Jackson & Sterling Industries Limited [1987] HCA 23
Mullen and De Bry [2006] FamCA 1380
Stowe & Stowe [1980] FamCA 92

Waugh& Waugh [2000] FamCA 1183

APPLICANT:

Mr Ming

RESPONDENT:

Ms Dao

FILE NUMBER:

SYC

8463

2017

DATE DELIVERED:

16 December 2020

PLACE DELIVERED:

Sydney via videoconference

PLACE HEARD:

Sydney via videoconference

JUDGMENT OF:

Altobelli J

HEARING DATE:

14 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC

SOLICITOR FOR THE APPLICANT:

Pigdon Norgate Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Strum QC

SOLICITOR FOR THE RESPONDENT:

Diamond Conway Lawyers

Orders

The application in a case filed 3 December 2020 be dismissed.
The matter be referred to the Listing Coordinator for further listing.
The parties do all acts and things and sign all documents necessary to cause the proceeds of sale of the property Y Street, Suburb B ("the Suburb B Property") to be paid in the following order and priority:
(a)To pay all amounts necessary to discharge the mortgage secured by the Suburb B Property;
(b)To pay all costs and expenses of the sale of the Suburb B Property including legal costs and disbursements, agent's commission, advertising and sale expenses;
(c)To pay the remaining proceeds of sale as to 30% to the husband and 70% to the wife.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5463 of 2017

Mr Ming

Applicant

And

Ms Dao

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By way of an application in a case filed 3 December 2020, supported by an affidavit of 3 December 2020, and a financial statement of 3 July 2020, the husband seeks injunctive orders in relation to the sale proceeds of a property which he owns with his wife at Suburb B (‘Suburb B property’). In effect, the orders he proposed would see the net sale proceeds after payment of the expenses of sale, of utilities and of the mortgage, divided…

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 Ming and Dao (No 2)

Details

AGLC: Ming and Dao (No 2) [2020] FamCA 1124
Case: [2020] FamCA 1124
Decision Date

CaseChat Overview and Summary

In *Ming and Dao (No 2)*, the Family Court of Australia considered an application by the husband for injunctive orders concerning the proceeds of sale of a property he owned with the wife. The husband also sought expedition of the final hearing. The wife sought orders for the net sale proceeds to be divided 30 per cent to the husband and 70 per cent to her. The matter involved complex business structures, ongoing valuations, and a tax audit, with significant disagreement between the parties regarding asset values and disclosure.

The primary legal issues before the Court were whether the husband had established a sufficient legal basis to warrant injunctive relief to restrain the wife from accessing her agreed share of the sale proceeds, and whether the case warranted expedition. The husband contended that the wife's alleged persistent failure to disclose and obstruction of the valuation process created a risk that her share of the proceeds would be dissipated, frustrating his claim. The wife argued that ample assets remained for distribution, and payment of her share would not hinder the husband's substantive claim.

Justice Altobelli applied the principles established in *Waugh & Waugh* and other relevant authorities, which require more than mere apprehension or concern to justify injunctive relief. The Court found that the husband had not presented sufficient evidence to demonstrate a danger of dissipation or a risk that his claim could not be satisfied. Consequently, the husband's application for injunctions was dismissed. The Court also declined to grant expedition, noting the case was not unusual, valuations were incomplete, the tax audit was ongoing, and the businesses involved were susceptible to the economic impact of COVID-19, suggesting that a delay might even be beneficial for asset valuation. The matter was referred back to the Listing Coordinator for further case management, with no order as to costs.

Orders