Ruan & Chui
[2022] FedCFamC1F 853
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ruan & Chui [2022] FedCFamC1F 853
File number(s): SYC 4113 of 2018 Judgment of: CHRISTIE J Date of judgment: 7 November 2022 Catchwords: FAMILY LAW – PROCEDURE AND PRACTICE - SUBPOENA OBJECTIONS – Where the wife asserts that four out of six subpoenae have not been complied with – Where the husband withdraws his objection to the subpoenae issued – Where compliance with the subpoenae is ordered Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 4 November 2022 Place: Sydney Applicant: Litigant in person Solicitor for the Respondents: Ms Zhang, Sophie Zhang Lawyers ORDERS
SYC 4113 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RUAN
Applicant
AND: MR CHUI
First Respondent
MS LIN
Second Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
7 November 2022
THE COURT ORDERS THAT:
1.The parties have leave to inspect and copy documents returned on subpoena by:
(a)Commonwealth Bank of Australia; and
(b)D Bank;
on the condition that the parties destroy or return the copies to the registry at the conclusion of the proceedings.
2.The proper officer of E Pty Ltd is to comply with the subpoena filed 1 August 2022, such compliance to occur on or before 4.00 pm on 18 November 2022.
3.The proper officer of F Pty Ltd is to comply with the subpoena filed 1 August 2022, such compliance to occur on or before 4.00 pm on 18 November 2022.
4.The proper officer of G Group is to comply with the subpoena filed 1 August 2022, such compliance to occur on or before 4.00 pm on 18 November 2022.
5.The proper officer of National Bank of Australia is to comply with the subpoena filed 1 August 2022, such compliance to occur on or before 4.00 pm on 18 November 2022.
6.The wife is directed to serve a copy of these orders on the subpoenaed parties by 4.00 pm on 9 November 2022.
7.The wife be granted liberty to relist this matter in the event of non-compliance with any of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ruan & Chui has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an interlocutory application dealing with objections to subpoenae.
The applicant in the proceedings is Ms Ruan (“the wife”). The wife acts on her own behalf in these proceedings.
The first respondent is Mr Chui (“the husband”). The husband is represented in the proceedings.
The second respondent is Ms Lin (“the second respondent”). The second respondent is the mother of the husband and is represented by the same firm of solicitors who act for the husband in these proceedings.
Background
These are financial proceedings between the husband and the wife at the conclusion of their relationship. At the heart of these proceedings are the wife’s assertions that the husband has directed funds which ought to have formed part of the matrimonial asset pool away from himself and deposited them with persons or entities, in particular family members, in order to, the wife asserts, take them outside the reach of any court order.
The wife has issued a number of subpoenae with a view to making good her claims about monies being paid to the family members of the husband.
The wife relied on a decision by the Administrative Appeals Tribunal (“the AAT”) regarding an assessment of the parties’ child support dispute, attached to her written submissions. The AAT assessed the husband’s claim that his sister, Ms J (“Ms J”), is the director of G Group and F Pty Ltd and that he has no interest in those companies. The AAT found that the husband and his sister had an artificial arrangement where Ms J holds the companies in her name while the husband arranges the day to day operations of the business. Additionally, the tribunal found that the husband had not disclosed his financial resources in F Pty Ltd and the arrangements in place between his mother and his sister in this regard.
These facts have not been contested at an interim level. However, such evidence makes reasonably plain the fact that the wife is within her rights to contend that the husband may be using his family members to hide his income and/or assets is a relevant issue in these proceedings. At the interim hearing the wife told the Court she requires disclosure to be made in order to support her claims. That evidence can be tested at the final hearing commencing 27 February 2023.
It is in this context that the wife seeks the following subpoenae as outlined below.
Subpoenae
G Group
On 1 August 2022 the wife caused to be issued a subpoena addressed to the Proper Officer, G Group. That subpoena sought documents as follows:
1.a copy of this subpoena
2.a copy of all employment contracts and business contracts signed by [Mr Chui] (DOB: […]), [Ms Ruan] (DOB: […]), [Ms Lin] (DOB: […]), [Ms J] (DOB: […]) [E Pty Ltd] (ABN […]) and [F Pty Ltd] (ABN […]) from January 2015 to the present date.
3.a copy of any and all correspondence, including but not limited to emails, letters, memos, written records of telephone conversations and WeChat text messages in relation to the employment contracts and business contracts signed by [Mr Chui] (DOB: […]), [Ms Ruan] (DOB: […]) and [Ms Lin] (DOB: […]), [Ms J] (DOB: […]), E Pty Ltd (ABN […]) and F Pty Ltd (ABN […]) from January 2015 to the present date.
4.a copy of any and all statement records for each sales of property, commissions, referral fees, tax invoice or such other document however described, to [Mr Chui] (DOB: […]), [E Pty Ltd] (ABN […]) and [F Pty Ltd] (ABN […]), [Ms Lin] (DOB: […]) and [Ms J] (DOB: […]) from an officer or employee of [G Group] and associated Companies or Businesses from January 2015 to present date.
5.a copy of any and all bank deposit records for each payment of salary, commissions, referral fees, tax invoice or such other document however described, to [Mr Chui] (DOB: […]), [Ms Lin] (DOB: […]) and [Ms J] (DOB: […]) [sic], [Mr M] , [Mr H], [Ms K], [Mr L], [E Pty Ltd] (ABN […]) and [F Pty Ltd] (ABN […]) from an officer or employee of [G Group] and associated or related Companies or Businesses from January 2015 to present date.
6.a copy of any and all bank deposit records for each payment of salary, commissions, referral fees, tax invoice or such other document however described, to the NAB Bank in the name of [E Pty Ltd] (ABN […]) with BSB number: […01] and account number: […65] from an officer or employee of [G Group] and associated or related Companies or Businesses from January 2015 to present date.
7.[E Pty Ltd], Copies of bank statements from January 2015 to present date, copies of Annual Company Reports for financial years 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022 showing signature of Director and Accountant.
8.[F Pty Ltd], Copies of bank statements from January 2015 to present date, copies of Annual Company Reports for financial years 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022 showing signature of Director and Accountant.
9.[G Group] and associated or related Companies or Businesses, Copies of all payments made to [Mr Chui] and [Ms Ruan] containing the name and ABN of the registered proprietor, showing pay date and amount from January 2015 to present. Copies of all documents relating to payments made by [Mr Chui] to [G Group] and associated or related Companies or Businesses, on behalf of clients for the period January 2015 to present date and to include pay date and amount.
10.Any documents showing [Mr Chui] or other family members of [Mr Chui] as a legal partner in [G Group] and associated or related Companies or Businesses from January 2015 to present date.
The G Group is owned by Ms J. The exact operations of the company were not available on the evidence however the wife, through her submissions, told the Court that the husband, the husband’s sister and the husband’s mother held interest in this company. In order to assess her position about this arrangement, evidence is required by way of disclosure.
On 11 August 2022 the husband’s lawyers filed a Notice of Objection to the subpoena addressed to G Group. The objection stated that the husband objected to the subpoena both to production and inspection on the basis that:
1. The subpoena is a fishing expedition.
2. The subpoena constitutes a bare attempt at discovery.
3. The subpoena does not have a legitimate forensic purpose in relation to issues in the proceedings.
4. The documents requested are not relevant to a fact in issue in the proceedings.
Those objections were repeated as regards inspection and/or copying.
The husband was directed to file any submissions in support of the objection. He failed to do so. At the hearing he was represented by a new firm of solicitors who withdrew his objection to this and all the subpoenae.
The objection was withdrawn but the documents have not been produced.
National Australia Bank
On 1 August 2022 the wife caused to be issued to the Proper Officer, National Australia Bank (“NAB”) a subpoena seeking:
1.A copy of this subpoena;
2.a copy of all statements for each savings, term deposit, debit, credit, mortgage, offset, line of credit, credit card or such other account however described, from 2009 to date for any accounts with NAB Bank held by [Mr Chui] (DOB: […]); [Ms Lin] (DOB: […]); [Ms J] (DOB: […]) , [Mr M] ,[Mr H], [Ms K] and [Mr L], whether held solely or jointly with any other person or upon which the [Mr Chui] has (or has held) authority to operate;
3.a copy of all statements for each savings, term deposit, debit, credit, mortgage, offset, line of credit, credit card or such other account however described, from 2009 to date for any accounts with NAB Bank in the name of [F Pty Ltd] (ACN […]) or any company registered under their name.
4.a copy of all statements for each savings, term deposit, debit, credit, mortgage, offset, line of credit, credit card or such other account however described, from 2009 to date for any accounts with NAB Bank in the name of [E Pty Ltd] (ACN […]) Account Number: […65] or any company registered under their name.
5.A copy of all records identifying any safety deposit boxes held by or on behalf of [Mr Chui], [Ms Lin] & [Ms J] and [Mr H], [Mr M].
6.a copy of any and all bank deposit records for each payment of salary, commissions, referral fees, tax invoice or such other document however described, to [Mr Chui] (DOB: […]), [Ms Lin] (DOB: […]) and [Ms J] (DOB: […]), [Mr M], [Mr H], [Ms K], [Mr L], [E Pty Ltd] (ACN […]) and [F Pty Ltd] (ABN […]) from an officer or employee of [G Group] and associated or related Companies or Businesses from January 2015 to present date.
On 11 August 2022 the husband filed a Notice of Objection objecting to the subpoena. The basis of that objection was the same as that detailed above in respect of the G Group.
As outlined above the husband withdrew this objection at court on 4 November 2022. Somewhat surprisingly, it appears as though NAB have not complied with the subpoena issued.
D Bank
On 1 August 2022 the wife caused to be issued a subpoena addressed to D Bank. The subpoena to D Bank sought documents as set out as follows:
1.a copy of this subpoena;
2.a copy of all statements for each savings, term deposit, debit, credit, mortgage, offset, line of credit, credit card or such other account however described, from 2009 to date for any accounts with [D Bank] held by [Mr Chui] (DOB: […]); [Ms Lin] (DOB: […]); [Ms J] (DOB: […]) , [Mr M] ,[Mr H], [Ms K] and [Mr L], whether held solely or jointly with any other person or upon which the [Mr Chui] has (or has held) authority to operate;
3.a copy of all statements for each savings, term deposit, debit, credit, mortgage, offset, line of credit, credit card or such other account however described, from 2009 to date for any accounts with D Bank in the name of F Pty Ltd (ACN […]) or any company registered under their name.
4.a copy of all statements for each savings, term deposit, debit, credit, mortgage, offset, line of credit, credit card or such other account however described, from 2009 to date for any accounts with [D Bank] in the name of [E Pty Ltd] (ACN […]) Account Number: […65] or any company registered under their name.
5.A copy of all records identifying any safety deposit boxes held by or on behalf of [Mr Chui], [Ms Lin] & [Ms J] and [Mr H], [Mr M].
6.a copy of any and all bank deposit records for each payment of salary, commissions, referral fees, tax invoice or such other document however described, to [Mr Chui] (DOB: […]), [Ms Lin] (DOB: […]) and [Ms J] (DOB: […]), [Mr M], [Mr H], [Ms K], [Mr L], [E Pty Ltd] (ACN […]) and [F Pty Ltd] (ACN […]) from an officer or employee of [G Group] and associated or related Companies or Businesses from January 2015 to present date.
On 11 August 2022 the husband objected to the subpoena to D Bank and the details of the objection were the same as those set out above.
On 4 November 2022 the husband withdrew his objection to the subpoena. Documents have been produced and I grant leave to all parties to inspect and copy those documents.
E Pty Ltd
On 1 August 2022, the wife cause to be issued a subpoena addressed to E Pty Ltd. That subpoena sought documents as follows:
1. a copy of this subpoena;
2. a copy of any and all Tax Returns for the financial years ending 30 June 2019, 30 June 2020, 30 June 2021 and 30 Jun 2022.
3. a copy of any and all Business Activity Statements for the period 1 January 2019 to present.
4. a copy of any and all Financial Statements (including Balance Sheets, Profit and Loss accounts, Cash Flow Statements, Depreciation Schedules and all Ledgers) for the financial years ending 30 June 2019, 30 June 2020, 30 June 2021 and 30 June 2022.
5. A copy of any and all Memorandum and Articles of Associate, Trust Deeds, Partnership Agreements, Shareholder Agreements and Constitutions, where applicable and any amendments to those agreements including resolutions passed.
6. a copy of any and all Bank Statements for all Bank Accounts whether held solely in the name of a business, partnership, company or trust or jointly with any third party or entity for the period 1 January 2019 to present.
7. a copy of any and all Bank Statements for all Loan Accounts, Investment Loan Accounts, Commercial or Business Loan Accounts, Loan Facilities, Credit Cards, Lines of Credit and vehicle or equipment finance whether held solely in a business, partnership, company or trust or jointly with any third party or entity for the period 1 January 2019 to present.
8. a copy of any and all Contracts of Insurance, Policy documents and Certificates of Currency for Insurance taken out in respect of any contents, plant, equipment, stock, supplies, inventory or other assets for the period 1 January 2019 to present.
9. a copy of any and all Statements or other documents evidencing the holding details of any Share Portfolio or investments for the period 1 January 2019 to present.
10. a copy of all statements received from [G Group] [E Pty Ltd] held solely or jointly with any other person.
On 11 August 2022 the husband filed a Notice of Objection to the subpoena. The grounds of the objection were as set out above.
The wife alleges that the husband directed funds, which would otherwise have been available to him or to both parties, to his sister to defeat the wife’s claim.
At court on 4 November 2022 the husband withdrew his objection. I will order that the subpoenaed party comply with the terms of the subpoena.
F Pty Ltd
On 1 August 2022 the wife caused to be issued a subpoena addressed to F Pty Ltd. That subpoena sought documents as follows:
1.a copy of this subpoena;
2.a copy of any and all Tax Returns for the financial years ending 30 June 2019, 30 June 2020, 30 June 2021 and 30 Jun 2022.
3.a copy of any and all Business Activity Statements for the period 1 January 2019 to present.
4.a copy of any and all Financial Statements (including Balance Sheets, Profit and Loss accounts, Cash Flow Statements, Depreciation Schedules and all Ledgers) for the financial years ending 30 June 2019, 30 June 2020, 30 June 2021 and 30 June 2022.
5.A copy of any and all Memorandum and Articles of Associate, Trust Deeds, Partnership Agreements, Shareholder Agreements and Constitutions, where applicable and any amendments to those agreements including resolutions passed.
6.a copy of any and all Bank Statements for all Bank Accounts whether held solely in the name of a business, partnership, company or trust or jointly with any third party or entity for the period 1 January 2019 to present.
7.a copy of any and all Bank Statements for all Loan Accounts, Investment Loan Accounts, Commercial or Business Loan Accounts, Loan Facilities, Credit Cards, Lines of Credit and vehicle or equipment finance whether held solely in a business, partnership, company or trust or jointly with any third party or entity for the period 1 January 2019 to present.
8.a copy of any and all Contracts of Insurance, Policy documents and Certificates of Currency for Insurance taken out in respect of any contents, plant, equipment, stock, supplies, inventory or other assets for the period 1 January 2019 to present.
9.a copy of any and all Statements or other documents evidencing the holding details of any Share Portfolio or investments for the period 1 January 2019 to present.
10.a copy of all statements received from [G Group] [E Pty Ltd] held solely or jointly with any other person ;
As per the original.
On 11 August 2022 the husband filed a Notice of Objection to the subpoena. The grounds of the objection were as set out above.
At court on 4 November 2022 the husband withdrew his objection. I will order that the subpoenaed party comply with the terms of the subpoena.
Commonwealth Bank of Australia
On 1 August 2022 the wife caused to be issued a subpoena addressed to the Commonwealth Bank of Australia. That subpoena sought documents:
1.a copy of this subpoena.
2.For the years of 2007 to the present, statements of any bank account:
3.3. (1) in the name of or controlled by [Mr N] (date of birth […], residential address [O Street, Suburb B NSW] ), whether solely in the name of or controlled by [Mr N] or jointly with another person; or
4.4. (2) in respect of which [Mr N] is or was a signatory
As per the original.
On 11 August 2022 the husband filed a Notice of Objection to the subpoena addressed to the Commonwealth Bank of Australia. The grounds of objection were those set out above.
The husband withdrew his objection at court on 4 November 2022. I will order that the parties have leave to inspect and copy the document produced.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 7 November 2022
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