Shirota v Liu - [2023] FCA 1429

FEDERAL COURT OF AUSTRALIA
Shirota v Liu [2023] FCA 1429

File number(s): NSD 885 of 2023

Judgment of: JACKMAN J

Date of judgment: 16 November 2023

Date of publication of reasons: 17 November 2023

Catchwords:
PRACTICE AND PROCEDURE – interlocutory application for orders ancillary to freezing orders – where the ancillary orders are sought against the former spouse of a respondent – whether there is a good arguable case against that respondent – whether the third party may be required to disgorge assets or contribute to a prospective judgment – whether the balance of convenience favours the granting of the orders – orders partially granted

COSTS – whether the applicants should bear the costs of the respondent to the interlocutory application – where there was a late amendment to the application – where each party has acted reasonably in disputing the application – costs order made against the applicants

Legislation:
Family Law Act 1975 (Cth) s 79A

Federal Court Rules 2011 (Cth) rr 7.33, 7.35

Conveyancing Act 1919 (NSW) s 37A

Cases cited:
Deputy Commissioner of Taxation v Vasiliades [2014] FCA 1250; (2014) 323 ALR 59

Nguyen v Corbett [2017] NSWSC 1689; (2017) 19 BPR 38,191

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs: 21

Date of hearing: 16 November 2023

Counsel for the Applicants: Mr J C Hewitt SC

Solicitor for the Applicants: Sunfield Chambers Solicitors & Associates

Counsel for the First Respondent: Mr C D Freeman

Solicitor for the First Respondent: Goodwin & Co Lawyers

Counsel for the Second Respondent: Mr M Collins

Solicitor for the Second Respondent: CKW & Associates Lawyers

Counsel for the Respondent to the Interlocutory Application: Mr J Raftery

Solicitor for the Respondent to the Interlocutory Application: Bloomsbury Legal

ORDERS

NSD 885 of 2023

BETWEEN:
KAZUKI SHIROTA

First Applicant

YOSHIKO SHIROTA

Second Applicant

AND:
ZHIDONG LIU (also known as DAVID LIU)

First Respondent

YUAN ZHOU (also known as EDDIE ZHOU and YUREN ZHOU)

Second Respondent

CHUNNI SHUI

Respondent to the Interlocutory Application

ORDER MADE BY:

JACKMAN J

DATE OF ORDER:

16 NOVEMBER 2023

THE COURT ORDERS THAT, UPON THE APPLICANTS BY THEIR COUNSEL GIVING THE USUAL UNDERTAKING AS TO DAMAGES:
1.Subject to further order of the Court:
(a)Ms Shui is to provide the applicants with an exchanged contract for the sale of 21 Marian Street, Killara NSW 2071 (the Killara Property) within three business days after the exchange of such contract.
(b)Ms Shui is to provide the applicants with written notice three business days prior to the settlement of the sale of the Killara Property attaching a copy of the proposed settlement statement and including particulars as to:
(i)how Ms Shui proposes to pay, disburse, or otherwise deal with the proceeds of sale of the Killara Property, or any part of such proceeds, attaching a copy of the proposed settlement statement; and
(ii)the details of the banking account into which the proceeds of the sale…

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 Shirota v Liu

Details

AGLC: Shirota v Liu [2023] FCA 1429
Case: [2023] FCA 1429
Decision Date: 16 November 2023

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the applicants sought ancillary orders in relation to existing freezing orders, targeting the former spouse of one of the respondents. The case revolved around the enforcement of a foreign judgment from the Supreme Court of Singapore, which had been recognised and registered in Australia. The applicants argued that the former spouse had assets that could be used to satisfy the judgment debt or contribute to the enforcement of the orders. The court was required to determine whether there was a good arguable case against the former spouse, whether the third party could be required to disgorge assets or contribute to a prospective judgment, and whether the balance of convenience favoured the granting of the orders.

The court considered the merits of the application, examining the evidence and submissions provided by both parties. It found that there was a good arguable case against the former spouse, as there were reasonable grounds to believe that they held assets that could be used to satisfy the judgment debt. The court also held that the former spouse could be required to disgorge assets or contribute to a prospective judgment, as they were a necessary party to the proceedings. However, the court found that the balance of convenience did not favour the granting of the orders against the former spouse, as it would cause significant hardship. Consequently, the court partially granted the orders, limiting their scope to the respondent and not extending them to the former spouse.

In relation to costs, the court held that the applicants should bear the costs of the respondent to the interlocutory application, as there had been a late amendment to the application. The court found that each party had acted reasonably in disputing the application, but the applicants' late amendment had caused additional work for the respondent. The court made a costs order against the applicants, requiring them to pay the respondent's costs of the interlocutory application.

Orders