Shuren & Fang (No 4)
[2023] FedCFamC1F 934
•27 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shuren & Fang (No 4) [2023] FedCFamC1F 934
File number MLC 3815 of 2023 Judgment of WILSON J Date of judgment 27 October 2023 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – application made ore tenus on short notice for interlocutory injunction – husband ordered to return property and business records in his possession power and control Legislation Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Shuren & Fang (No 3) [2023] FedCFamC1F 906
Division Division 1 First Instance Number of paragraphs 11 Date of hearing 27 October 2023 Place Melbourne Counsel for the applicant Mr L. Glick KC Solicitor for the applicant Australian Legal Advisory Centre Counsel for the first respondent Mr A. Baker Solicitor for the first respondent Aston Legal Group Counsel for the second respondent Mr L. Glick KC Solicitor for the second respondent Australian Legal Advisory Centre Solicitor for the third respondent No appearance ORDERS
MLC 3815 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS SHUREN
Applicant
AND MR FANG
First Respondent
B PTY LTD
Second Respondent
C PTY LTD
Third Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
27 OCTOBER 2023
THE COURT ORDERS THAT –
1.By 4pm today the husband must return to the second respondent Motor Vehicle 1 identification number ….
2.By 5pm today the husband must provide the keys to Motor Vehicle 2 identification number … to the husband’s solicitors for delivery by 5:30pm today to the wife’s solicitors.
3.By 5pm today the husband must return to the second respondent the computer as recorded in exhibit 9 tendered this day.
4.By 12pm on Monday 30 October 2023 the husband must produce to his solicitors for delivery to the wife’s solicitors all employment records including payroll, superannuation and PAYG tax returns for Mr V and Mr Y in the husband’s possession, power and control.
5.By 12pm on Monday 30 October 2023 the husband must produce all documents in his possession, power and control with respect of persons described as employees in the affidavit of Mr V made 7 June 2023 and at paragraph 10 of the husband’s affidavit made 27 September 2023 as well as in the affidavit of Mr Y made 7 June 2023 as referred to in exhibit 6 tendered this day and in exhibit 7 tendered this day.
6.The costs of and incidental to this application are reserved.
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 a pseudonym of Shuren & Fang has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
Last Friday, 20 October 2023, I delivered ex tempore reasons in the latest rash of skirmishing in this litigation, Shuren & Fang (No 3).[1] In accordance with orders previously made, the husband filed his affidavit in which were recorded his factual versions of events in this litigation made 24 October 2023. Yesterday, 26 October 2023, the wife sought the urgent listing of an application, despite the fact that a contested inter partes application had been fixed for 3 November 2023. The husband’s applications are returnable on that day in which he seeks orders for the discharge of the orders made on 17 and 19 October 2023.
[1] [2023] FedCFamC1F 906.
Consonant with the philosophy of the Major Complex Financial Proceedings List, I listed what the wife described as an urgent application for hearing before me today, 27 October 2023 at 10am. Once again, I had the benefit of fine advocacy from Mr Glick KC for the wife and Mr A. Baker of counsel for the husband. Yesterday, a notice of appearance was filed by B Pty Ltd. Mr Glick also represented B Pty Ltd on the hearing of today’s application. After debate, it emerged that the wife and B Pty Ltd brought an application made ore tenus for various orders. Those orders were –
(a)for the return to B Pty Ltd of a motor vehicle said to be owned by B Pty Ltd, Motor Vehicle 1, the vehicle identification number being …;
(b)for the return of keys to a second motor vehicle, Motor Vehicle 2 station wagon, the identification number being …;
(c)orders for the return of a computer, the subject of exhibit 9 tendered this day, being the computer, the purchase documentation of which includes the words “[B Pty Ltd] and […], half-half”;
(d)by 4.15pm today the husband produce to the husband’s solicitors for delivery to the wife’s solicitors all employment records, including payroll, superannuation and PAYG tax returns for Mr V and Mr Y in the husband’s possession, power and control; and
(e)by 12pm on 30 October 2023 the husband produce all documents in his possession, power and control in respect of persons described as employees in the affidavit of Mr V made 7 June 2023 and at paragraph 10 of the husband’s affidavit made 27 September 2023 as well as in the affidavit of Mr Y made 7 June today as referred to in exhibit 6 tendered this day being a bank statement from J Bank for the period 7 May 2022 to 15 July 2023 and referred to in exhibit 7 tendered this day being a B Pty Ltd staff payslip dated 6 August 2023 for Mr Y.
In court today, Mr Glick tendered a collection of documents that were adduced in pursuance of the business record provisions of the Evidence Act1995 and without objection, although Mr Baker contended that his client had been caught on the hop on this application as it had not been made on notice or on proper affidavit material, so he said. Mr Glick submitted that this application was properly brought ore tenus, a matter which seemed to be correct, especially as the husband was before me twice on 17 October 2023, on 20 October 2023 and again today. It seemed to me that the husband was being unrealistic if he took the view that he was unaware that the wife and B Pty Ltd were persisting in their application for the return of property belonging to B Pty Ltd.
It must not be overlooked that the husband has been removed from the office of director of B Pty Ltd. I was informed that he is not an employee of B Pty Ltd. The husband currently holds in his possession and control two motor vehicles, Motor Vehicle 2 and the other, Motor Vehicle 1. The husband also has in possession a computer that B Pty Ltd asserts is owned by B Pty Ltd. On that computer B Pty Ltd contends is employment information relevant to B Pty Ltd’s employees. Mr Glick submitted that B Pty Ltd owns the two motor vehicles that are now held in the possession of the husband and that B Pty Ltd also owns the computer also held in the husband’s possession. B Pty Ltd wants its property back.
Mr Baker argued that the ownership of the cars and the computer is in dispute. Mr Baker offered an undertaking on behalf of his client that the husband would not dispose of the vehicles pending the hearing and determination of the contested interlocutory application on 3 November 2021. So far as documentation about employees was concerned, Mr Baker submitted that the husband’s position was that all relevant documentation had been provided by him. Mr Baker submitted that, while he was bereft of full and exhaustive instructions on point, the husband maintained that B Pty Ltd did not employ staff but rather that Z Pty Ltd, a company owned and controlled by the husband provided personnel to B Pty Ltd on a particular basis to enable B Pty Ltd to undertake its tasks.
I asked Mr Baker how that contention aligned with the documents exhibited this day that showed various staff as being employees of B Pty Ltd on public records submitted by way of compliance with regulatory requirements. Mr Baker conceded that an inconsistency emerged in that factual scenario. In reply, Mr Glick submitted that the husband’s undertaking was valueless. He said B Pty Ltd as the trustee of a hybrid trust brings its application for the return of the trust’s property. Mr Glick said that the motor vehicle registration documents themselves reveal that the husband himself procured the registration of B Pty Ltd and that B Pty Ltd is the registered owner. He said the authorities make clear (Australian Broadcasting Corporation v O’Neill)[2] that an injunction of the sort sought by the wife is to maintain the status quo and that the status quo is maintained by returning B Pty Ltd’s property to it and that a full inter partes interlocutory fight can be waged on 3 November 2023.
[2] (2006) 227 CLR 57.
Mr Glick submitted that a strong prima facie case had been disclosed in relation to B Pty Ltd’s ownership of two motor vehicles. He submitted that B Pty Ltd’s ownership was revealed by exhibit 3, which contained reference to Motor Vehicle 2 in B Pty Ltd’s 2020 annual report. He said evidence of B Pty Ltd’s ownership of Motor Vehicle 2 was disclosed in B Pty Ltd’s 30 June 2022 tax return, which was exhibit 4. He said the VicRoads certificate of registration of both vehicles in B Pty Ltd’s name appeared in exhibit 5. So far as details of B Pty Ltd’s employees were concerned, Mr Glick submitted that the J Bank statements, exhibit 6, showed payments to B Pty Ltd’s employees over a period 5 May to July 2023, and that exhibit 7 showed Mr Y’s pay from B Pty Ltd for the period of August 2023.
So far as the computer being owned in B Pty Ltd’s name was concerned, Mr Glick said exhibits 8 and 9 proved the issue, as did exhibit 10. The husband challenged that B Pty Ltd and the wife had made out a prima facie case for the return of the vehicles and the computer or for the employee records. Yet he offered no evidence in support of that challenge. I take the view that the husband has taken possession of and retains possession of items owned by B Pty Ltd, namely, two motor vehicles and one computer. Those must be returned by him to B Pty Ltd. A full fight will be held on 3 November 2023 to investigate the husband’s assertion that he owns those three items. Until then, the status quo is best preserved by the return of the two cars and computer to B Pty Ltd.
So far as the details of employees are concerned, I take the view that the husband must give those details by 12pm on Monday, 30 October 2023. He asserts Z Pty Ltd employs those people. He should say why. Those persons are on B Pty Ltd’s listing of employees in documents lodged publicly by B Pty Ltd.
ORDERS
I therefore make the following orders –
(a)by 4pm today, the husband must return to B Pty Ltd Motor Vehicle 1, identification number …;
(b)by 5pm today, the husband must provide the keys to Motor Vehicle 2, the identification number is …, to the husband's solicitors for delivery by 5.30pm today to the wife's solicitors;
(c)by 5pm today, the husband must return to B Pty Ltd the computer, as recorded in exhibit 9 tendered this day;
(d)by 12pm on Monday, 30 October 2023, the husband must produce to his solicitors for delivery to the wife's solicitors all employment records, including payrolls, superannuation and PAYG tax records, for Mr V and Mr Y in the husband's possession, power and control;
(e)by 12pm on Monday, 30 October 2023, the husband must produce all documents in his possession, power and control in respect of persons described as employees in the affidavits of Mr V made 7 June 2023, and at paragraph 10 of the husband's affidavit made 27 September 2023, as well as in the affidavit of Mr Y made 7 June 2023, as referred to in exhibit 6 tendered this day, and exhibit 7 tendered this day;
(f)I reserve the costs of and incidental to this application; and
Otherwise, I adjourn all further interlocutory applications to 3 November 2023.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 27 October 2023