Su & Jia
[2021] FedCFamC1F 245
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Su & Jia [2021] FedCFamC1F 245
File number(s): MLC 5093 of 2018 Judgment of: WILSON J Date of judgment: 6 December 2021 Catchwords: FAMILY LAW – alteration of property interests – treasury bond of $5 million invested as part of a visa application – applicant’s and respondent’s matrimonial disputes determined by a Chinese court – Chinese court making provision for that sum to go to the respondent – orders made – respondent entitled to treasury bond. Legislation: Borrowing and Investment Powers (Stock, Bonds and Debentures) Regulations 2007
Migration Act 1958 (Cth)
Cases cited: Su and Jia [2021] FamCA 544 Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 24 November 2021 Place: Melbourne Solicitor for the Applicant: Not applicable Counsel for the Respondent: Mr G. Combes of counsel Solicitor for the Respondent: K & C Law Group Pty Ltd ORDERS
MLC 5093 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SU
Applicant
AND: MR JIA
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
6 DECEMBER 2021
THE COURT ORDERS THAT:
1.The restraints imposed by the orders made by the Honourable Justice Macmillan on 18 December 2021 and by me on 11 December 2020 are hereby discharged.
2.The respondent may appropriate to his sole use and benefit the whole of the amount refunded upon the maturity of the treasury bond together with accumulated interest (if any).
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 pseudonyms Su & Jia is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
Pursuant to reasons handed down on 28 July 2021,[1] I made orders for the provision of evidence in relation the sum of $5 million held as bond …00 by Treasury Corporation of Victoria. The applicant contended that she was entitled to the benefit of that sum. The respondent argued that pursuant to orders already made in China that sum was the subject of orders that should be given effect. The effect of the respondent’s contention was that the bond sum, now matured and converted to cash standing to the respondent’s credit in a controlled money account but frozen until further order, is the respondent’s. He sought orders removing the restraint that prevents his unconditional appropriation of that sum for his own use and benefit.
[1] Su and Jia [2021] FamCA 544.
The relevant factual background, at least in overview, has already been narrated[2] rendering it necessary to canvass only the evidence that was filed pursuant to orders made on 28 July 2021. The additional evidence was made up of –
(a)the affidavit of a respondent affirmed 26 August 2021; and
(b)the affidavit of Mr M affirmed 30 August 2021.
[2] Ibid (at [4] to [25]).
Written submissions were also filed by the parties.
It is necessary to address the affidavit material filed by the respondent for its exposition in relation to the $5 million bond. The respondent gave direct evidence on point on the matters that now follow –
(a)he invested in a treasury bond of $5 million to satisfy the requirements of a visa subclass 188C under the Migration Act;
(b)he made that investment upon the nomination of a state government in Australia and in accordance with an investment duration specified by the visa subclass 188C;[3]
[3] The deponent exhibited a letter dated 8 September 2016 from the Department of Immigration and Border Protection recording the invitation to invest $5 million.
(c)the investment was governed by terms set out in Treasury Corporation of Victoria’s documentation;[4]
[4] The deponent exhibited a 13 page document entitled “Treasury Corporation of Victoria – Investing in Government Bonds of Victoria – Complying in Investments May 2024” (hereafter called “the investment terms”).
(d)pursuant to the investment terms, once a specified sum (not less than $1.5 million) was invested, it became a “government bond” (as defined) which was capable of withdrawal only in the circumstances set out in the investment terms;
(e)government bonds are inscribed stock issued under the Borrowing and Investment Powers (Stock, Bonds and Debentures) Regulations 2007;
(f)upon maturity, the principal is repaid to the registered holder;
(g)the duration of the investment was not less than four years but not greater than four years and 30 days;
(h)the respondent, the applicant and one other person, Mr N, applied for the bond; [5]
(i)an authorised agent, one Mr P, was also named on the application and he signed the relevant form;
(j)on 8 November 2016 the amount invested of $5 million was received by Treasury Corporation of Victoria;[6]
(k)by orders made by Macmillan J on 18 December 2018, the respondent was restrained from selling, transferring or disposing of the treasury bond until further order of the court;
(l)by further order made by consent, the respondent was further restrained from disposing, selling or transferring the investment amount; and
(m)since the maturity of the bond, the invested amount has remained in an account maintained by the respondent with Commonwealth Bank of Australia the number of which ends in …88.
[5] On the application documentation the respondent gave his occupation as managing director, the applicant gave her occupation as manager and Mr N gave her occupation as a student.
[6] The respondent’s exhibited a document entitled a “confirmation of inscription” recording that both the applicant and the respondent invested $5 million on 8 November 2016 maturing 8 November 2021.
In support of the respondent’s application he also relied on the affidavit of Mr M made 30 August 2021. Mr M is a legal practitioner who practises in the field of migration law. Relevantly distilled, Mr M deposed to the following –
(a)he was requested to provide information with respect to the $5 million investment amount in this case, once held by Treasury Corporation of Victoria;
(b)he made his affidavit based on his experience in his period of practising migration law;
(c)in order for a visa applicant to qualify for a subclass 188C visa, the visa applicant must make a qualifying investment;
(d)in this case the relevant visa application was submitted on 12 June 2015, that is to say, prior to the amendments operative on and from 1 July 2015;
(e)an investment made pursuant to the Business Significant Investor Stream is independent from a visa application and the redemption of a treasury bond is neither subject to nor conditional upon the outcome of a visa applicant’s visa application;
(f)even though the respondent did not proceed with his permanent residency visa subclass 888C application, that did not negate his entitlement to the return of the investment amount or the redemption of the treasury bond; and
(g)the refunding of the investment amount on 8 November 2010 to the respondent’s bank account is consistent with the manner in which treasury bonds mature.
The applicant did not make an affidavit subsequent to my reasons handed down on 28 July 2021. Instead, she prepared an email dated 29 September 2021 that I took to be her written submissions ordered on 28 July 2021. Relevantly distilled, she contended as follows –
(a)the respondent does not provide a cash flow from October 2016 to September 2021;
(b)the total value of the assets of the parties, so the applicant asserted, was $7,385,000 or thereabouts;
(c)the respondent has had the benefit of interest generated on the invested sum; and
(d)most of the major assets of the parties are located in Australia over which Chinese courts have no jurisdiction.
The applicant attached extracts of certain passages of the reasons of Chinese court mentioned in my earlier decision in this case. In particular she cited –
(a)reference in paragraph 6 of the Chinese court’s decision as follows –
“the defendant shall have the ownership of the $5,000,000 government bond and the house located at E Street, Suburb F, Melbourne, Australia”;
(b)reference elsewhere in the reasons of the Chinese court to the effect that the applicant in this case, described as the plaintiff in the Chinese court, can apply for one-time enforcement for all remaining payments if the respondent has any overdue payment;
(c)reference elsewhere in the reasons of the Chinese court to the effect that the respondent may deduct legal fees incurred by overdue withdrawal in the Australian litigation (meaning this litigation) from fees paid to the applicant if she withdraws the case after a particular date; and
(d)other reference in the reasons of the Chinese court to the respondent “maliciously concealing” (those were the words in the reasons) of annual interest by the respondent from the government bond, such interest said to be in the sum of RMB 2 million yuan yet the reasons further provide that “China’s relevant civil laws cannot directly divide overseas assets”.
Beyond making submissions about those matters, no direct evidence was advanced before me about interest (whether in the amount of RMB 2 million or any sum), any malicious concealing of any such interest or legal fees.
Accordingly, I am not persuaded on the balance of probabilities that the matters recorded in the applicant’s email dated 29 October 2021 are founded in evidence as opposed to their being unsupported assertions.
Written submissions were filed on behalf of the respondent. Those submissions mainly addressed the bond, the creation of it, the legal and regulatory framework governing treasury bonds and that upon maturity, the investment bond is currently held in the respondent’s bank account in respect of which orders currently restrain the respondent from dealing with those funds.
The respondent’s submissions further propounded that “pursuant to the Paper of Civil Mediation, the respondent is solely, completely and presently entitled to the $5 million irrespective of the respondent’s visa application”. The respondent sought orders discharging the injunction made by Macmillan J on 18 December 2021 and by me on 11 December 2020.
CONSIDERATION
Based on the foregoing, I accept the evidence adduced by and on behalf of the respondent in relation to the treasury bond. In particular, I accept that upon maturity, the invested sum was returned to the respondent’s account in which the sum is presently held. So far as interest on that amount is concerned, in my view the applicant did not discharge the evidentiary burden that fell to her to demonstrate that a precise amount of interest was not paid to the applicant nor am I persuaded that she was entitled to any interest that the respondent did not pay. Still less am I persuaded that the respondent maliciously concealed any such interest.
The Chinese court in its Civil Paper addressed in precise terms the disposition of the money related to the treasury bond. All of it was to go to the respondent. I see no scope to construe that as meaning that the applicant is entitled to any amount. I addressed that in paragraphs 19 and 24 of my earlier reasons.
In those circumstances it is appropriate to discharge the restraints imposed by the earlier orders made by Macmillan J and by me. In effect, that gives the respondent the entitlement to appropriate the whole of the amount refunded upon the maturity of the treasury bond.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 6 December 2021
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