FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sun & Yeng (No 2) [2023] FedCFamC1F 854
File number SYC 8025 of 2022 Judgment of WILSON J Date of judgment 11 October 2023 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – major issue in the litigation is the source of AUD $5 million claimed by the husband’s mother – money emanating from Country B – allegations that the AUD $5 million may have been illegally obtained – ruling during the running of the trial – husband’s mother complaining that no probative value is served by examining the source of funds by which AUD $5 million is transferred from Country B to Australia – held, cross-examination is perfectly permissible.
FAMILY LAW – PRACTICE & PROCEDURE – applicant’s application for adjournment to issue a subpoena to migration authorities – application granted.
Legislation Family Law Act 1975 (Cth), s 79
Conveyancing Act1919 (NSW), s 66F
Gaming and Betting Act1912 (NSW)
Cases cited Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 186 CLR 622
Black v Freedman (1910) 12 CLR 105
Black & Kellner (1992) 15 Fam LR 343
Cao & Trong [2022] FedCFamC1F 754
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Gollan v Nugent (1988) 166 CLR 18
Gordon v Chief Commissioner of Police [1910] 2 KB 1080
In the Marriage of Biltoft (1995) 19 FamLR 82
In the Marriage of Kannis (2002) 30 Fam LR 83
In the Marriage of Monte [1986] FamCA 1
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1
Lamru Pty Ltd & Kation Pty Ltd (1998) 44 NSWLR 432
Nelson v Nelson (1995) 184 CLR 538
Pavey & Matthews v Paul (1987) 162 CLR 221
Paviello & Paviello [2022] FedCFamC1F 592
Russell v Wilson (1923) 33 CLR 538
Stanford v Stanford (2012) 247 CLR 108
Sun & Yeng [2023] FedCFamC1F 565
The Juliana (1822) 165 ER 1560
Division Division 1 First Instance Number of paragraphs 42 Date of last submission 4 October 2023 Date of hearing 25, 26, 27, 28 September 2023, 3 and 4 October 2023 Place Sydney Counsel for the applicant Mr L. Glick One of His Majesty’s Counsel with Mr J. Mellas of counsel Solicitor for the applicant Lander & Rogers Counsel for the first respondents Mr J. Lloyd of Senior Counsel with Mr G. Stapleton of counsel Solicitor for the first respondents Longton Legal Counsel for the second respondents Mr D. Brown One of His Majesty’s Counsel with Mr D. Edney of counsel2 Solicitor for the second respondents XR Consulting Pty Ltd ORDERS
SYC 8025 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS SUN
Applicant
AND MR YENG
First Respondent
MS HAU
Second Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
4 OCTOBER 2023
THE COURT ORDERS THAT
1.The applicant has leave to issue a subpoena to the Department of Home Affairs in relation to the second…
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CaseChat Overview and Summary
The court had to address several legal issues, including the admissibility of evidence regarding the source of the AUD $5 million and the appropriate exercise of discretion under section 79 of the Family Law Act 1975 (Cth). A key issue was whether it was permissible to cross-examine Ms Hau about the source of the funds, given allegations of illegality. Additionally, the court needed to determine the validity of an application for an adjournment to issue a subpoena to the Department of Home Affairs regarding the husband’s visa application.
The court found that cross-examining Ms Hau about the source of the AUD $5 million was permissible as it was relevant to the common law doctrine of money had and received. The court held that the examination of the source of funds was necessary to determine if it was unjust for Ms Hau to retain the money. The court also granted the application for an adjournment to issue the subpoena, finding it necessary to investigate the husband’s visa application in the context of the financial dispute. The court’s reasoning was grounded in the need to identify the legal and equitable interests of the parties, as well as the exercise of discretion in making financial orders under section 79 of the Family Law Act.
The final orders of the court included granting the applicant leave to issue a subpoena to the Department of Home Affairs regarding the husband’s visa application and adjourning the further hearing of the proceeding to resume the part heard trial. The court abridged all times for production in relation to the subpoena.
Orders
Orders of the court
SYC 8025 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN
MS SUN
Applicant
AND
MR YENG
First Respondent
MS HAU
Second Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
4 OCTOBER 2023
THE COURT ORDERS THAT
1. The applicant has leave to issue a subpoena to the Department of Home Affairs in relation to the second respondent husband’s visa application with all times for production abridged.
2. The further hearing of this proceeding is adjourned to 10:00am on 8 November 2023 for no longer than three days for the resumption of the part heard trial.
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In reply to Mr Brown KC's contentions, Mr Glick KC submitted that Ms Hau's propositions were misconceived. Mr Glick KC stepped through the logic of his contentions in the following manner –(a)in accordance with the principles adumbrated in Stanford v Stanford,[10] the first task of the Court is the identification of the legal and equitable interests of the parties;[10] (2012) 247 CLR 108. (b)here, Ms Hau raises a claim for the misappropriated funds, relying on the common law doctrine of money had and received in which it is relevant to investigate whether it is unjust for the recipient to retain the money allegedly had and received; (c)who must prove the requisite injustice is in issue in the money had and received claim; (d)it may become a proven fact that Ms Hau brought the money into Australia in a manner contrary to the law of Country B and if that becomes the fact, evidence of foreign law (the law of Country B relating to the removal of sums of or greater than a particular amount) may become relevant in which case an application to adduce foreign law may be applicable; (e)the propositions advanced on behalf of Ms Hau when relying on concepts of detinue and jus tertii are not on point;(f)even if Ms Hau contends that the misappropriated money was owned by her both legally and beneficially, the documentation from the Department of Immigration and Citizenship dated 15 October 2013 is addressed to Ms Hau's then-husband (that is to say, the husband's father) and it invited the husband's father to select the form of investment that he chose when investing AUD $5 million in Australia;(g)that letter was not addressed to Ms Hau;(h)Mr Glick KC rhetorically posed the question whether Ms Hau was the agent for a disclosed principle; (i)by Ms Hau baldly asserting that the money was her own did not lead to the conclusion that any part of the responsibility to repay the money should be attributed to the wife, or for that matter to the husband because the Court retains a discretion to be exercised judicially to ascribe to one or other of the husband or the wife the responsibility to repay it (that is, consonant with the holdings in Cao & Trong[11]);(j)it is wrong for a submission to be advanced on behalf of Ms Hau to contend that the skirmish between the husband and the wife does not necessarily draw into the debate any questions of the origin of the funds or the manner in which those funds were transmitted to Australia; (k)at a factual level, the source of the funds from Country B and the role of each party in this litigation necessarily underpins considerations relevant to the justice and equity of the making of an order under s. 79 of the Act;(l)the traceable proceeds of the money misappropriated from Ms Hau's account totals $2.2 million in the Suburb J properties, and it is no defence to a money had and received claim by raising Torrens system indefeasibility;(m)even if Ms Hau persuaded me that she is entitled to the full sum on her money had and received claim, in the exercise of the Court's discretion under s. 79 of the Family Law Act, it is nevertheless competent for me to conclude that the husband should pay the sum ordered to be paid to Ms Hau out of the amount awarded in the husband's favour;(n)if it is found that the husband's compliance with his disclosure duties was defective,[12] at one extreme, a Court addressing a s. 79 application is entitled to award 100% of the property pool in favour of the party not in default of his or her disclosure duties;[13] and (o)if Ms Hau succeeds on her common law claim to money had and received, she would become a creditor and, in accordance with principles espoused In the Marriage of Biltoft,[14] it is wholly discretionary whether the Court undertaking a s. 79 exercise orders the whole or part of the creditor’s claim to be met by each party equally, or whether the creditor’s claim is to be met from one or other of the parties, or if a finding is here made of the sort as was made in Nelson v Nelson[15] of illegality, then the Court may decline to lend its aid at all. [11] [2022] FedCFC1F 754.[12] Paviello & Paviello [2022] FedCFamC1F 592, 7.[13] In the Marriage of Monte [1986] FamCA 1; Black & Kellner (1992) 15 Fam LR 343; and In the Marriage of Kannis (2002) 30 Fam LR 83. [14] (1995) 19 FamLR 82.[15] (1995) 184 CLR 538.CONSIDERATION