Teo and Ung (No 2) - [2021] FamCA 153

FAMILY COURT OF AUSTRALIA

TEO & UNG (NO. 2)

[2021] FamCA 153

FAMILY LAW – INJUNCTION – anti-suit injunction – where the wife commenced proceedings in China seeking a divorce order and property orders – where previous orders made by this Court restraining the wife from proceeding with her application for a property division in the City N People's Court – where the wife seeks for this injunction to be discharged and that the parties’ respective applications for property settlement before this Court be stayed pending the finalisation of the parties’ family law proceedings in the Chinese Court – where the wife says the injunction should be discharged as there is new material evidence before the Court being the husband’s entitlement to compensation arising from his interest in property in China and that the Chinese proceedings have now been listed for trial – were the wife also says the injunction should be discharged as if she withdraws the Chinese proceeding the freezing orders made by the Chinese court will cease to have effect, endangering her ability to preserve the property pool – where in the alternative the wife seeks orders preserving the Chinese compensation payments and restraining the husband from leaving the Commonwealth – where it is found that the new evidence does not materially alter the basis on which the anti-suit injunction was made – where it is found that this Court is not a clearly inappropriate forum for the litigation of the parties’ dispute – where it is accepted that orders should be made to protect the enforceability of any order made by this Court – orders made requiring any compensation proceeds received by the husband to be placed in a joint bank account and that the husband be restrained from leaving the Commonwealth – wife’s application otherwise dismissed.

Family Law Act 1975 (Cth)

CSR Limited v Cigma Insurance Australia Limited (1997) 189 CLR 345
Skinner & Alfonso-Skinner [2020] FamCA 329
Teo & Ung [2020] FamCA 1066
Voth v Manildra Flour Mills Pty Ltd & Anor (1990) 171 CLR 538

APPLICANT:

Ms Ung

RESPONDENT:

Mr Teo

FILE NUMBER:

MLC

3974

2020

DATE DELIVERED:

23 March 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

16 February 2021; 23 March 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Tulloch

SOLICITOR FOR THE APPLICANT:

TNS Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Scriva

SOLICITOR FOR THE RESPONDENT:

Tao Jiang Lawyers

Orders

IT IS ORDERED THAT:

All extant interim applications be adjourned to the Judicial Duty List at 10.00 am on 8 June 2021 before the Honourable Justice McEvoy.
The husband forthwith to transfer or cause to be transferred the whole of the compensation proceeds received by him from the compulsory acquisition of:
(a)the property at S Street, L District, City N China; and
(b)any further property in China owned by him or in which he has an interest,
into a bank account in the joint names of the husband and the wife which shall require both signatures…

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 Teo and Ung (No 2)

Details

AGLC: Teo and Ung (No 2) [2021] FamCA 153
Case: [2021] FamCA 153
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by the wife, Ms Ung, to discharge an anti-suit injunction previously granted against her, which restrained her from proceeding with property division proceedings in China. The wife also sought a stay of the parties' property settlement applications before the Australian court pending the finalisation of the Chinese proceedings. The husband, Mr Teo, opposed these applications.

The court was required to determine whether new evidence, specifically concerning the husband's entitlement to compensation from the compulsory acquisition of a Chinese property, warranted the discharge of the anti-suit injunction and a stay of the Australian proceedings. The wife argued that this new material, along with the listing of the Chinese proceedings for trial and the potential loss of Chinese freezing orders if those proceedings were withdrawn, fundamentally altered the circumstances considered by the court when the injunction was initially granted. The wife also contended that Australia might be a clearly inappropriate forum for the dispute, given the significant value of Chinese assets.

Justice McEvoy found that the new evidence regarding the husband's compensation entitlement did not materially alter the basis upon which the anti-suit injunction was originally made. The court affirmed that Australia was not a clearly inappropriate forum for the litigation, noting that the Australian proceedings were commenced first, the parties held Australian assets, and the Australian court could provide a complete resolution of the dispute. While acknowledging that the husband could have been clearer in his initial evidence, the court concluded that this would not have led to a different decision regarding the injunction or the stay. However, accepting the wife's submissions that orders were needed to protect the compensation proceeds, the court ordered that any compensation received by the husband be placed in a joint bank account and that the husband be restrained from leaving the Commonwealth pending final property orders. The wife's application to discharge the injunction and stay the proceedings was otherwise dismissed.

Orders