FAMILY COURT OF AUSTRALIA
Tsiang & Wu [2021] FamCA 482
File number(s): SYC 1529 of 2016 Judgment of: ALTOBELLI J Date of judgment: 7 July 2021 Catchwords: FAMILY LAW – PROPERTY – practice and procedure – whether the matter be set down for a discrete hearing in relation to third party interests – application to bifurcate proceedings – complex property matters involving overseas entities, corporations and trusts – application to review consent orders pursuant to s 37A(10) of the Family Law Act 1975 – application for a discrete hearing refused – application dismissed – no order as to costs. Legislation: Family Law Act 1975 (Cth) ss 37A(10), 75, 79
Family Law Rules 2004 (Cth) rr 1.04, 1.12, 1.14, 10.13
Uniform Civil Procedure Rules 2005 r 28.2
Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Hickey & Hickey (2003) FLC 93-143; [2003] FamCA 395
Marley & Ormonde [2020] FamCA 1046
Southwell v Bennett [2010] NSWSC 1372
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Number of paragraphs: 33 Date of last submission/s: 21 April 2021 Date of hearing: 21 April 2021 Place: Sydney Counsel for the Applicant: Mr Richardson SC Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the First Respondent: Mr Todd Solicitor for the First Respondent: Broaden Legal Solicitor advocate for the Second and Third Respondents: Mr Yang Solicitor for the Second and Third Respondents: Juris Cor Legal Solicitor advocate for the Independent Children’s Lawyer: Mr Whelan Solicitor for the Independent Children’s Lawyer: Mark Whelan Lawyer ORDERS
SYC 1529 of 2016 BETWEEN: MR TSIANG
Applicant
AND: MS WU
First Respondent
MR CAO
Second Respondent
MR WU
Third RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
7 JULY 2021
THE COURT ORDERS THAT:
1.The Applicant’s application to list the relief sought in orders 1, 2 and 3 of the orders sought in his Second Further Amended Initiating Application filed 24 May 2019 for a discrete hearing, separately to the substantive proceedings, is dismissed.
2.The matter be listed for Final Hearing on 16 May 2022, with an estimated hearing time of 8 days.
3.The matter be listed for Mention on 17 August 2021 at 9.30am for the purpose of case management and making trial directions.
4.Within 28 days of the date of this order, the parties exchange and provide to my Associate by way of email a minute of proposed trial directions.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tsiang & Wu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR…
Continue reading Tsiang & Wu
Sign in free to access the full text
Details
- AGLC
- Tsiang & Wu [2021] FamCA 482
- Case
- [2021] FamCA 482
- Decision Date
CaseChat Overview and Summary
In the matter of *Tsiang & Wu*, Altobelli J of the Family Court of Australia considered an application by the Applicant (Mr Tsiang) to list certain relief sought in his Second Further Amended Initiating Application for a discrete hearing, separately from the substantive proceedings. The substantive proceedings involved an application under s 79A of the *Family Law Act 1975* (Cth) to review consent orders made on 22 March 2016, which divided assets valued at approximately $38.8 million. The property pool included significant commercial interests in China (referred to as the BB Companies) and substantial real estate holdings in Australia and China. The Applicant sought to bifurcate the proceedings to determine discrete issues relating to third-party interests in the BB Companies.
The primary legal issue before the Court was whether, pursuant to r 10.13 of the *Family Law Rules 2004* (Cth), the relief sought by the Applicant should be listed for a discrete hearing separately from the substantive proceedings. Rule 10.13 permits a party to apply for a decision on any issue if that decision may dispose of all or part of the case, make a trial unnecessary, make a trial substantially shorter, or save substantial costs. The Court was required to determine if the Applicant had satisfied the criteria outlined in this rule.
Altobelli J dismissed the Applicant's application, finding that it did not meet the requirements of r 10.13. The Court referred to numerous authorities, including *Southwell v Bennett* and the principles articulated by Lord Wilberforce and Lord Roskill in *Allen v Gulf Oil*, which caution against the preliminary determination of issues, particularly in complex cases involving detailed and overlapping factual findings. His Honour noted that such a bifurcation often does not lead to a quicker or cheaper resolution and can result in delay, extra expense, and the risk of inconsistent findings. The Court concluded that the proposed discrete hearing would not achieve the aims set out in r 10.13 and that the matter should proceed to a final hearing. The Court ordered that the matter be listed for a Final Hearing on 16 May 2022, with a preliminary mention for case management on 17 August 2021.
The primary legal issue before the Court was whether, pursuant to r 10.13 of the *Family Law Rules 2004* (Cth), the relief sought by the Applicant should be listed for a discrete hearing separately from the substantive proceedings. Rule 10.13 permits a party to apply for a decision on any issue if that decision may dispose of all or part of the case, make a trial unnecessary, make a trial substantially shorter, or save substantial costs. The Court was required to determine if the Applicant had satisfied the criteria outlined in this rule.
Altobelli J dismissed the Applicant's application, finding that it did not meet the requirements of r 10.13. The Court referred to numerous authorities, including *Southwell v Bennett* and the principles articulated by Lord Wilberforce and Lord Roskill in *Allen v Gulf Oil*, which caution against the preliminary determination of issues, particularly in complex cases involving detailed and overlapping factual findings. His Honour noted that such a bifurcation often does not lead to a quicker or cheaper resolution and can result in delay, extra expense, and the risk of inconsistent findings. The Court concluded that the proposed discrete hearing would not achieve the aims set out in r 10.13 and that the matter should proceed to a final hearing. The Court ordered that the matter be listed for a Final Hearing on 16 May 2022, with a preliminary mention for case management on 17 August 2021.
Orders
Orders of the court
SYC 1529 of 2016
BETWEEN:
MR TSIANG
Applicant
AND:
MS WU
First Respondent
MR CAO
Second Respondent
MR WU
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
7 JULY 2021
THE COURT ORDERS THAT:
1. The Applicant’s application to list the relief sought in orders 1, 2 and 3 of the orders sought in his Second Further Amended Initiating Application filed 24 May 2019 for a discrete hearing, separately to the substantive proceedings, is dismissed.
2. The matter be listed for Final Hearing on 16 May 2022, with an estimated hearing time of 8 days.
3. The matter be listed for Mention on 17 August 2021 at 9.30am for the purpose of case management and making trial directions.
4. Within 28 days of the date of this order, the parties exchange and provide to my Associate by way of email a minute of proposed trial directions.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
The question for the Court, therefore, is whether pursuant to r 10.13 this relief should be listed for a discrete hearing, separately to the substantive proceedings which, in accordance with the husband’s Second Further Amended Initiating Application filed 24 May 2019, is an application under s 79A of the Act, with consequential declarations and orders against the Second and Third Respondents.BACKGROUND It is relatively uncontentious that at the time the consent orders were made on 22 March 2016, the parties were seeking to divide assets the net value of which was approximately $38.8 million. The husband contends that the intention was that he received 46 per cent, or $17.9 million, and the wife $20.9 million, or 54 per cent. The property pool included a series of commercial interests in China consisting of partnerships and corporations, as well as substantial real estate holdings in Australia and China. In short, the wife retained the real estate in Australia and in China, and the husband was to receive the commercial interests in China. It is common ground that the consent orders were prepared by the husband’s solicitors, on his instructions. A number of definitions used in the orders become highly relevant. At definition A.35 the parties agreed: A.35 "The BB companies" means the company BB Co. Ltd and includes the following companies:A.35.1 R Ltd;A.35.2 U Ltd;A.35.3 S Ltd;A.35.4 T Ltd; A.35.5 G Partnership;A.35.6 V Partnership;A.35.7 W Ltd partnership. At order 18 of the consent orders the parties agreed:18. That in relation to the BB companies:18.1 The Wife forthwith transfer to the Husband all of her interest in the BB companies and resign from any office that she holds in the BB companies;18.2 That the Husband indemnify the Wife and keep her indemnified against all liability of the Wife arising as a consequence of the holding by her of any interest in the BB companies or the holding by her of any office in the BB companies excluding liability for personal income tax;and for the purpose of this Order:18,3 The Wife agrees to surrender any and all interest she may have in the BB companies and upon entering these Orders the Husband shall be absolutely entitled to the whole interest in the BB companies;18.4 The Husband shall forthwith indemnify the Wife and keep the Wife forever indemnified with respect to any or all liability of the Wife arising with respect to the BB companies;18.5 It is noted that in the event of the Husband requiring the Wife's consent to sell any or all of the BB companies the Wife will execute all such documents as may be necessary to give effect to such transaction and for the Husband to retain the entirety of the net proceeds of sale of the BB companies. For ease of reference in these reasons, the assets covered by the above orders will be described as the BB Companies, abbreviated to “BBC”. The Court notes that at order 18.1 the wife agreed to transfer to the husband ‘all of her interest in’ BBC. The husband contends that the BBC assets were to be received by him at an agreed value of $8.6 million.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Rule 10.13 of the Rules states: 10.13 Application for separate decisionA party may apply for a decision on any issue, if the decision may:(a) dispose of all or part of the case;(b) make a trial unnecessary;(c) make a trial substantially shorter; or(d) save substantial costs. The Applicant would need to satisfy the Court that making the separate decision proposed by him would achieve the matters set out in this rule. The Court was referred to a number of useful authorities, commencing with the decision of Associate Justice Hallan in the New South Wales Supreme Court in Southwell v Bennett [2010] NSWSC 1372. His Honour was determining the case pursuant to the provisions of r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) which, the Court notes, are similar to but not identical to r 10.13 of the Family Law Rules 2004 which is much more specific as to the criteria to be applied in determining an application for a separate decision. At [14] – [17], his Honour sets out the relevant legal principles as follows: [14] Rule 28.2 of the Uniform Civil Procedure Rules 2005 states:28.2 Order for decisionThe court may make orders for the decision of any question separately from any other question, whether before, at, or after, any trial or further trial in the proceedings.[15] I take the principles that apply in determining whether to make an order for the separate determination of a question under the rule to be:(a) The rule speaks of “questions” and not “issues” and does not differentiate between questions of fact, or law, or partly of fact and partly of law.(b) The judicial determination of a “question” must involve a conclusive, or final, decision based on concrete and established, or agreed, facts, for the purpose of quelling a controversy between the parties: Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334, at [45] and [51].(c) The rule permits the court to hear and determine the separate question at any point before, at, or after, any trial or further trial in the proceedings, rather than only as a preliminary question.(d) Whether such an order should be made is a matter for the court’s discretion, which discretion must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 669, at 670; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7].(e) As a general rule, the discretionary power to order separate determination of a question should be approached with caution: Perre v Apand Pty Ltd [1999] HCA 36 ; (1999) 198 CLR 180 at [436], per Callinan J; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1, at [168]–[170] per Kirby and Callinan JJ: Commonwealth Bank v Clune [2008] NSWSC 1125 at [6], per Johnson J; Bailey and Bailey v Director-General Department of Energy Climate Change and Water [2010] NSWSC 979 at [4] per Studdert AJ.(f) In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect.(g) Generally, all questions of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141–42; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14. If the court is to depart from that position, the party seeking the separate determination of a question must satisfy the court that it would be “just and convenient” for that order to be made: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]–[9], see also Energy Australia v Australian Energy Ltd [2001] FCA 1049.(h) While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(6)] per Einstein J.; Owners Corporation Sp 70672 v Trustees of Roman Catholic Church [2010] NSWSC 946 at [16] per Ball J.(i) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid: Idoport Pty Ltd v National Australia Bank Ltd; Tepko Pty Ltd v The Water Board at [168].(j) Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd at 142, per Giles CJ in Comm D; Parramatta Stadium Trust v Civil and Civic Pty Ltd; Century Medical v THLD (NSWSC, 27 August 1996, unreported).(k) Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial: ABB v Freight Rail [1999] NSWSC 1037.(l) Often, a separate question is heard on the basis of:(i) agreed statements of fact;(ii) a narrow point to be determined; and(iii) a hearing that is able to be conducted within a short time (or a short time relative to the total length if the hearing of the separate question were not to be dealt with).(m) Factors that tend to support the making of an order, include that the separate determination of the question may:(i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings: Tallglen v Pay TV Holdings;(ii) contribute to the settlement of the litigation (CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 602 per Kirby P at 607).(n) It may be appropriate to determine a separate question, even if it will not resolve all the issues, provided that there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided, or if the decision will obviate unnecessary and expensive hearings of other questions: City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784 ; (2009) 73 ACSR 86 at [27] per Rares J. The determination of the one question should enable a sensible reassessment of litigation risks, which is generally likely to encourage some form of settlement discussions.(o) Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial — possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: Reading Australia Pty Ltd v Australian Mutual Provident Society at [8]. There is always a risk of inconsistent findings arising from determination of separate questions.(p) Whilst the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties: TVW Enterprises Ltd v Duffy (Federal Court of Australia, 28 March 1985, unreported) Toohey J.(q) It is a relevant consideration to weigh the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place: TVW Enterprises Ltd v Duffy at pp 4–5.(r) Each case will have its own dynamics that dictate the relative importance of various factors to be considered in exercising the discretion conferred.(s) It is necessary that there be precision, both in formulating the question, and in specifying the facts upon which it is to be decided: Jacobson v Ross [1995] 1 VR 337 at 341[16] Finally, I should refer to Allen v Gulf Oil [1981] AC 1001, which seems to me, in the circumstances of the present case, to be not only sensible, but essential, to remember. Lord Wilberforce said, at p 1010H:… My Lords, I and other of your Lordships have often protested against the procedure of bringing, except in clear and simple cases, points of law for preliminary decision. The procedure indeed exists and is sometimes useful. In other cases, and this is frequently so where they reach this House, they do not serve the cause of justice. The present is such an example. The question as originally framed was clearly inept. It was recast by Kerr J. into an improved form. But both judges in the Court of Appeal found it either unintelligible or unanswerable: so I believe do some at least of your Lordships. The fact is that the result of the case must depend upon the impact of detailed and complex findings of fact upon principles of law which are themselves flexible. There are too many variables to admit of a clear-cut solution in advance.[17] Lord Roskill said at p 1022A:… The preliminary point procedure can in certain classes of case be invoked to achieve the desirable aim both of economy and simplicity. But cases in which such invocation is desirable are few. Sometimes a single issue of law can be isolated from the other issues in a particular case whether of fact or of law, and its decision may be finally determinative of the case as a whole. Sometimes facts can be agreed and the sole issue is one of law. But the present is not a case in which this procedure ought ever to have been adopted for the reasons stated by my noble and learned friend …… But I hope that your Lordships’ agreement so to treat it will not encourage others to invoke the preliminary point procedure in unsuitable cases, or lead those whose task it is to decide whether or not the trial of preliminary points should be ordered, to be other than extremely cautious before acceding to pleas for the making of such orders as a result of attractively advanced submissions founded upon pleas of supposed economy.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.