Tsiang & Wu and Ors

Case [2019] FamCAFC 128


FAMILY COURT OF AUSTRALIA

TSIANG & WU AND ORS [2019] FamCAFC 128

FAMILY LAW – APPEAL – PROPERTY – Where the primary judge dismissed the husband’s interim application seeking certain injunctions – Where property settlement orders were made by consent – Where the husband seeks to set aside the consent orders – Injunction sought by the husband restraining the wife from dealing with property – Injunction sought by the husband restraining the second and third respondents from disposing or encumbering interests in an overseas company – Where the injunctions sought against the wife and the second and third respondents were dismissed on the lack of an evidentiary basis – Whether there is a identified risk that the wife will dispose of the assets in Australia – Whether there is a risk that the second and third respondents may deal with particular overseas assets in a way that would defeat the husband’s possible judgment or claim to it – Balance of convenience favours the making of the injunction against the wife – Where the primary judge failed to take into account all of the evidence of the husband – Where the primary judge erred in refusing to make the injunction in relation to the wife – Where the primary judge was correct in refusing to grant an injunction against the second and third respondents – Appeal allowed in relation to the dismissal of the injunction against the wife – Discretion re-exercised – Orders made in accordance with husband’s Application in a Case – No costs order between the husband and the wife – Husband to pay costs of the second and third respondents.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Interlocutory order – Sufficient doubt attends the decision – Substantial injustice if leave to appeal refused – Leave to appeal granted.

Family Law Act 1975 (Cth) s 79A
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Blueseas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92-856; [1999] FamCA 745
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Mullen and De Bry (2006) FLC 93-293; [2006] FamCA 1380
Palmer v Parbery [2019] QCA 27
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729
Skyworks v 32 Drummoyne Road [2017] NSWSC 343
APPELLANT: Mr Tsiang
FIRST RESPONDENT: Ms Wu
SECOND RESPONDENT: Mr Wu
THIRD RESPONDENT: Mr Cao
FILE NUMBER: SYC 1529 of 2016
APPEAL NUMBER: EAA 6 of 2019
DATE DELIVERED: 31 July 2019
PLACE DELIVERED: Adelaide
PLACE HEARD: Sydney
JUDGMENT OF: Strickland, Ainslie-Wallace & Aldridge JJ
HEARING…

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Tsiang & Wu and Ors [2019] FamCAFC 128
Case
[2019] FamCAFC 128
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CaseChat Overview and Summary

In the case of Tsiang & Wu and Ors, the Court of Appeal considered an appeal against an interlocutory order made by a primary judge in family law proceedings. The husband, the appellant, sought to set aside consent orders regarding a property settlement and sought interim injunctions to prevent the wife and other respondents from dealing with certain properties. The primary judge dismissed the husband's application for injunctions, and the husband sought leave to appeal this decision. The appeal court found that there was sufficient doubt about the primary judge's decision and that a substantial injustice would result if leave to appeal was refused. Consequently, leave to appeal was granted.

The central legal issue before the Court of Appeal was whether the primary judge had erred in dismissing the husband's application for injunctions. The husband argued that there was a risk that the wife would dispose of assets in Australia and that the second and third respondents might deal with overseas assets in a way that would defeat his possible claim to them. The Court of Appeal held that the primary judge had failed to consider all the evidence presented by the husband and erred in dismissing the injunction against the wife. However, the primary judge's decision regarding the second and third respondents was upheld as correct. The appeal court re-exercised its discretion and made orders in accordance with the husband's application.

The Court of Appeal allowed the appeal in part, setting aside the primary judge's order that dismissed the husband's application for injunctions against the wife. The court granted an injunction to restrain the wife from dealing with specific Australian properties pending the determination of the substantive proceedings. The court also dismissed the husband's appeal in relation to the second and third respondents. Additionally, the court ordered that there be no costs between the husband and the wife but required the husband to pay the costs of the second and third respondents. The form of the orders was subject to entry in the court's records.

Orders

Orders of the court

1.

The Appellant Husband have leave to appeal order 3 made by the primary judge on 11 December 2018 to the extent that that order dismisses paragraphs 2 and 3 of the Appellant Husband’s Application in a Case filed on 16 August 2018.

2.

The appeal against order 3 made by the primary judge on 11 December 2018 to the extent that that order dismisses paragraphs 2 and 3 of the Appellant Husband’s Application in a Case filed on 16 August 2018 be allowed.

3.

Upon the amended undertaking as to damages given by the Appellant Husband and filed on 26 November 2018 order 3 made by the primary judge on 11 December 2018 be set aside to the extent that that order dismisses paragraphs 2 and 3 of the Appellant Husband’s Application in a Case filed on 16 August 2018.

4.

The application for leave to appeal and the appeal be otherwise dismissed.

and it is ordered

5.

That pending determination of the substantive orders sought by the Appellant Husband as against the Respondents as to financial matters arising in relation to G Partnership (Chinese Registration no. …) (“the substantive proceedings”), the First Respondent Wife be restrained from dealing with or further encumbering the following properties:-

a. H Street, Suburb J in the State of New South Wales … being all of the land comprised in Folio Identifier …;

b. K Street, Suburb L in the State of New South Wales … being all of the land comprised in Folio Identifier …;

c. M Street, Suburb N in the State of New South Wales … being all of the land comprised in Folio Identifier …; and

d. O Street, Suburb P in the State of New South Wales … being all of the land comprised in Folio Identifier ….

6.

That the Appellant Husband be permitted to lodge a Request at NSW Land Registry Services in respect of each of the properties identified in order (5) hereof pending a determination of the substantive proceedings on a final basis.

it is further ordered

7.

There be no order as to costs as between the Appellant Husband and the First Respondent Wife.

8.

The Appellant Husband pay the costs of the Second and Third Respondents of and incidental to the application for leave to appeal and the appeal fixed in the sum of $25,507.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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