Vang & Chung

Case [2021] FCCA 1673

FEDERAL CIRCUIT COURT OF AUSTRALIA

Vang & Chung [2021] FCCA 1673

File number(s): SYC 1433 of 2020
Judgment of: JUDGE MORLEY
Date of judgment: 9 July 2021
Catchwords: FAMILY LAW – where the husband seeks an order for security of costs – where a security of costs order would stifle the litigation – where there is a high degree of obfuscation in the husband’s evidence – full and frank disclosure – objections to subpoenas – where the husband’s father objects to a subpoena issued by the wife – where the husband’s father is a third party who is not unrelated to the proceedings – where the wife’s Objection to subpoena is really an application for conditions on inspection – where the husband’s objections to subpoenas are without merit – applicable law on objection to subpoena – applicable law on security for costs application
Legislation:

Family Law Act 1975 (Cth), ss 75, 79, 117, 121

Evidence Act 1995 (Cth), ss 131

Federal Circuit Court of Australia Act 1999 (Cth), ss 45

Federal Circuit Court Rules 2001 (Cth), rr 1.05, 4.05, 15A.02, 15A.03, 21.01, 24.02, 24.03

Family Law Rules 2004 (Cth), rr 15.18, 19.05

J.D. Heydon and M.J Leeming, Jacobs’ Law of Trusts, (8th ed, LexisNexis, 2016)
Cases cited:

Merribee Pastoral Industries Pty Ltd v Australia& New Zealand Banking Group Ltd (1998) 193 CLR 502

Luadaka & Luadaka (1998) FLC 92-830

J and J [1998] FLC 91-940

Adult Guardian and Mother’s Parents v B and Child’s Representative (2002) FLC 93-116

Hickey & Hickey and theAttorney General of the Commonwealth of Australia (2003) FLC 93-143

Evans & Rochford [2003] FamCA 314

JRS & KM (2005) FLC 93-223

MIL & EL (2005) FLC 32-244

A & Z (2006) FLC 93-257

Hearne v Street (2008) 235 CLR 125

Stanford & Stanford (2011) FLC 93-483

Bevan & Bevan (2013) FLC 93-545

Atkins & Hunt (Security for Costs) (2015) FLC 93-646

Sullivan & Tyler and Anor [2015] FamCAFC 167

Weng & Wah and Ors [2019] FamCAFC 242

Wai & Gwok [2019] FamCA 407

Lauer & Linn [2019] FCCA 1565

Vissell & Vissell [2021] FamCAFC 76

Newett & Newett [2021] FamCAFC 55

Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905;
Number of paragraphs: 285
Date of last submission/s: 16 June 2021
Date of hearing: 29 April 2021 and 16 June 2021
Place: Sydney
Counsel for the Applicant: Mr Cameron of Counsel
Counsel for the Respondent: Ms Spain of Counsel
Counsel for the Objector: Ms Kennedy of Counsel
Solicitor for the Applicant: Diamond Conway Lawyers
Solicitor for the Respondent: Barkus Doolan

ORDERS

SYC 1433 of 2020
BETWEEN:

MS VANG

Applicant
AND:

MR CHUNG

Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

9 JULY 2021

THE COURT ORDERS THAT:

Husband’s Application for Security for Costs

1.I dismiss the Husband’s Amended Application in a Case filed on 19 March 2021, that the Wife provide security for costs and consequential orders.

Subpoenas to Commonwealth Bank of Australia and Westpac Banking Corporation

2.In relation to:

(a)The…

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AGLC
Vang & Chung [2021] FCCA 1673
Case
[2021] FCCA 1673
Decision Date

CaseChat Overview and Summary

In the matter of *Vang & Chung*, heard by Morley J, the applicant wife and respondent husband were involved in proceedings concerning property adjustment under section 79 of the *Family Law Act 1975* (Cth). The wife sought an adjustment of the net asset pool, proposing 20 per cent for herself and 80 per cent for the husband. The proceedings also involved applications relating to security for costs and the production of documents via subpoenas.

The court was required to determine several legal issues, including whether the husband should be granted security for costs against the wife. Additionally, the court had to consider objections raised by the wife to subpoenas issued to Commonwealth Bank of Australia and Westpac Banking Corporation, and objections raised by the husband to subpoenas issued to Company B and Mr C, as well as a subpoena to National Australia Bank. The court also needed to determine the terms of access and inspection of documents produced by these subpoenas.

Morley J dismissed the husband's application for security for costs. The court also dismissed the wife's objections to the subpoenas issued to Commonwealth Bank and Westpac, granting her limited access to the produced material for the purpose of redacting identifying information, followed by the husband's inspection. The objections raised by the husband to subpoenas directed to Company B and Mr C were also dismissed, with the wife's solicitors granted leave to inspect and photocopy documents, subject to strict conditions regarding the wife's direct access. Similarly, the husband's objection to a subpoena to National Australia Bank was dismissed, with directions for the husband's solicitors to first access and remove documents pertaining to specific periods, with the remaining material to be made available for inspection and photocopying by the wife's solicitors under supervised conditions.

The court further ordered that in the event the husband intended to sell or further encumber the property at E Street, Suburb F NSW, he must provide 21 days' notice to the wife. The proceedings were listed for a further mention and directions.

Orders

Orders of the court

SYC 1433 of 2020

BETWEEN:

MS VANG

Applicant

AND:

MR CHUNG

Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

9 JULY 2021

THE COURT ORDERS THAT:

Husband’s Application for Security for Costs

1. I dismiss the Husband’s Amended Application in a Case filed on 19 March 2021, that the Wife provide security for costs and consequential orders.

Subpoenas to Commonwealth Bank of Australia and Westpac Banking Corporation

2. In relation to:

(a) The Applicant Wife’s Notice of Objection filed on 24 April 2021 to a subpoena to produce issued by the Court at the request of the Husband to the Proper Officer of Commonwealth Bank of Australia filed on 14 April 202 1; and

(b) The Applicant Wife’s Notice of Objection filed on 24 April 2021 to a subpoena to produce issued by the Court at the request of the Husband to the Proper Officer of Westpac Banking Corporation filed on 14 April 2021,

I dismiss those objections.

3. I grant first access for a period of 21 days from the date of this order until 4:00PM on 30 June 2021 to view material produced pursuant to subpoenas issued to the Proper Officer of Commonwealth Bank of Australia and the Proper Officer of Westpac Banking Corporation to the Wife for the purpose of redacting any information so produced that identifies her place of employment or place of residence.

3A. After 4:00PM on 30 June 2021 being a period of 21 days from the date of this order, grant leave to the Husband to inspect and copy material produced pursuant to subpoenas issued to the Proper Officer of Commonwealth Bank of Australia and the Proper Officer of Westpac Banking Corporation.

Subpoenas to Company B and Mr C

4. In relation to:

(a) The Respondent Husband’s Notice of Objection filed on 9 June 2020 to a subpoena issued by the Court at the request of the Wife to Company B on 27 May 2020; and

(b) The Respondent husband’s Notice of Objection filed on 9 June 2020 to a subpoena issued by the Court at the request of the Wife to Mr C,

I dismiss those Notices of Objection.

5. In relation to the subpoena issued by the Court at the request of the Wife to Mr C, and the subpoena issued by the Court at the request of the Wife to Company B, grant leave to the Wife’s solicitors to photocopy and inspect the documents produced under those subpoenas, provided that:

(a) No physical or digital copies of those documents are provided to the Wife; and

(b) The Wife only inspects those documents in the presence of a solicitor of the firm of her legal representatives.

Subpoena to National Australia Bank

6. The Notice of Objection filed by the Husband to a subpoena issued by the Court at the request of the Wife to National Australia Bank on 25 May 2020 is dismissed.

7. The Notice of Objection filed by Mr D to a subpoena issued by the Court at the request of the Wife to National Australia Bank on 14 May 2021 is dismissed.

8. In relation to the subpoena issued by the Court at the request of the Wife to National Australia Bank, grant leave to the solicitors for the Husband to have first access to any documents produced in answer to that subpoena for the purpose of removing therefrom any documents that relate to any periods other than:

(a) 1 October 2011 to 11 October 2012; and

(b) 1 December 2014 to 22 December 2019; AND I DIRECT THAT

the Husband’s solicitors are directed to place such removed documents in a separate envelope and to provide that envelope with documents to the Clerk of the Exhibits Office, and that envelope is not to be opened by any legal representative or party pending further order of the Court.

9. Further in relation to the subpoena issued by the Court to National Australia Bank at the request of the Wife on 27 May 2020, grant leave to the Wife’s solicitors, after 4:00PM on 30 July 2021 being a period of 21 days from the date of this order, to inspect and photocopy material produced in answer to that subpoena other than such material placed in a sealed envelope by the solicitors for the Husband in accordance with order 8 herein, provided that:

(a) No physical or digital copies of those documents are provided to the Wife; and

(b) The Wife only inspects those documents in the presence of a solicitor of the firm of her legal representatives.

10. Direct that the legal representatives for the Husband have first access to the documents produced in answer to a subpoena issued by the Court at the request of the Wife to National Australia Bank for a period of 21 days from the date of these orders being until 4:00PM on 30 July 2021.

Wife’s Response to Application in a Case

11. In relation to the Response to Application in a Case filed by the Wife on 10 September 2020, and in relation to the orders as set out by the Wife in the Minute of Order attached to her solicitor-advocate’s Case Outline as Annexure ‘A’ dated 28 April 2021, the Court orders that in accordance with order 2 of the orders sought in that Minute of Order, including as to subparagraphs (a) through to (m) inclusive, herein annexed to these orders as Annexure ‘A’.

12. In relation to the balance of the Wife’s Response to Application in a Case and the orders sought in the Minute of Order attached as Annexure ‘A’ to the Wife’s Case Outline document dated 28 April 2021, I dismiss the balance of that application.

Further Orders of the Court

13. In the event that the Husband intends to either engage in a sale of or seek to further encumber the property at E Street, Suburb F NSW, and in that regard to “further encumber” includes taking further security over that property for any borrowing or seeking to increase the amount already secured on that property by the registered mortgage by further borrowing, the husband must give 21 days notice to the Wife and to any legal representative acting for the Wife in these proceedings before taking any such action toward sale or further encumbrance.

14. The proceedings are listed for further mention and directions at 10:30AM on 15 October 2021.

THE COURT NOTES THAT:

15. These orders are to be read in conjunction with the orders made in Chambers today.

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

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Evidence

Evidence Before The Court

Delivery of Judgment was set down for 20 May 2021, but was vacated from that date in consequence of the filing of the Notice of Objection by the objector on 14 May 2021. The matter was set down for consideration of that, as a continuation of the interim hearing, on 16 June 2021. That hearing took place with all parties being represented.THE EVIDENCE IN THE MATTER TO DATE In considering the issue of security for costs, it is necessary for me to traverse the matter in a little bit of detail. In giving proper consideration to the relevant matters that a court is to consider when exercising a discretion in relation to the security for costs, the court perusing the matter becomes an essential part in order to sufficiently inform the court to enable the court to make those considerations before exercising its discretion. I will go to the applications and evidence of the parties in the matter before I look briefly at the relevant law and then the issues before the court before making findings. The wife’s Initiating Application filed on 3 March 2020 sought “a split”, in her terms, or an adjustment between the parties, in terms of section 79 of the Act, of the net asset pool, 20 per cent to the wife and 80 per cent to the husband. In her supporting affidavit, filed with the Initiating Application, she gave evidence that the parties met in late 2014 when the wife was a student and working part-time as an employee at Employer L and the husband was employed as a director of numerous companies inside and outside of Australia, (bearing in mind that this is the wife’s evidence in her original affidavit). The wife says that in 2015, the parties’ commenced cohabitation at the wife’s rented home at J Street, Suburb K. She says that they married in 2017 and separated on 31 August 2018 after a cohabitation period of three years and six months, though with some periods during that time of living in separate countries. She refers to the divorce proceedings between the parties on 22 October 2019, though she refers to that divorce being on 22 November 2019. The records show that the divorce order was made on 22 October 2019 and became final on 23 November of that year. The wife further says that in April 2016 the parties ceased residing at her J Street, Suburb K rented home and began living at a home owned by the husband at H Street, Suburb F and she and the husband remained residing there until November 2016. She says that in November 2016, the husband advised her that he wished to return to live and work in China to look after his business interests there. When he did return to China, (she says in November 2016; he says in December 2016), she remained in Australia, moving from the H Street, Suburb F, home in early November 2016 to a rental apartment at Suburb M in Sydney. She says that in March 2017, the husband sold H Street, Suburb F, for $22,450,000. The wife, in her first affidavit, asserted that the proceeds of sale were paid into the husband’s bank account.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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