Wang v Jiang (No 3)
[2023] VSC 341
•19 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2022 01349
| YUQIN WANG | Plaintiff |
| v | |
| SHUAI JIANG and anor (according to the attached schedule) | Defendants |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 June 2023 |
DATE OF RULING: | 19 June 2023 |
CASE MAY BE CITED AS: | Wang v Jiang (No 3) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 341 |
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PRACTICE AND PROCEDURE – Application for anti-suit injunction in relation to proceedings in a foreign court – Where proceeding in this Court determines representation in Victoria of a deceased’s estate – Where foreign proceeding relates to issues arising in foreign jurisdiction under foreign law and immovable property in foreign jurisdiction – Issues raised in foreign court not presently before this Court – Whether foreign proceeding vexatious or oppressive or undermining integrity of this proceeding.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Love | Australian Legal Advisory Centre |
| For the Defendants | Mr P Tatti | Aitken Partners |
HIS HONOUR:
A. Introduction
Ms Wang, the plaintiff, has applied for orders restraining Mr Jiang and Ms Qin, the first and second defendants, from bringing an action or continuing any action before the court in the People’s Republic of China. In order to assess that claim, it is necessary to understand the background to the dispute between them.
Kai Jiang (‘the deceased’) died on 29 October 2021 in Victoria where he was then living. It appears to be common ground that he was domiciled in Victoria at that time. He was ‘associated with’ valuable real estate in China, a property in Brighton, and other personal assets in Victoria such as a car. I use the words ‘associated with’ because the beneficial ownership of these assets is disputed. The disputes between the parties relate to the administration and nature of the assets in his estate. Ms Qin is the deceased’s first wife. She and the deceased married in 1981 and, it seems, divorced in September 2020 (although that too may be a subject of dispute). Mr Jiang is the son of Ms Qin and the deceased.
Ms Wang, the plaintiff, was employed in China by the deceased as a nanny. Ms Wang and the deceased developed an intimate relationship and had a child. Some years later, Ms Wang moved to Australia with their child. The deceased visited them. The deceased started to live with Ms Wang in Australia in or about 2015 and in October 2020 they were married in Australia.
Ms Wang contends that the deceased died intestate and that she is the next of kin. She has commenced a proceeding in the probate division of this Court in which she seeks the grant of letters of administration of the deceased’s estate (‘the probate proceeding’). Mr Jiang has objected on the grounds that the deceased left a will dated 26 June 2017 that appoints him as executor and trustee.[1] Mr Jiang also contends that the deceased transferred properties in China to him prior to the deceased’s death so that those properties do not form part of the deceased’s estate. Ms Wang contends that both the will and transfer document are forgeries. The application for the grant of letters of administration is currently listed to be heard on 24 July 2023.
[1]He also contends that the will would survive any remarriage because it was made in anticipation of marriage and provided for a disposition of assets in the event of divorce and remarriage.
The will that Mr Jiang has produced is said to apply only to the deceased’s assets in Australia. The transfer document that Mr Jiang has produced not only purports to transfer to him the deceased’s interests in various properties in China, but also, in an ‘additional clause’ at the end, states that ‘if an accident or accidents happen during my travel or in the future, all my assets and properties in China shall belong to’ Mr Jiang, and that that clause ‘should be treated as an equivalence of’ his will and that Mr Jiang shall be the executor of that will. As noted above, Ms Wang contends that both of these documents are forgeries.
This proceeding was commenced in April 2022 by originating motion in which Ms Wang sought orders restraining Mr Jiang and Ms Qin from interfering with, disposing of, or transferring any of the assets of the estate including those in China. Those orders were made. No application has been made to modify those orders and they remain on foot.
In the meantime:
(a) Mr Jiang, through Ms Qin as his representative, commenced a proceeding in China in which he sought a declaration that Ms Wang’s marriage to the deceased was invalid. It seems that the ground relied on is the assertion that the deceased was still married to Ms Qin at the time he married (or purported to marry) Ms Wang; and
(b) Ms Qin commenced a ‘contract dispute case’ in China in which she claims that Ms Wang is indebted to her (it seems in Ms Qin’s capacity as the then wife of the deceased) in the amount that is the equivalent of just under $600,000. It seems that in 2011 a sum of money was transferred by the deceased into a bank account in Ms Wang’s name. Ms Wang says that she did not open that account and believes that the deceased used her name as a way of transferring money to Australia for use by him at that time when he and Ms Qin were planning to move to Australia and to purchase a home. She contends that she did not receive any of this money and she supposes that it was all spent by the deceased and his then family in the following years. Ms Qin has, it seems, obtained in that proceeding an order seizing or freezing any assets that Ms Wang has in China pending the determination of that claim. Ms Wang says she has no assets of significance in Australia and a unit in China worth at most about $70,000.
This claim that the marriage is invalid is due to be heard on 13 July 2023. I was told that the contract dispute case has not yet been given a date for hearing.
As noted above, Ms Wang has now applied for orders restraining Mr Jiang and Ms Qin from bringing an action or continuing any action before the court in the People’s Republic of China including the claims made by them that the marriage of the deceased and Ms Wang is of no legal effect in China and the claims made by Ms Qin against Ms Wang as to alleged debts to the estate of the deceased and in particular in relation to the property assets in China. It was clarified in oral submissions that the application is intended to prevent the Chinese proceedings from being determined until such time as this Court has determined Ms Wang’s application for the grant of letters of administration.
B. Anti-suit injunctions
The power to grant an injunction to restrain a foreign proceeding should be exercised with caution.[2] In order to obtain the relief she seeks, Ms Wang must establish that it is appropriate to enjoin Mr Jiang and Ms Qin from pursuing their claims in China in order to protect the integrity of the proceedings in this Court or because the administration of justice otherwise requires that such an order be made. This may be the case if the order is necessary to restrain unconscionable conduct or the unconscientious exercise of legal rights or where the proceedings in China are, according to the principles of equity, vexatious or oppressive.[3] As part of establishing those matters, it is ordinarily necessary also to establish that this Court is not a ‘clearly inappropriate forum’ for resolving the dispute between the parties. A foreign proceeding may be oppressive, and an order may be made preventing its continuation, if the dominant purpose of the foreign proceeding is to prevent a party from obtaining relief in the domestic proceeding.[4]
[2]CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 396 (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).
[3]Ibid 393; Need Pty Ltd v Need Essentials USALLC [2023] VSC 184, [20] (M Osborne J).
[4]Cf CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 402 (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).
C. Should the injunction be granted?
Ms Wang’s central contention is that Mr Jiang and Ms Qin are by their proceedings in China seeking to obtain control of the deceased’s estate in China and thereby render ‘redundant‘ her application for the grant of letters of administration in Australia.
As part of that submission, Ms Wang asserted that the grant of letters of administration in Victoria and an expressed finding that the will produced by Mr Jiang was a forgery, and possibly also that the transfer document was a forgery, would significantly affect the attitude that the Chinese courts would take to the proceedings there. Further, Ms Wang submitted that if this Court recognised her marriage with the deceased it was ‘extremely unlikely that the Chinese law would invalidate’ that marriage. On that basis, it was said, it would be oppressive or vexatious to have the Chinese proceedings heard before the probate proceeding was heard by this Court. Ms Wang noted that in July 2022 Mr Jiang successfully applied to have the probate proceeding adjourned on the grounds that he had insufficient funds, but then in October 2022 issued the proceedings in China. That timing justified an inference, it was submitted, that Mr Jiang was improperly seeking to bypass the regularly-institute proceedings in this Court and have relevant issues determined instead by the Chinese courts.
Underlying Ms Wang’s submission were assertions that a grant to her of letters of administration would enable her to have the properties in China transferred into her name, and that the grant would ‘vest in her the rights to all properties wherever they be’ and give her the right to ‘deal with the estate as she sees fit including assets in any country’. On the other hand, if the Chinese proceeding went ahead, Mr Jiang could obtain control of the properties in China before this Court had the opportunity to decide whether to grant Ms Wang letters of administration. It was this potential consequence that was said to amount to an interference with the proper administration of the estate in Victoria under the control of this Court.
It is necessary, first, to identify the issues that arise in the probate proceeding and the issues that are sought to be litigated in the proceedings in China. This is because the mere co-existence of proceedings in different countries does not constitute vexation or oppression. The extent to which the issues in the two proceedings overlap is relevant and a foreign proceeding is unlikely to be vexatious or oppressive if it is directed at obtaining relief beyond that claimed in the domestic proceeding.[5]
[5]Ibid 393 (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ). I have expressed this test other than in absolute terms, despite the wording of the High Court, for the reasons set out in Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, [440]-[442] (Warren CJ, R Osborn JA and Macaulay AJA).
In the probate proceeding, the Court will determine the validity of the purported will for the purpose of determining whether to grant letters of administration to Ms Wang. It will not determine the validity of Ms Wang’s marriage to the deceased because Mr Jiang accepts that, for the purposes of Australian law, that marriage was valid. Nor will it determine the assets or liabilities of the estate. That is, it will not determine whether or not Ms Wang is indebted to the estate as Ms Qin contends. The extent of the estate is conceptually discrete from the question as to who is entitled to inherit.
The concession that Ms Wang’s marriage to the deceased is valid under Australian law seems surprising at first glance. But it is not. Under Victorian intestacy law, the law of the deceased’s domicile applies to ‘movable’ assets of the estate, but the disposition of ‘immovable’ assets is governed by the law of the state where those assets are located.[6] This means that if the deceased died intestate, as Ms Wang contends, then Chinese law will govern who is entitled to the real estate in China (that is, who inherits under Chinese law in the case of intestacy) and, if a wife inherits, whether Ms Wang’s marriage was valid under Chinese law. Accordingly, there is nothing inconsistent, or improper, in Mr Jiang contending that Ms Wang’s marriage was valid under Australia law but not recognised under Chinese law. It may be, of course, that Ms Wang has some claim under Chinese law even if she was not formally married to the deceased.
[6]Haque v Haque (1962) 108 CLR 230, 248 (Dixon CJ, Kitto, Menzies and Owen JJ); Haque v Haque (No 2) (1965) 114 CLR 98, 121-122 (Barwick CJ), Re Ralston [1906] VLR 689.
It is also relevant that any letters of administration granted in Victoria will not give Ms Wang power over assets located in China. In order to deal with the real estate assets in China, Ms Wang would have to obtain a grant (or do whatever was required) under Chinese law in order to establish her right to those assets.
Similarly, if Mr Jiang succeeds in establishing that the will is valid and obtaining a grant of probate, he will be confirmed as the executor of the deceased’s estate. The will, however, expressly states that it applies only to the deceased’s assets in Victoria. It does not purport to dispose of any of his assets in China. Accordingly, there is nothing inconsistent, or improper, in Mr Jiang contending that the deceased left a valid will while challenging the status of the deceased’s marriage to Ms Wang under Chinese law.
There is no reason, perhaps, why this Court could not apply Chinese law and determine thereby, as between the parties, who is to inherit the real estate in China. But this Court has not yet been asked to do that. In these circumstances, I am not satisfied that it is vexatious or oppressive for Ms Qin and Mr Jiang to litigate in China their entitlement under Chinese law to the immovable assets located in China, including whether, under Chinese law, Ms Wang’s marriage is valid. Indeed, it makes sense that those questions are litigated in the forum where the relevant assets are located and where there will not be any need to apply a ‘foreign’ law. Determination of those issues in China does not, in my view, undermine the integrity of the proceedings in this Court and is not otherwise vexatious or oppressive.
In this respect, I note that the orders restraining Mr Jiang from disposing of or interfering with the deceased’s assets in China remains on foot. Mr Jiang, if he is to avoid a charge of contempt, would not be able to dispose of those properties without first coming to this Court and seeking a variation of those orders.
The position with the debt claim is, in my view, less clear. The documents produced suggest that the claim is being brought by Ms Qin on the basis that she has a personal right to the money, rather than that she is asserting a right to the money in a capacity as a representative of the estate. That would be the case if, for example, under Chinese law, she were considered the joint lender of the money. If that is right, there could be no reason to prevent Ms Qin from prosecuting that claim, based as it is on Chinese law relating to events that took place in China involving an alleged personal liability of Ms Wang to Ms Qin.
If the claim is being brought by Ms Qin in a capacity as a representative of the estate, there could be a reason to enjoin Ms Qin from prosecuting it. Under Victorian law, a debt owed to the estate would probably be a movable asset of the estate and, assuming that the deceased was domiciled in Victoria, could or should be brought by the representative of the estate. I am not satisfied, however, that Ms Qin is bringing the claim in that capacity. This is sufficient reason not to enjoin her from maintaining that action in China.
Further and in any event, there is, at the moment, no proceeding in Victoria in which the issue as to whether Ms Wang is indebted to the estate has been raised. If there is such an indebtedness, it arises out of transactions that took place in China between the deceased and Ms Wang in 2011 when they were both living in China. Probably, the liability falls to be determined under Chinese law because that would be the proper law of any agreement between them. The proceeding relating to that claim is not presently damaging the integrity of this Court or any proceeding in this Court. Given that it is not inherently oppressive for proceedings to be commenced in a foreign country, and given the connections between the dispute and China, even if the claim were being made by Ms Qin in some form of representative capacity, I would not be persuaded that it would be appropriate for me to make an order restraining Mr Jiang from continuing that proceeding.
D. Disposition
I will make orders dismissing the application and will hear from the parties on the question of costs.
SCHEDULE OF PARTIES
S ECI 2022 01349
| YUQIN WANG | Plaintiff |
| -and- | |
| SHUAI JIANG | First Defendant |
| GUOHUA QIN | Second Defendant |
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