WEI & HUAN

[2015] FamCA 938

FAMILY COURT OF AUSTRALIA

WEI & HUAN [2015] FamCA 938

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the applicant wife seeks various interlocutory orders and injunctions including an ex parte Anton Piller order – Where the Anton Piller order sought pertains to a safe deposit box held by a bank – Where evidence is given that the respondent husband operates his business largely by cash transactions and at least $20 000 is believed to be stored in the safe deposit box – Where most of the property of the marriage is in the sole name of the husband – Where evidence is given that the husband may have already disposed of property – Consideration of rule 14.04 of the Family Law Rules 2004 (Cth) – Anton Piller order made – Balance of the application adjourned.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 5.12, 14.04

Anton Piller KG v Manufacturing Process Ltd [1976] Ch 55
Child Support Registrar & Nixon (2007) 36 Fam LR 571
Craig v Kanssen [1943] 1 All ER 108
Talbot and Talbot (1995) FLC 92-586

APPLICANT: Ms Wei

RESPONDENT: Mr Huan

FILE NUMBER: SYC 6657 of 2015

DATE DELIVERED: 15 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 15 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Longworth

SOLICITOR FOR THE APPLICANT: Armstrong Legal

FOR THE RESPONDENT: No appearance

Orders

1. That for the purposes of these Orders the following words or phrases have the following meanings:

   a)“the wife” means Ms Wei (also known as Ms C Wei) born … 1990.

   b)“the husband” means Mr Huan, born … 1990.

   c)“safe deposit box” means any safe custody or safe deposit box, packet or facility held at the premises of the Bank of China Suburb C branch located at B Street, Suburb C held in the name of the husband or to which the husband is authorised to have access.

   d)“the Independent Solicitor” means Bruce Woolf, the Principal of Woolf Associates and practicing solicitor since 1974, whose business premises is located at Level 10, 82 Elizabeth Street, Sydney.

2. That Orders 1 to 14 of the Application be heard and made in the first instance on an ex parte basis.

3. That the applicant wife is granted leave to serve the Application in this matter and a copy of these Orders on short notice.

Anton Pillar Order

1. That pursuant to s.106A of the Family Law Act 1975:

   a)    The husband is Ordered to sign all documents required by the Bank of China so as to authorise the wife to inspect, copy (including photograph) and inventory the contents of any safe deposit box as defined in paragraph 1 of these Orders.

   b)   the Registrar of the Family Court of Australia is hereby appointed to sign all documents required by the Bank of China on behalf and in the place of the husband in order to authorise the wife to inspect, copy (including photograph) and inventory the contents of any safe deposit box as defined in paragraph 1 of these Orders.

   The Registrar may notify the Manager of the Bank of China by correspondence in accordance with Annexure “A” hereto, or such other letter as the Registrar deems fit. 

2. That the wife be restrained from removing and retaining any item from any such safe deposit box, other than removing the items from the safe deposit box for the purpose of inspection, copying (including photographing) and inventorying the contents at the premises of the Bank of China.

3. To facilitate Orders 4 to 5, Orders 7 to 11 shall apply.

4. That for the purpose of inspecting the contents of the safe deposit box as defined in paragraph 1 of these Orders, the wife shall be accompanied by her legal representative, and the Independent Solicitor.

5. The court notes that the Independent Solicitor, Bruce Woolf has consented to act in this capacity.

6. That the wife shall pay the reasonable expenses of the Independent Solicitor in respect of him acting in that capacity pursuant to these Orders.

7. The wife’s legal representative for the purposes of Order 7 shall be a partner or employed solicitor from Armstrong Legal.

8. That during the inspection of the safe deposit box, the wife (with the assistance of her legal representative) have liberty to record, photograph, count, list or otherwise inventory or make a record of the contents of the safety deposit box.

Adjournment

1. That the wife’s Application be otherwise adjourned until a date to be fixed following the implementation of Orders 4-11 above.

2. That the Applicant wife shall cause her Application, supporting documents and a copy of these Orders to be served on the Respondent Husband within 14 days from the date of the inspection pursuant to Order 4-11.

3. That the Applicant wife’s solicitors have leave to amend the return date on the Application to reflect the adjourned date as provided by the Court.

Notations

THE COURT NOTES THAT:

A.     That it is appropriate for this matter to be given a short return date.

B.     Liberty is granted to the applicant to approach the List Clerk for such short return date that can be provided as soon as is reasonably practicable.

C.     The Court considers this matter to be one where some urgent action is required and for this reason these orders are made ex parte. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wei & Huan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6657 of 2015

Ms Wei

Applicant

And

Mr Huan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter I will make the orders substantially as sought by the applicant and I now give my reasons. By Initiating Application filed 9 October 2015, the applicant wife has sought orders for the alteration of property interests between the parties pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”). The application seeks urgent ex parte orders, including an Anton Piller order, in respect to the inspection of the contents of a safe deposit box held by the Bank of China at its Suburb C branch. By affidavit filed 9 October 2015, the applicant, who is 25 years of age, indicated that she commenced cohabitation with the respondent in or around 2011 and they were married in 2012.

2. The applicant indicated that she has no family in Australia and her parents live in Hong Kong.  The respondent owns and operates a business and also, according to the applicant’s evidence, is a salesman. The applicant asserts that she has been advised by the respondent that a considerable amount of the respondent’s business is by way of cash transactions. This includes in respect to a significant part of what the applicant understands is a turnover of approximately$20 000 per week. 

3. In paragraph 21 of her affidavit, the applicant indicates that she believes that at least $20 000 could be held in that deposit box. At paragraph 50 of her affidavit the applicant provides further evidence that she believes the deposit box is also filled with other valuables.

4. The applicant further attests that the respondent purchased a prestige car in her name in late 2012. Exhibit 1 shows the prestige car registration number … being registered in the name of the applicant.  The applicant has today given oral evidence, under oath, that this morning she attended the premises of the Roads and Maritime Services of New South Wales – with a view to inquiring as to the registered ownership of that motor vehicle.  The evidence that has been given by the applicant is that she was advised that on 18 July 2015 the registration of the motor vehicle was transferred into the name of an individual and, subsequent to that date, the registration has been transferred into the name of a corporation.

5. Rule 5.12 of the Family Law Rules 2004 (Cth) (“the Rules”) enables the Court to deal with an application that is made without notice to the other party. That procedure is an exception to the general principles that any person who is to be the subject of an order should be served with the initiating application and supporting affidavit. Reference is made in that respect to the decision of the English Court of Appeal in Craig v Kanssen [1943] 1 All ER 108, where, at 262, Lord Greene MR said:

   In my opinion, it is beyond question that failure to serve process where service of process is required is a failure which goes to the root of our conceptions of the proper procedure in litigation.  Apart from proper ex parte proceedings, the idea that an order can validly be made against a man who has no notification of an intention to apply for it is one which has never been adopted in England.

6. Similarly, in Child Support Registrar & Nixon (2007) 36 Fam LR 571, the Full Court has applied similar principles in this Court. Ordinarily the Court will require a party, who is to be affected by an order, to be served with the papers that form the basis of the application and for that party to be given a right of appearance to respond to the application.

7. However, as noted in the English Court of Appeal decision of Craig v Kanssen (supra), an exception arises in respect to proper ex parte proceedings.  These proceedings are proper ex parte proceedings and the applicant has satisfied the Court that a situation of urgency exists and, in particular, for an Anton Piller or “search order” to be issued to enable the applicant to ascertain the contents of the deposit box to which I have referred.

8. The reference to an Anton Piller order is a reference to the famous case of Anton Piller KG v Manufacturing Process Ltd,[1] (“Anton Piller”) which was a 1975 decision of the English Court of Appeal.  In Talbot and Talbot (1995) FLC 92-586, at 81,805 – 81,806, Lindenmayer J determined that this Court has jurisdiction to make an Anton Piller order, either by way of the application of section 34(1) of the Act or pursuant to the Court’s inherent jurisdiction. In that decision, Lindenmayer J referred to a passage from the decision of Lord Denning in Anton Piller,[2] as setting out what is required before a Court may grant an Anton Piller order. Reference was also made to page 62 of Anton Piller, where Ormond LJ set out three criteria that need to be established before such an order is made.

   [1] [1976] Ch 55.

   [2] Ibid at 61.

9. Those criteria have been substantially incorporated into rule 14.04 of the Rules, which sets out the procedure for applying for an Anton Piller order. Rule 14.04(3) sets out six specific matters that the Court needs to be satisfied of before making an Anton Piller order. The first is that the applicant is required, pursuant to rule 14.04(3)(a), to provide a description of the document or property to be inspected. In that respect, I have referred to paragraphs 21 and 50 of the applicant’s affidavit filed 9 October 2015.

10. Rule 14.04(3)(b) requires the applicant to provide details of the address of the premises to which the inspection is to be carried out and in that respect I refer to paragraphs 21 and 51 of the applicant’s affidavit, noting that the premises are the Bank of China, Suburb C branch.

11. Rule 14.04(3)(c) requires the applicant to set out the reason the applicant believes that the respondent may “remove, destroy, or alter the document or property” unless an Anton Piller order is made. In terms of that issue, the applicant has provided evidence that the respondent has acted in a secretive manner in respect to his financial affairs. In that respect, reference is made to paragraph 20 of the applicant’s affidavit. Further, the applicant’s counsel tendered property searches in respect to a property located at Suburb D. Exhibit 2, tendered by the applicant’s counsel, are title search documents which establish a prima facie case that the respondent has disposed of that property, which was in his name, on or about 27 February 2015 without the existence of that property or its disposal being communicated to the applicant.

12. The applicant has provided evidence that she has a fear that, should the respondent have notice of her application for ex parte orders, he will act to remove the contents of the safe deposit box. That evidence is referred to in paragraph 51 of the applicant’s affidavit filed 9 October 2015. 

13. Rule 14.04(3)(d) provides that the applicant is required to provide a statement about “the damage the applicant is likely to suffer” if an Anton Piller order is not made. The applicant’s affidavit provides details that the respondent’s family, including the respondent’s father, reside in China. The applicant deposed that the respondent has the capacity to transfer funds outside of the Australian jurisdiction. In addition reference is made to paragraphs 31 and 32 of the applicant’s affidavit where she asserts that the properties that form the bulk of the marital assets, which are located at Suburb E and Suburb F, are registered in the sole name of the respondent. The applicant attests that the respondent also controls the capacity to finance those properties and affect the available equity in those properties and, consequently, the amount of equity that will remain as part of the marital pool which, in turn will become the subject of consideration by the parties and the Court in respect to the applicant’s application for orders pursuant to section 79 of the Act.

14. Rule 14.04(3)(e) of the Rules requires the applicant to provide a statement about the “value of the property” to be inspected and, in that respect, reference has already been made to paragraphs 21 and 50 of the applicant’s affidavit.

15. Rule 14.04(3)(f) of the Rules requires the applicant to provide particulars if there is a person to accompany the applicant to the respondent’s premises. In this case Mr Bruce Woolf, principal of Woolf Associates, has been identified to accompany the applicant to inspect the safe deposit box should an Anton Piller order be made. In that respect, the applicant’s counsel tendered an email from Mr Woolf to Ms Kerry White of Armstrong Legal, who are the solicitors for the applicant, indicating his consent to act as an independent third party observer of the inspection of the safe deposit box.

16. In all the circumstances, as I have indicated, it is appropriate for the Court to make the orders as have been made.  In making orders in these truncated ex parte proceedings it is noted that the Court is not in a position to make findings of fact.  However, the Court is satisfied, on the balance of probabilities, that in the event that the orders are not made there is risk that the contents of the safe deposit box will be depleted. In those circumstances it may be extremely difficult, if not impossible, to subsequently determine what were the contents of the safe deposit box as at the date of these Orders. 

17. In that context the Court notes that the effective operation of the Court, in large part, is based upon the full and frank disclosure by the parties of assets held in their names or joint names which potentially may form part of the marital pool. In that respect reference is made to Chapter 13 of the Rules.

18. Given the possibility, that there is a real risk that the contents of the deposit box will be depleted in the absence of an Anton Piller order being made, the Court accedes to the application for that order and makes orders in terms of those sought by the applicant, save insofar as paragraph 4(b) will include an additional sentence that the Registrar is to notify the Manager of the Bank of China by correspondence of these Orders in accordance with Annexure A to these orders or as modified by the Registrar as the Registrar sees fit.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 15 October 2015.

Associate:   

Date:  30.10.2015