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Whung & Whung

Whung & Whung

Case [2011] FamCA 137 4 March 2011

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FAMILY COURT OF AUSTRALIA

WHUNG & WHUNG & ORS

[2011] FamCA 137

FAMILY LAW – PROPERTY – Application for stay of proceedings – Forum non conveniens – Whether clearly inappropriate forum – Competing applications for anti-suit injunctions – Determination that local forum is not a clearly inappropriate forum – Determination to grant anti-suit injunctions – Relevant principles for each application considered and applied

Family Law Act 1975 (Cth) ss79, 90AE (2) and (3)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s5

Family Law Rules 2004, Rule 6.02(1)

British South Africa Cov Companhia de Mocambique [1893] AC 602
CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345
Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87
Gilmore & Gilmore (1993) FLC 92-353
Hamlin v Hamlin [1986] Fam 11
Henry v Henry (1995) 185 CLR 571
In the Marriage of Allison (No 2) (1981) 7 Fam LR 953
Lancely & Lancely (1994) FLC 92-491
Lederer & Hunt [2007] FamCA 55
Martin v Martin (1959) 110 CLR 295
Michael Wilson & Partners Ltd v Robert Colin Nicholls [2008] NSWSC 1230
Moran & Moran (1995) FLC 92-559
National Commercial Bank v Wimborne (1978) 5 BPR [97423]
Navarro & Jurado [2010] FamCAFC 210
Nelson v Nelson (1995) 184 CLR 538
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Paramasivam v Flynn (1998) 90 FCR 489
Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491
Spiliada Maritime Corp v Consulex Ltd [1987] AC 460
Valceski v Valceski [2007] 70 NSWLR 36
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

Family Law, Anthony Dickey QC, 67 ALJ 538
Nygh’s Conflict of LawsIn Australia, M Davies, A. S Bell, P L G Bereton, LexisNexis Butterworths, 8^th ed., 2010

APPLICANT:

Ms Whung

FIRST RESPONDENT:	Mr Whung
SECOND RESPONDENT:	Mr C
THIRD RESPONDENT:	Mr V

FILE NUMBER:

BRC

5594

2010

DATE DELIVERED:

4 March 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

7 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Forrest SC, with him Mr Carter

SOLICITORS FOR THE APPLICANT:

McKelvey & Hu Lawyers

COUNSEL FOR THE RESPONDENTS:

Mr Hackett

SOLICITORS FOR THE RESPONDENTS:

Wesley Lawyers

Orders

The husband’s application for a stay of these proceedings is dismissed.
Until further order the husband is restrained and an injunction is granted restraining him from commencing and/or continuing any legal proceedings in Taiwan Republic of China against the wife for dissolution of their marriage and/or any matters arising from that marriage, in particular, in respect of division of their property and spousal maintenance.
Until further order the third respondent is restrained and an injunction is granted restraining him from commencing and/or continuing any legal proceedings in Taiwan Republic of China against the wife for any declaration of beneficial ownership of any of the property of the wife and/or the husband held in the third respondent’s name and/or for the payment of compensation funds received from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Whung & Whung [2011] FamCA 137
Case: [2011] FamCA 137
Decision Date: 4 March 2011

CaseChat Overview and Summary

In *Whung & Whung*, heard before O'Reilly J, the wife sought to restrain the husband and a third respondent from commencing or continuing legal proceedings in Taiwan concerning their marriage dissolution, property division, and spousal maintenance. The husband had also applied for a stay of the Australian proceedings.

The court was required to determine whether the Australian forum was clearly inappropriate, and consequently, whether to grant anti-suit injunctions against the husband and the third respondent. The court also had to consider the husband's application for a stay of the Australian proceedings.

O'Reilly J dismissed the husband's application for a stay of proceedings. The court reasoned that the Australian forum was not clearly inappropriate and applied the relevant principles for granting anti-suit injunctions. Consequently, the court granted injunctions restraining the husband from commencing or continuing proceedings in Taiwan regarding the dissolution of the marriage, property division, and spousal maintenance. An injunction was also granted restraining the third respondent from commencing or continuing proceedings in Taiwan concerning declarations of beneficial ownership of property held in his name or compensation received from the L City Council for the resumption of Queensland property.

The proceedings were listed for further determination on 7 March 2011, to address specific aspects of the husband's response, interlocutory restraints, interim property division, disclosure, and all extant costs applications.

Orders

Orders of the court

The husband’s application for a stay of these proceedings is dismissed.

Until further order the husband is restrained and an injunction is granted restraining him from commencing and/or continuing any legal proceedings in Taiwan Republic of China against the wife for dissolution of their marriage and/or any matters arising from that marriage, in particular, in respect of division of their property and spousal maintenance.

Until further order the third respondent is restrained and an injunction is granted restraining him from commencing and/or continuing any legal proceedings in Taiwan Republic of China against the wife for any declaration of beneficial ownership of any of the property of the wife and/or the husband held in the third respondent’s name and/or for the payment of compensation funds received from the L City Council in relation to its resumption of the property situate at …, G, Queensland being Lot … on registered plan no ….

These proceedings be listed at 10.00am on Monday 7 March 2011 for one full day for determination of par 3 of the husband’s response filed 16 September 2010 (directions, interlocutory restraints, interim property division, disclosure) and all extant costs applications including those already reserved and those sought in the wife’s application in a case filed 18 November 2010 pars 2, 3 and 5.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Whung & Whung [2011] FamCA 137

Most Recent Citation

Chaney & Chaney [2022] FedCFamC2F 108

Cases citing this decision · 6 of 6 shown

Rizal & Basnet
[2025] FedCFamC2F 141 Para 10

…now turn.[8] [8] Henry at 592-593 per Dawson, Gaudron, McHugh & Gummow JJ; Skinner v Alfonso-Skinner [2010] FamCA 329 at [68-70]; Whung & Whung & Ors [2011] FamCA 137 at [43]; Kent & Kent (2017) FLC 93-792 at [31].…
Fertig & Bosque
[2024] FedCFamC1F 634 Para 23

…fer to the High Court decision of Henry v Henry [1996] HCA 51, which has been referred to in authorities in this jurisdiction including Whung & Whung [2011] FamCA 137 at [43], which conveniently sets out the following matters that arise for consideration in an application such as this. 1.No question arises unless t…
Doon & Jing
[2022] FedCFamC1F 665 Para 19

…I note the submission by Mr Gordon on behalf of the wife referring the Court to Whung & Whung [2011] FamCA 137. When considering the Mozambique rule[7] O'Reilly J referred to an article by Dr Anthony Dickey QC entitled "Orders In Respect of Foreign Property Under Section 79". Dr Dickey’s article was written to squa…
Chaney & Chaney
[2022] FedCFamC2F 108 Para 27

…subsequent proceedings will be vexatious or oppressive in the relevant sense. [20] Henry at [35] (per Dawson, Gaudron, McHugh and Gummow JJ). [21] [2011] FamCA 137 at [130]-[133]. See also Lan & Hao (No 2) [2017] FamCAFC 175; (2017) FLC ¶93-795 (at [39] (per Ainslie-Wallace, Aldridge and Watts JJ).…
Teo & Guan
[2015] FamCAFC 94 Para 3

…ve also had to deal with the issues of anti-suit and the issues of proceedings in other jurisdictions. Substantive one [sic] is a matter of Whung … [2011] FamCA 137, where there is a long and detailed discussion in relation to the issues of anti-suit applications, appropriate forums and the like in that regard. And…
Yang and Chin
[2011] FamCA 703 Para 6

…Counsel for the Wife also referred me to the recent first instance judgment of Justice O’Reilly in Whung & Whung and Ors [2011] FamCA 137 as authority for a consideration of costs in the “inappropriate forum test”. In Whung (supra), her Honour enunciates the principles as prescribed in Henry (supra), including (at…

View all 6 citing cases →

Cases cited in this decision · 20 of 20 shown

Navarro v Jurado
[2010] FamCAFC 210 Para 11

…In Navarro & Jurado [2010] FamCAFC 210 O’Ryan J, although a dissentiente in the result in that appeal, at [166] usefully referred to Nygh’s Conflict of Laws In Australia , M Davies, A S Bell, P L G Bereton, LexisNexis Butterworths, 8 th ed., 2010 at [8.29]: [8.29] …[I]t seems fairly clear from the court’s emphatic st…
Michael Wilson & Partners Ltd v Nicholls
[2008] NSWSC 1230 Para 8

…In Michael Wilson & Partners Ltd v Robert Colin Nicholls [2008] NSWSC 1230 (see footnote 72 to par [27.31]), Brereton J (a current co author of Nygh ) considered an objection to an order for the production and inspection of documents in the context of whether the New South Wales Supreme Court can order a party to ac…
Valceski v Valceski
[2007] NSWSC 440 Para 5

…to exercise it for the purposes of the s 79 proceedings in order to ascertain the nature and extent of the divisible pool: Valceski v Valceski [2007] 70 NSWLR 36 at [34], [59], [65] per Brereton J.…
Lederer & Hunt
[2007] FamCA 55 Para 8

…See also, in this Court, Lederer & Hunt [2007] FamCA 55 at [26]-[30]; [33]-[46]; [49] and [69].…
Regie Nationale Des Usines Renault SA v Zhang
[2002] HCA 10 Para 4

…. Henry at 578. Thus, a court is not an inappropriate forum merely because another is more appropriate. Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491 at [24].…
Damberg v Damberg (No 2)
[2001] NSWCA 433 Para 1

…on, relying not only on the exception to the Mocambique rule (previously referred to) but also on three further authorities, namely Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87; National Commercial Bank v Wimborne (1978) 5 BPR [97423]; and Paramasivam v Flynn (1998) 90 FCR 489. Wimborne did not relate to for…
Damberg v Damberg
[2001] NSWCA 87 Para 1

…on the exception to the Mocambique rule (previously referred to) but also on three further authorities, namely Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87; National Commercial Bank v Wimborne (1978) 5 BPR [97423]; and Paramasivam v Flynn (1998) 90 FCR 489. Wimborne did not relate to foreign land holding…
Paramasivam v Flynn
[2000] HCATrans 165 Para 1

…ies, namely Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87; National Commercial Bank v Wimborne (1978) 5 BPR [97423]; and Paramasivam v Flynn (1998) 90 FCR 489. Wimborne did not relate to foreign land holdings, but rather, liability under a guarantee. Nor did Paramasivam , but rather, the proper law relating…
Paramasivam v Flynn
[1998] FCA 1711 Para 1

…ree further authorities, namely Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87; National Commercial Bank v Wimborne (1978) 5 BPR [97423]; and Paramasivam v Flynn (1998) 90 FCR 489. Wimborne did not relate to foreign land holdings, but rather, liability under a guarantee. Nor did Paramasivam , but rather, the proper l…
CSR Ltd v Cigna Insurance Australia Ltd
[1997] HCA 33 Para 1

…y claim I would then need to consider and determine her applications for anti-suit injunctions: CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 397-8.…
Henry v Henry
[1996] HCA 51 Para 1

…e, but whether the local court is a clearly inappropriate forum. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 559 – 60 . Henry v Henry (1995) 185 CLR 571 at 577, 586-7.…
Henry v Henry
[1995] HCATrans 202 Para 1

…ore appropriate, but whether the local court is a clearly inappropriate forum. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 559 – 60 . Henry v Henry (1995) 185 CLR 571 at 577, 586-7.…
Voth v Manildra Flour Mills Pty Ltd
[1990] HCA 55 Para 1

…t is not whether another forum is more appropriate, but whether the local court is a clearly inappropriate forum. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 559 – 60 . Henry v Henry (1995) 185 CLR 571 at 577, 586-7.…
Oceanic Sun Line Special Shipping Co inc v Fay
[1988] HCA 32 Para 4

…th, the High Court adopted for Australia the clearly inappropriate forum test propounded by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247 – 248. Voth at 564. Henry at 587. Those principles stated in Oceanic Sun at 247 – 248 per Deane J are: … [The] power is a discretionary one in…
Ascot Investments Pty Ltd v Harper
[1981] HCA 1 Para 3

…: Lancely & Lancely (1984) FLC 92-491 (cited in Moran at 81,584). Although in Moran reliance was placed on Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 at 354, there is nothing in this authority to suggest that if third party rights are to be the subject of any meaningful declaration (that is, one with utili…
Martin v Martin
[1959] HCA 62

…y v Henry (1995) 185 CLR 571 In the Marriage of Allison (No 2) (1981) 7 Fam LR 953 Lancely & Lancely (1994) FLC 92-491 Lederer & Hunt [2007] FamCA 55 Martin v Martin (1959) 110 CLR 295 Michael Wilson & Partners Ltd v Robert Colin Nicholls [2008] NSWSC 1230 Moran & Moran (1995) FLC 92-559 National Commercial Bank v Wimbor…
Nelson v Nelson
[1995] HCA 25 Para 8

…At [109], Heydon JA referred to Martin v Martin (1959) 110 CLR 297 and to Nelson v Nelson (1995) 184 CLR 538, as to the “intersection” between resulting trust principles and illegality, referring in particular to Deane J and Gummow J in Nelson (at 564), in particular as to the policy of relevant statute upon any claimed…
[1987] AC 460
[1987] AC 460 Para 2

…In the application of the principles stated by Deane J in Oceanic Sun, the discussion by Lord Goff in Spiliada Maritime Corp v Consulex Ltd [1987] AC 460 at 477 – 478 and 482 – 484 as to relevant “connecting factors” and “a legitimate personal or juridical advantage” provides valuable assistance. Voth at 525. Th…
[1893] AC 602
[1893] AC 602 Para 6

…title to, or possession of foreign land and does not therefore offend the Mocambique rule”: British South Africa Co v Companhia de Mocambique [1893] AC 602. He submitted that this Court can make findings in equity in aid of in personam relief concerning real property situated overseas, so as to bind the husband…
[1987] AC 45
[1987] AC 45 Para 7

…ers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings”. … [I]n Bank of Tokyo Ltd v Karoon [[1987] AC 45 at 60] Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that foreign proceedings are to b…

Legislation cited in this decision · 7

Family Law Act 1975 (Cth)
79, 90AE 3 mentions (from Para 2)
Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS)
5 2 mentions (from Para 2)
Family Law Amendment Act 1983 (Cth)
1 mention (from Para 9)
Family Law Rules 2004 (Cth)
1 mention (from Para 17)
Foreign Judgments Act 1991 (Cth)
1 mention (from Para 7)
Foreign Judgments Regulations 1992 (Cth)
1 mention (from Para 7)
Powers of Attorney Act 1988 (Qld)
1 mention (from Para 1)