Ying & Qigang - [2023] FedCFamC2F 111

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ying & Qigang [2023] FedCFamC2F 111

File number(s): MLC 197 2019

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 20 January 2023

Catchwords: FAMILY LAW – ex tempore judgment – application by husband for removal of caveat – unlawful for citizen of the People’s Republic of China (PRC) to prepare or give evidence from PRC in a foreign country – impact of COVID – solicitor alleged case to be a two day case – now ninth day – further two days required – caveat really a ‘short cut’ Mareva injunction – undertaking not to dispose provided – no evidence as would support a caveat for removal of interest – order for removal of caveat.

Legislation: Civil Code of the People’s Republic of China, Article 277
Family Law Act 1975 (Cth), s 79

Cases cited:
Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd's Rep 509

re F: Litigants in Person Guidelines [2001] FamCA 348

Division: Division 2 Family Law

Number of paragraphs: 11

Date of hearing: 20 January 2023

Place: Melbourne

Counsel for the Applicant: Litigant in person

Counsel for the First Respondent: Litigant in person

Counsel for the Second Respondent: Litigant in person

Counsel for the Third Respondent: Litigant in person
ORDERS

MLC 197 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS YING

Applicant

AND:
MR QIGANG

First Respondent

MR YING

Second Respondent

MS JIAN

Third Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

20 JANUARY 2023

THE COURT ORDERS THAT:
1.Ms Ying do all acts and things to withdraw the caveat on Mr Qigang’s Suburb C property within 7 days of these Orders at her expense.
2.Ms Ying, Mr Ying and Ms Jian provide to Mr Qigang all documents obtained from NAB trader relating to share trading in the name of or on behalf of Mr Ying in the period of 2015 to this day within 14 days of these orders.
3.On or before Monday 3 April 2023, Ms Ying is to file an affidavit annexing the relevant bank statements of herself, the Second Respondent and the Third Respondent from 1 January 2014 to 1 January 2017.
4.On or before Monday 3 April 2023, Mr Qigang is to file an affidavit annexing his relevant bank statements from 1 January 2014 to 1 January 2017.
5.Ms Ying is permitted to file on the portal a legible replacement of annexures of documents that are not legible annexed to her affidavit filed on 4 November 2020.
6.No party is to file any further documents on the court portal without express permission of the Court.
7.The proceedings be adjourned to the Federal Circuit Court of Australia at Melbourne to 1 May 2023 for Part Heard Final Hearing (not to exceed an additional 2 days).

AND THE COURT NOTES THAT:
A.Mr Qigang provided an oral undertaking in court today that he would not sell or refinance the Suburb C property before the completion of these proceedings or having…

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.

Continue reading Ying & Qigang

Details

AGLC: Ying & Qigang [2023] FedCFamC2F 111
Case: [2023] FedCFamC2F 111
Decision Date

CaseChat Overview and Summary

This case involves a property dispute between Ms Ying, the Applicant, and Mr Qigang, the Respondent, along with the Wife's parents, Mr Ying and Ms Jian, who were later added as necessary parties to the proceedings. The Federal Circuit and Family Court of Australia (Division 2) was tasked with deciding whether a party should be ordered to remove a caveat lodged over another party and a stranger to the litigation's property. The case has been protracted due to several factors, including the length of the case necessitating it to be heard in several "chunks," the impact of COVID on the time involved to undertake a case over Microsoft Teams video link, the additional time taken because of the necessity of interpretation, and the delay in the matter while the parents of the Wife could be present in Australia, due to the law of the People's Republic of China, Article 277 of the Civil Code of the People's Republic of China, which states that it is unlawful for a Chinese citizen to prepare or give evidence in a foreign court from the PRC.

The legal issue before the court was whether the Wife should be ordered to remove a caveat she had lodged over the Respondent's property, which was purchased post-separation. The court held that there was no proper basis for the caveat to be lodged as it appeared to be a shortcut taken, similar to a Mareva injunction. The court found that the evidence did not justify the lodging of a caveat at that point, and it was in the interests of justice and just and equitable that the Wife be ordered to remove the caveat upon the Respondent's undertaking as recited.

The court ordered that Ms Ying withdraw the caveat on Mr Qigang's Suburb C property within 7 days, provide relevant documents to the other parties, and file affidavits annexing bank statements. The proceedings were adjourned to the Federal Circuit Court of Australia at Melbourne for a Part Heard Final Hearing, not to exceed an additional 2 days. Additionally, Mr Qigang provided an oral undertaking that he would not sell or refinance the Suburb C property before the completion of these proceedings or having first obtained the approval of the Court.

Orders