Zen and Jir and Ors

[2010] FamCA 668

FAMILY COURT OF AUSTRALIA

ZEN & JIR AND ORS [2010] FamCA 668

FAMILY LAW – INJUNCTIONS – Restraint from dealing with funds

Family Law Act 1975 (Cth)

APPLICANT: Ms Zen

RESPONDENT: Mr Jir

2^ND RESPONDENT: Citigroup Pty Ltd

3^RD RESPONDENT: Tabcorp Holdings Ltd

4^TH RESPONDENT: Consolidated Media Holdings Ltd

FILE NUMBER: MLC 6223 Of 2010

DATE DELIVERED: 9 July 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Goddard

SOLICITOR FOR THE APPLICANT: Voitin Lawyers

Orders

That upon the wife giving an undertaking that she will pay any damages ultimately ordered by the Court arising out of these proceedings,

IT IS ORDERED

1. That the wife have leave to proceed without notice of her application to the husband.

2. That the application be adjourned to 9.00am on Monday 12 July 2010 for further mention.

3. That until further order, the husband be restrained by injunction from withdrawing, operating or otherwise dealing with the funds held in Citibank Account …540 AND Citigroup Pty Ltd as the owner of Citibank be requested pending the determination of the applications referred to in paragraph 2 of these orders to give effect to this order.

4. That the husband be forthwith served by email at his last known and usual email address with a copy of this order, the application filed on 9 July 2010 and the affidavit of the wife filed 9 July 2010.

5. That Citigroup Pty Ltd and the third and fourth respondents be forthwith served by electronic means with a copy of these orders as well as the application and affidavit referred to in paragraph 4.

IT IS NOTED that publication of this judgment under the pseudonym Zen & Jir and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6223 of 2010

MS ZEN

Applicant

And

MR JIR

Respondent

And

CITIGROUOP PTY LTD
Second Respondent

And

TABCORP HOLDINGS LIMITED
Third Respondent

And

CONSOLIDATED MEDIA HOLDINGS LTD
Fourth Respondent

REASONS FOR JUDGMENT

1. This is an urgent application brought upon by Ms Zen, to whom I shall refer as the wife, against her husband Mr Jir and three other corporate entities.  Those entities are City Group Proprietary Limited, Tabcorp Holdings Limited, and Consolidated Media Holdings Limited.  None of those corporate entities or the husband has been served.  The application was put on the basis that it was urgent and for the reasons to which I shall now refer, the wife sought to proceed on an ex parte basis, including hence, the three entities, as indicated in discussion with Mr Goddard, appeared for the applicant wife, after applying to make orders, hence the three corporate entities, on the basis that he was relying on section 90AF subsection (iii). 

2. That is not to say that the relevant corporate entities do not have certain responsibilities to the community and to the law, as well as to their own client.  For that purpose I propose put a request on the order that they be conscious of the fact that the matter is coming back quickly, and that they give effect to the order, whether they are bound by it or not.  And the evidence in this case is what is fairly simple:  the parties married in 2003 and separated earlier this year in violent circumstances described by the wife.  The wife and the husband have interests in both Australia and China.  The wife’s evidence is that there was $900,000 in a Citibank account in the name of the husband, but to which she was a signatory. 

3. As a result of the breakdown of the marriage, the husband seems to have terminated the authority of the wife to access any accounts, to the extent that she does not have funds.  The wife is employed, earning $1000 per week before tax;  and she has savings in her name, but there is some considerable concern about the fact that there are also assets in Hong Kong that the husband may access and remove.  The husband is reputed to be a gambler, using large casinos who seem to attract him by various enticements and it may be that he has funds there.  At this stage, the wife says in her affidavit that she believes he has credit funds and she pointed to a $7 million transfer by the husband to Macau Golden Group Limited, Lisboa Casino. 

4. Whether that is the same in the casinos in Australia remains to be seen.  In my view, the power to make an order against the husband is clear and it lies in section 114 of the Act.  Section 114 is a provision used for the protection of the party’s assets and its fundamental basis is that the order should only be made if the order is deemed by the court to be proper.  It may be that there are severe consequences for the husband and others, if I make the order freezing the account and to that extent, I have asked the wife to give an undertaking as to damages.  That means, where it says, if she turns out to have not told the court the truth in its entirety, and there are consequences by way of damages that follow and she is undertaking to this court that she would be responsible for the payment of those damages if that is the case. 

5. It is only on the basis of that undertaking that I am prepared to make the orders in this case against the husband.  I am not prepared to make the orders against the second, third and fourth respondents for the reasons I have outlined, but I propose to bring the matter back on Monday morning at 9 am and to have those parties at least given an opportunity to have some discussions so that the matter can be more sensibly dealt with. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  3 August 2010