Zha and Wun & Ors

[2020] FamCA 571

FAMILY COURT OF AUSTRALIA

ZHA & WUN AND ORS [2020] FamCA 571

FAMILY LAW – INJUNCTIONS – Ex parte and Interlocutory – Where freezing orders made against respondents pending interim hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Zha

1st RESPONDENT: Mr Wun

2nd RESPONDENT: Mr A Wun

3rd RESPONDENT: Ms Yang

FILE NUMBER: SYC 4269 of 2020

DATE DELIVERED: 7 July 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 7 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood SC

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE 1ST RESPONDENT: Ex Parte

COUNSEL FOR THE 2ND RESPONDENT: Ex Parte

COUNSEL FOR THE 3RD RESPONDENT: Ex Parte

Orders

1. Leave is granted to proceed ex parte.

2. The matter is listed on 17 August 2020 at 10am for possible interim hearing.

3. Leave is granted to all parties to relist the matter by approaching my Associate in Chambers as the Court notes there is a property in Australia that the parties agreed to purchase that is due to settle [in] July 2020.

4. Leave is granted to the wife to file a copy these Orders in proceedings in China and Country B if she wishes to do so.

5. The husband and the Second and Third Respondents are to file and serve their Response, Financial Statement and Affidavit in response to the wife’s application by 7 August 2020.

6. The Court notes the wife’s undertaking as to damages and the wife is to provide a written undertaking as to damages to the Court within 7 days.

7. Pursuant to section 114 of the Family Law Act 1975 (Cth) and until further Order, the Husband be restrained by injunction from selling, mortgaging, assigning, disposing, alienating or further encumbering any and all real properties within and outside of Australia held in his sole name or jointly with any other person or entity, including but not limited to the following properties situate at and known as:

   (a)C Street, Suburb D in the State of New South Wales (folio identifier …);

   (b)E Street, Suburb F in the State of New South Wales (with folio identifier …);

   (c)G Street, Suburb H in the State of New South Wales (folio identifier …);

   (d)J Street, Suburb K in the State of New South Wales (folio identifier …);

   (e)L Street, Suburb M in the State of New South Wales (folio identifier …);

   (f)2 N Street, Suburb P in the State of New South Wales (folio identifier …);

   (g)4 N Street, Suburb P in the State of New South Wales (folio identifier …); and

   (h)Any other properties held by the Husband, either solely or jointly with any other persons or entities.

8. Until further Order, the Husband be restrained by injunction from alienating, further encumbering or adversely dealing with any corporate interest he may have within Australian and outside of Australia, noting that the Husband's corporate interests include but are not limited to the following:

   (a)       AA Pty Ltd;

   (b)       BB Pty Ltd;

   (c)       CC Pty Ltd;

   (d)       DD Pty Ltd;

   (e)       EE Pty Ltd;

   (f)        FF Pty Ltd;

   (g)       GG Pty Ltd;

   (h)       HH Pty Ltd;

   (i)        JJ Pty Ltd;

   (j)        KK Pty Ltd; and

   (k)       LL Pty Ltd.

9. Until further Order the Husband be restrained by injunction from assigning, disposing, withdrawing and/or causing the total balance of his bank accounts held with Q Bank, Z Bank and National Australia Bank from being reduced below $3.8 million.

10. Leave be granted to serve a copy of these Orders on the entities particularised in these Orders, including but not limited to Q Bank, Z Bank and National Australia Bank.

11. Service of the Initiating Application, Affidavit and Financial Statement filed by the Wife may be effected by sending her documents to the husband and the Second and Third Respondents as follows:

    (a)To the Respondent's Husband last known telephone number at … and email address at …; and

    (b)To the Second Respondent last known email address at ….

12. Pending further order, the Wife shall be solely entitled to the rental income from C Street, Suburb D in the State of New South Wales (with folio identifier …).

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4269 of 2020

Ms Zha

Applicant

And

Mr Wun

First Respondent

And

Mr A Wun

Second Respondent

And

Ms Yang

Third Respondent

REASONS FOR JUDGMENT

1. The matter of Zha & Wun is an application filed by the wife, seeking the Court make orders on an ex parte basis.

2. Her application was initially filed on 30 June. It has been amended by a further application sealed on, 7 July 2020. The wife has filed two affidavits in support of the orders to be made. The first affidavit is dated 29 June 2020, together with annexures supporting the evidence set out in her affidavit, an additional and updating affidavit of 6 July 2020, and a financial statement, sworn 29 June 2020.

3. The matter has been listed urgently at the request of the wife’s lawyers by letter, dated 1 July 2020, to the Court.

4. The wife’s case is that, her husband and she having separated, she is most concerned as to his behaviour relating to the disposition of and or dealing with assets such that she may be denied what she says is her entitlement to property having regard to the length and nature of the marriage.

5. The affidavit filed by the wife sets out clearly what her case is. The parties met each other in May 2009. They were married in 2012 in City R, China. They lived together from 2009. They separated on a final basis in or around June 2018. They are not divorced. There are no children.

6. The wife is a citizen of Australia. The wife moved to live with her husband in Australia in May 2014. The husband has permanent residency status in Australia, but he travels frequently with his various and extensive business operations in Asia, China, Country B and America. The wife deposes, in paragraph 6 of her affidavit of 30 June, that she now contacts him by way of email, given his movements and what I regard as their fairly poor relationship at this point in time. The wife says she is seeking these injunctive orders to preserve matrimonial assets.

7. She asserts the husband may have assets totalling $60 million in China. The wife has set these interests out in paragraph 9 of this affidavit, further that 48 per cent of the husband’s income comes from companies in City R, 15 per cent from companies in America, 12 per cent from companies in Country S and three per cent of income comes from Australian corporate entities. The wife seeks the interim injunctions because she says the husband can easily move these assets. These assets consist of real estate holdings, extensive moneys and cash in various bank accounts around the world, properties, shareholdings, companies and the like.

8. The wife became most concerned when she discovered post-separation that her husband had been transferring interest in companies, a company called AA Proprietary Limited, to his brother and another when he had previously been as at 6 February 2017 the sole director and shareholder. On 5 April 2018, he had ceased to be a director and transferred his shares to a business partner, Mr T. Mr T now holds a 70 per cent interest and the husband’s brother, Mr A Wun, a 30 per cent interest in the company.

9. Again, the wife found out that a company called EE Proprietary Limited, a company in which the husband previously had about an 84 per cent shareholding, had purchased an office at E Street, Suburb F on behalf of the company to carry out their business in Australia. The wife discovered on 5 April 2018, the husband transferred his 84 per cent shareholding, in EE Pty Ltd, to AA Pty Ltd which is now owned by Mr T, and his brother.

10. Again, the wife discovered post-separation that the husband had transferred shares in a company called FF Pty Ltd, which was worth about 1.85 million in 2015. This company owned property at U Street, Suburb X, W Street, Suburb X and an entity called Y Company. The transfer value was some $12.5 million. The wife could not see that the husband had an interest in Y Company. However, she does not know what other benefits he has in this group.

11. Additionally there are other third parties which the wife seeks to join in her proceedings, being Mr A Wun, her former brother-in-law, and Ms Yang.

12. The wife will be able to join those parties when she serves her application and supporting material upon them. The wife became most concerned with these facts and that in June 2018, the husband withdrew financial support to her and has played ducks and drakes regarding his intentions with the wife

13. The wife manages the parties properties in Australia, manages payment of outgoings, proceed of rent and carries out that undertaking in Australia. The husband has extensive bank accounts. For example, the wife deposes, at paragraph 18, that he had about $8 million in his Z Bank Country B account.

14. There was $671,000 in an account to the Suburb K property where the wife lives with the National Australia Bank as at 24 December 2019. There are vast assets, vast company and shareholdings and vast items of property around the globe in which the husband and wife have an interest

15. The wife has moved speedily around the globe. She has obtained injunctive orders, similar to those she seeks in Australia, in both China and Country B and has done this expeditiously. She is now seeking to have the same type of orders made in Australia to protect what she says is her interest in the parties and her husband and her vast share portfolios, income, companies, real estate and income from businesses.

16. The wife satisfied me that I ought move ex parte. She became concerned, given the husband’s prior actions, that, if he found out about these proceedings here in Australia and the injunctive orders sought, he might seek to deal with the assets in Australia. He has, in fact, received a copy of the application filed by the wife when the wife, in accordance with the orders of the Country B Court and the Chinese Court, served him with copies of the orders made both in Country B and in China. Fortunately, nothing appears to have happened at this stage.

17. But it is early stages at this time and it is important that the Court move to protect what are, on a prima facie level, matrimonial assets.

18. In the wife’s affidavit of 6 July 2020, she deposes to having sent documents via email to the husband on 4 July 2020 in relation to the Country B proceedings and the injunctive orders made then. Her lawyers in China sent the documents to the husband on 4 July 2020 in relation to the injunctive orders made there via email and in so doing he was provided with the Australian proceedings thus at one level, he has been made aware of the matter. However, there is no appearance today.

19. The wife seeks a raft of orders in her interim application. The evidence she has filed supports the injunctive orders be made as part of my obligation to preserve on a limited basis, at this early stage, what I regard as matrimonial property. The wife has given an undertaking as to damages and that is to be provided in written form within seven days of today’s date. I accept her current undertaking as to damages.

20. Otherwise, I will make the following orders to protect and preserve the matrimonial assets until such time as the husband can file his material and this Court can deal with these issues on a more reasonable basis, being at an interim hearing, and so that the second and third respondent can file their material in reply to the orders the wife seeks in respect of them.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 7 July 2020.

Associate:

Date: 17 July 2020