Zha & Wun (No 2)

Case [2022] FedCFamC1F 576


Federal Circuit and Family Court of Australia

(DIVISION 1)

Zha & Wun (No 2) [2022] FedCFamC1F 576

File number(s): SYC 4269 of 2020
Judgment of: SCHONELL J
Date of judgment: 10 August 2022
Catchwords:

FAMILY LAW – FINANCIAL – Interim orders – Where the wife sought various financial orders against the husband – Where the husband opposed the orders and sought to discharge various existing consent orders by seeking to sell various properties – Where the husband did not establish a change of circumstances sufficient to warrant reconsideration of the orders – Husband’s application dismissed – Orders sought by the wife made.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife sought against the second and third respondents enforcement of disclosure orders previously made and various restraints – Where the second and third respondents contended that later orders superseded the earlier disclosure orders – Interpretation of orders and judgment – Where the later orders did not supplant the earlier disclosure orders – Where the wife also sought to join a company that the second respondent is the sole director shareholder of – Where it is appropriate to that the company be joined to the proceedings.   

Legislation:

Family Law Act 1975 (Cth) ss 79, 80, 117

Family Law Rules 2004 (Cth) r 13.04

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.06

Cases cited:

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; [1981] HCA 39

Kachmar & Madero [2022] FedCFamC1F 476

Medlow& Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Salvage & Fosse (2020) FLC 93-966; [2020] FamCAFC 144

Shamon & Shamon [2021] FamCA 417

Strahan & Strahan (2011) FLC 93-466; [2009] FamCAFC 166

Zha & Wun [2021] FamCA 143

Zha & Wun [2022] FedCFamC1F 274

Division: Division 1 First Instance
Number of paragraphs: 77
Date of hearing: 29 July 2022
Place: Sydney
Counsel for the Applicant: Mr Dickson QC with Mr Fudim
Solicitor for the Applicant: Pickering Pendleton
Counsel for the First Respondent: Mr Ahmad
Solicitor for the First Respondent: Sunfield Chambers
Counsel for the Second and Third Respondents: Mr Hollo
Solicitor for Second and Third Respondents: David H Cohen & Co.

ORDERS

SYC 4269 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ZHA
Applicant

AND:

MR WUN
First Respondent

MR A WUN

Second Respondent

MS YANG

Third Respondent

order made by:

SCHONELL J

DATE OF ORDER:

10 August 2022

THE COURT ORDERS THAT:

1.That within 7 days of the date of these Orders, the parties shall do all acts and things and sign all documents necessary to transfer the following into a bank account in the applicant wife’s (“the wife’s”) sole name (the Utility account):

1.1      100% of the funds presently held in Offset Account ending #84;

1.2 100% of the funds presently held in Offset Account ending #64; and

1.3       100% of the funds presently held in Offset Account ending #03.

2.That upon receipt of the funds into the…

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Details
AGLC
Zha & Wun (No 2) [2022] FedCFamC1F 576
Case
[2022] FedCFamC1F 576
Decision Date

CaseChat Overview and Summary

The case of Zha & Wun (No 2) involved the second and third respondents relying on several documents, including a response filed on 20 May 2022, an affidavit by Mr AE dated 21 June 2022, Justice Altobelli’s judgment from Zha & Wun [2022] FedCFamC1F 274 delivered on 29 April 2022, and a case outline document. The parties involved were a husband and wife who cohabited from 2009 or 2011, married in 2012, and separated in 2018. The wife claimed the husband owned a business empire worth over $100 million, with significant assets held by the second and third respondents for his benefit. There were ongoing proceedings in Country AD and a $6 million judgment in the wife’s favour in China, which was subject to appeal.

The legal issues before the court included the husband's application to dismiss the injunctive orders made on 7 July 2020, the wife's application for interim costs, and the husband's argument that either the Australian proceedings should be stayed pending the completion of the proceedings in China or that Australia was not an appropriate forum for determining the property issues between the parties. The court noted that the issues left to be determined on an interim basis were these three matters, with the estimated hearing length for the interim costs application and the discharge of the injunctions set at one day, and the forum argument requiring an additional day.

The court, in its reasoning, considered the arguments presented by both parties. The husband argued that the injunctive orders should be dismissed as they were based on outdated information and that Australia was not the appropriate forum for determining the property issues due to the ongoing proceedings in China. The wife, on the other hand, sought interim costs and maintained that the injunctive orders should remain in place to protect her interests. The court, after considering the submissions and evidence, decided to proceed with the hearing via Microsoft Teams unless otherwise directed. The outcome of the court's decision on these interim applications will be detailed in the final orders, which may include directives on the continuation of the injunctive orders, the allocation of interim costs, and the appropriateness of the Australian forum for the property issues.

Orders

Orders of the court

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Background

Background to the litigation

The second and third respondents relied upon the following documents:(6)Response filed 20 May 2022;(7)Affidavit of Mr AE filed 21 June 2022;(8)Justice Altobelli’s judgment of Zha & Wun [2022] FedCFamC1F 274 delivered 29 April 2022; and(9)Case Outline document. Background Some background to the proceedings is necessary to put in context the orders that the parties seek. The parties commenced cohabitation according to the wife in 2009 and in 2011 according to the husband. The parties were married in 2012. The parties apparently agree that they separated in 2018. There are no children of the relationship. The husband is aged 49 years and the wife is aged 38 years. The wife contends that the husband is the owner of a business empire having a value in excess of $100 million. Much of the trading enterprise is said by her to be held by the second and third respondents for the husband. There have been proceedings between the parties in Country AD and a judgment in the wife’s favour for $6 million in China, which is subject to an appeal. On 7 July 2020, Henderson J made orders ex parte restraining the husband from selling, mortgaging, assigning or disposing of various pieces of real estate. Her Honour’s orders included: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.L Street, Suburb M in the State of New South Wales (folio identifier …);g.L Street, Suburb M 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. …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 …). The matter next came before the Court on 17 August 2020. On that occasion, the husband was represented by counsel and orders were made by consent in relation to disclosure issues and in particular the following orders were made:9.The injunctive Orders of Justice Henderson dated 7 July 2020 are varied to enable the completion of the purchase of the Suburb NN property by GG Pty Ltd as set out at page 66 of the wife’s tender bundle annexed to her Affidavit filed 30 June 2020, requiring the sum of no less than $594,271 to complete.10.Additionally, the injunctive Orders of 7 July 2020 are varied to permit the husband to discharge the arrears and/or if necessary and required by the bank, the entirety of the mortgage currently in respect of the property in Suburb M as set out at page 75 of the wife’s tender bundle annexed to her Affidavit filed 30 June 2020.THE COURT NOTES THAT1. The issues left to be determined on an interim basis relate to:•The husband’s application that the injunctive Orders made on 7 July 2020 be dismissed;•The wife’s application for interim costs;•The argument raised by the husband that either the proceedings commenced by the wife in Australia be stayed pending the completion of the proceedings in China, or that Australia is a wholly inappropriate forum to determine the property issues as between the parties. 2.The estimated hearing length for the interim costs application and the discharge of the injunctions is one day, and the husband’s forum argument is an additional day.3.The hearing will proceed by way of Microsoft Teams unless otherwise directed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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