Zha & Wun (No 4)

Case [2023] FedCFamC1F 830

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Zha & Wun (No 4) [2023] FedCFamC1F 830

File number(s): SYC 4269 of 2020
Judgment of: SCHONELL J
Date of judgment: 28 September 2023
Catchwords: FAMILY LAW – INJUNCTIONS – Where the respondents sought to set aside ex parte injunctions made against bank accounts in Country AD – Consideration of who bore the onus in circumstances where there was a delay in the respondents’ bringing the application – Where the wife bears the onus as the moving party seeking the injunctions – Where the wife asserts that the asset pool is $897 million – Where the funds injuncted in Country AD total approximately $22 million – Where the respondents contended that the final relief sought by the wife is not imperilled as the funds account for about 2.6 per cent of the asserted asset pool – Where the submission is superficially simple in that it does not consider the wife’s capacity to recover any judgment sum in circumstances where the vast majority of the asserted assets are overseas – Where a judgment can be enforced in Country AD – Where the balance of convenience favours the continuation or granting of the injunctions – Where the Court is satisfied that the wife’s undertaking as to damages is sufficient – Where the Court is not satisfied that the wife failed in her obligations in seeking the ex parte injunctions – Application dismissed.      
Legislation:

Family Law Act 1975 (Cth) s 114

Federal Circuit and Family Court of Australia Act 1975 (Cth) s 8

Cases cited:

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

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Blueseas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92-856; [1999] FamCA 745

Comino v Kremetis (2023) 110 NSWLR 224; [2023] NSWSC 32

Hislop v Paltar Petroleum Ltd (No 2) (2017) 122 ACSR 358; [2017] FCA 1213

Re Idoport Pty Ltd (in liq) (2011) 83 ACSR 164; [2011] NSWSC 322

Re Sinanovic’s Application (2001) 80 ALR 448; [2001] HCA 40

Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730

Ross v Internet Wines Pty Ltd (2004) 60 NSWLR 436; [2004] NSWCA 195

Shamon & Shamon [2021] FamCA 417

Sieling and Sieling (1979) FLC 90-627; [1979] FamCA 23

Southern Equities Corp Ltd (in liq), Re; Bond & Caboche v England (1997) 25 ACSR 394

Sutherland v Pascoe (No 2) (2012) 297 ALR 328; [2012] FCA 1361

Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; [1912] HCA 72

Tsiang & Wu and Ors (2019) FLC 93-911; [2019] FamCAFC 128

Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955

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

Zha & Wun [2021] FamCA 14

Zha & Wun [2022] FedCFamC1F 274
Division: Division 1 First Instance
Number of paragraphs:

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Details
AGLC
Zha & Wun (No 4) [2023] FedCFamC1F 830
Case
[2023] FedCFamC1F 830
Decision Date

CaseChat Overview and Summary

The case of Zha & Wun (No 4) involved the wife, Ms. Zha, seeking to uphold ex parte injunctions against bank accounts in Country AD, which were initially made against the second respondent, Mr. A. Wun, and AB Pty Ltd. The respondents argued for setting aside these injunctions. The Family Court of Australia was tasked with determining whether the injunctions should remain in place, considering the respondents' contention that the injunctions were not necessary as the funds in question constituted a small fraction of the total asset pool.

The court had to decide whether the wife, as the moving party, had met her burden of proof in establishing the necessity of the injunctions, despite the delay in bringing the application. The wife asserted that the total asset pool was approximately AUD$897 million, with the funds injuncted in Country AD amounting to around AUD$22 million. The respondents argued that the injunctions were unnecessary since the injuncted funds represented only about 2.6% of the total asset pool. However, the court found that this argument was superficial and failed to address the practical difficulties in enforcing judgments in Country AD, especially given that the majority of the assets were overseas.

The court concluded that the wife had demonstrated an arguable claim for the injunctions, and the balance of convenience favoured maintaining the injunctions. The wife's undertaking as to damages was deemed sufficient, and the court was not satisfied that the wife had failed in her obligations in seeking the ex parte injunctions. Therefore, the application to set aside the injunctions was dismissed. The court's decision emphasised the importance of the wife's ability to enforce any judgment sum, especially considering the significant proportion of assets located overseas.

The final order of the court was that the application to set aside the injunctions be dismissed. This decision reflects the court's assessment that the injunctions were justified and necessary to protect the wife's interests in the matrimonial property dispute.

Orders

Orders of the court

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 (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

28 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed 18 July 2023 be dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The wife for her part relied upon:(1)Response to Application in a Proceeding filed 9 August 2023;(2)Further Further Further Amended Initiating Application filed 25 May 2023.(3)Affidavit of wife filed 24 February 2023;(4)Affidavit of wife filed 9 August 2023;(5)Affidavit of wife filed 18 September 2023;(6)Case Outline document filed 20 March 2023;(7)Case Outline document filed 9 August 2023;(8)Judgment of Zha & Wun [2021] FamCA 143 delivered by Watts J on 19 February 2021;(9)Judgment of Zha & Wun [2022] FedCFamC1F 274 delivered by Altobelli J on 29 April 2022;(10)Judgment of Zha & Wun (No 2) [2022] FedCFamC1F 576 delivered by me on 10 August 2022; and (11)Orders made on 10 March 2023 and 9 June 2023.BACKGROUND To put in context the orders sought, some background is necessary. The wife was born in 1984 and is currently 39 years of age. The husband was born in 1972 and is currently 51 years of age. AB Pty Ltd was incorporated in 2005. The second respondent is the sole director and shareholder of the company. The parties commenced cohabitation in either 2009, 2010 or 2011, married in 2012 and separated on a final basis in 2018. There are no children of the relationship. It is the wife’s position that the pool of assets for division is approximately AUD$897 million. She contends that AB Pty Ltd is held on trust for the husband, is his alter ego or that it is a sham. The respondents submit that the husband asserts that the net pool of assets is valued at approximately AUD$22.5 million. On 30 June 2020, the wife commenced proceedings in the Family Court of Australia (as it then was) seeking property orders against the husband and the second and third respondents. In mid-2020, proceedings were commenced in China between the husband and the wife. The following month, the wife commenced proceedings in Country AD seeking orders against the husband and the second respondent. AB Pty Ltd was subsequently joined to those proceedings. In early 2022, final reasons for judgment were delivered in the Chinese proceedings in respect of the properties held by the husband and wife in China. Both the husband and the wife appealed the decision, but the appeals were subsequently withdrawn. Orders in the Chinese proceedings compel the husband to pay to the wife approximately $5,400,000. Part of that amount has been paid to the wife. On 2 August 2022, in response to an application filed by the wife, the second respondent filed an undertaking with the Court that he would not deal with his interest in AB Pty Ltd without first providing written notice to the wife. On 10 August 2022, AB Pty Ltd was joined to the proceedings in this Court. On 10 March 2023, a senior judicial registrar made ex parte injunctive orders against the second respondent and AB Pty Ltd in relation to various Country AD bank accounts. The wife’s position is that the funds in those bank accounts are matrimonial assets of the parties and thus ought to be available for division between the parties. Order 14 provided that “[l]eave is granted to the [s]econd, [t]hird and [f]ourth [r]espondents to relist the matter on 48 hours’ notice”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I recognise that the Court in Country AD has discharged the ex parte injunctions made by that Court. I am, however, not bound in any way by that determination. CONCLUSION Having regard to all the evidence, I am satisfied that the wife has demonstrated that she has an arguable claim for the relief that she seeks, that the balance of convenience favours the wife notwithstanding the asserted prejudice to the respondents, and that the wife has proffered an undertaking as to damages. I am not satisfied that the wife failed in her obligations in seeking the ex parte orders. I am satisfied that it is proper that the injunctions continue. Accordingly, the Application in a Proceeding will be dismissed.

Ratio Decidendi

Legal Principle Established

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