Zhai & Niu - [2015] FamCA 639

FAMILY COURT OF AUSTRALIA

ZHAI & NIU

[2015] FamCA 639

FAMILY LAW – PRACTICE & PROCEDURE – Stay Application – Where the husband filed a Notice of Appeal in relation to certain interim orders that were previously made – Where one of those orders restrained the husband from disposing, encumbering or further encumbering any asset of numerous corporations and trusts, other than in the ordinary course of business – Order made conditionally staying that order, to the extent that it precluded the husband from causing or permitting use of the assets of the corporations and trusts in a way that would enable his compliance with a spousal maintenance order – All other applications dismissed – Both parties to bear their own costs of the interim hearing

Family Law Act 1975 (Cth), ss 94AA, 117
Family Law Regulations 1984 (Cth), reg 15A
Family Law Rules 2004 (Cth), rr 19.04

Adam P Brown Male Fashions Proprietary Limited v Philip Morris Inc (1981) 148 CLR 170
Australian Coal & Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621
Federal Commissioner of Taxation v Myer Emporium (No. 1) (1986) 160 CLR 220
Jennings Constructions Limited v Burgundy Royale Investments Pty Limited (No. 1) (1986) 161 CLR 681
Marriage of Rutherford (1991) FLC 92-255
Strahan & Strahan (interim property orders) (2009) 42 Fam LR 203

APPLICANT:

Mr Zhai

RESPONDENT:

Ms Niu

FILE NUMBER:

SYC

8031

2014

DATE DELIVERED:

28 July 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

28 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Kells The Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

Order 14(b)(vi) made on 16 July 2015 is stayed to the extent only that it precludes the Husband from causing or permitting the use of assets of the corporations and trusts referred to in Order 14(a) in a way that would enable his compliance with Order 12.
The parties shall pay his or her own costs of, and incidental to, the interim hearing conducted today.

Otherwise:

a.The Application in a Case filed on 22 July 2015 is dismissed;
b.The Response to the Application in a Case filed on 27 July 2015 is dismissed; and

c.Any and all outstanding interim applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 8031 of 2014

Mr Zhai

Applicant

And

Ms Niu

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 16 July 2015, I determined an interim dispute between the parties in respect of orders sought under both Parts VII and VIII of the Family Law Act 1975 (Cth) (“the Act”).
On 22 July 2015, the husband filed a Notice of Appeal in respect of the orders made pursuant to Part VIII of the Act;…

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 Zhai & Niu

Details

AGLC: Zhai & Niu [2015] FamCA 639
Case: [2015] FamCA 639
Decision Date: 28 July 2015

CaseChat Overview and Summary

In the matter of *Zhai & Niu*, Austin J considered an application concerning orders made on 16 July 2015, which included a stay of certain provisions and the dismissal of applications filed on 22 and 27 July 2015. The dispute revolved around the husband's ability to comply with a previous order (Order 12) in light of the restrictions imposed by Order 14(b)(vi) on the use of corporate and trust assets.

The primary legal issue before the court was whether Order 14(b)(vi) should be stayed to the extent that it prevented the husband from utilising the assets of specified corporations and trusts to comply with Order 12. The court also had to determine the costs of the interim hearing and the fate of outstanding interim applications.

Austin J reasoned that a partial stay of Order 14(b)(vi) was warranted to permit the husband to use the relevant corporate and trust assets for compliance with Order 12. This approach balanced the need to uphold the original orders with the practical reality of the husband's obligations. The court ordered that Order 14(b)(vi) be stayed only to the extent that it precluded the husband from causing or permitting the use of those assets in a manner enabling his compliance with Order 12.

Consequently, the court ordered that the parties bear their own costs of the interim hearing. Furthermore, the Application in a Case filed on 22 July 2015, the Response to the Application in a Case filed on 27 July 2015, and all other outstanding interim applications were dismissed.

Orders

Orders of the court

Order 14(b)(vi) made on 16 July 2015 is stayed to the extent only that it precludes the Husband from causing or permitting the use of assets of the corporations and trusts referred to in Order 14(a) in a way that would enable his compliance with Order 12.

The parties shall pay his or her own costs of, and incidental to, the interim hearing conducted today.

Otherwise:

a. The Application in a Case filed on 22 July 2015 is dismissed;

b. The Response to the Application in a Case filed on 27 July 2015 is dismissed; and

c. Any and all outstanding interim applications are dismissed.

Background

Background to the litigation

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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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