Zheng and Tram and Ors
[2010] FMCAfam 698
•8 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHENG & TRAM & ORS | [2010] FMCAfam 698 |
| FAMILY LAW – Property – Mareva injunction – ex parte orders. |
| Family Law Act 1975, ss.34, 114 |
| Applicant: | MS ZHENG |
| First Respondent: | MR TRAM |
| Second Respondent: | MS L |
| Third Respondent: | MR V |
| Fourth Respondent: | MR B |
| File Number: | PAC 3521 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 8 June 2010 |
| Date of Last Submission: | 8 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Watkins |
| Solicitors for the Applicant: | Zhang Shijing Lawyers |
| Counsel for the 1st Respondent: | None |
| Solicitors for the 1st Respondent: | Turner Freeman Lawyers |
| 2nd Respondent: | In person |
| Solicitors for the 2nd Respondent: | None |
| Counsel for the 3rd Respondent: | None |
| Solicitors for the 3rd Respondent: | None |
| Counsel for the 4th Respondent: | None |
| Solicitors for the 4th Respondent: | None |
ORDERS
THE COURT ORDERS THAT:
All extant applications be adjourned to this Court on 28 June 2010 at 9:30am for Mention (“the mention hearing”).
The costs of the Applicant and the First Respondent today be reserved.
The Applicant cause her solicitors to serve a copy of these Orders upon the Third Respondent and Fourth Respondent in addition to the Applicant’s Amended Application filed 7 June 2010 and supporting Affidavits.
The Applicant cause her solicitor to file an Affidavit of Service in respect of compliance with paragraph 3 herein on or before the mention hearing.
THE COURT ORDERS, BY CONSENT, THAT:
That the First Respondent and the Second Respondent MS L (or their servants, agents or others acting on their behalf) are and be restrained from selling, disposing or, further encumbering or otherwise dealing with the following properties: Lot 1/SP [omitted] and Lot 4/SP[omitted].
That the First Respondent is restrained from selling, disposing or diminishing the value of any of his assets, including but not limited to bank accounts excepting payment of ordinary living expenses and reasonable legal expenses.
That the First Respondent is restrained from selling, disposing or diminishing the value of the properties being Lot 2 and Lot 3 in SP [omitted].
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Paragraphs 7 and 8 herein be made ex parte without notice to the Third Respondent or Fourth Respondent.
That the First and the Third Respondent MR V or their servants, agents or others acting on their behalf are and be restrained from selling, disposing, further encumbering or otherwise dealing with the property being Lot 2 Strata Plan [omitted].
That the First Respondent and the Fourth Respondent MR B or their servants agents or others acting on their behalf are and be restrained from selling, disposing, further encumbering or otherwise dealing with the property being Lot 3 Strata Plan [omitted].
IT IS NOTED that publication of this judgment under the pseudonym Zheng & Tram & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 3521 of 2008
| MS ZHENG |
Applicant
And
| MR TRAM |
First Respondent
| MS L |
Second Respondent
| MR V |
Third Respondent
| MR B |
Fourth Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings were commenced by an application filed by
MS ZHENG (“the wife”) on 19 April 2010 seeking various property orders against MR TRAM (“the husband”). The husband filed a response on 4 June 2010, and the matter was returnable before me in today’s duty list.
The wife filed an amended application yesterday, 7 June 2010, seeking orders to join three other respondents to these proceedings, namely:
a)MS L (“the second respondent”), who is the husband’s sister;
b)MR V (“the third respondent”), who is the husband’s nephew and son of the husband’s sister; and
c)MR B (“the fourth respondent”), who is also the husband’s nephew and son of the husband’s sister.
The wife is also seeking various interim orders today to be made on an ex parte basis restraining the second respondent, third respondent and fourth respondent from disposing or otherwise dealing with four parcels of real estate:
·in respect to the second respondent, lot 1, strata plan [omitted] and lot 4 in the same strata plan;
·the third respondent, lot 2 in the same strata plan; and
·the fourth respondent, lot 3 in the same strata plan.
It is clear that all four properties are in the same strata development, and I understand they are situated at [omitted].
When the matter came before me this morning, the husband was represented by a solicitor, Ms Chan. Ms Chan also acted as amicus to assist the second respondent, who by chance happened to accompany the husband to Court today but was unaware that the wife was seeking her to be joined in these proceedings.
Following discussions, the wife, husband and the second respondent reached interim consent minutes, effectively to restrain any dealings in lot 1, strata plan [omitted] and lot 4 in the same strata plan. I indicated that I would make orders to that effect today and defer the issue of an adjourned date until considering the remainder of the wife’s interim application. As Ms Chan had a need to travel, Mr Stubbs appeared for the husband this afternoon, and the second respondent appeared in person. Presumably, the third respondent and fourth respondent have no knowledge of these proceedings, at this stage.
Submissions
Submissions were made by Mr Watkins on behalf of the wife. In summary, the wife filed the application to ascertain what property pool the parties have based on her assertions that the husband had indicated to her prior to their relationship that he had a financial interest in four real estate properties. It appears from the filing of the husband’s documentation that he is in some financial difficulty and may be insolvent. Certainly it appears to indicate that he owes a considerable amount of money.
Because the wife contends that if those assets did indeed belong to the husband or he has some interest in those assets, that is obviously a relevant factor to her substantive application for property settlement. She also questions the timing of the transfers, particularly in respect of three properties being transferred within a few days of the parties separating.
The law
Injunctions are one way in which Courts have developed the ability to protect the integrity of the legal process. In respect of property proceedings in Family Law matters, injunctive relief arises from various sections, including ss.34 and 114 of the Family Law Act 1975 (“the Act”) and arguably from the inherent powers of the Court. In respect of s.34 of the Act, I note that the Court has the power in relation to matters which it has under its jurisdiction to make orders of such kinds and to issue or direct the issue of writs of such kind as the Court considers appropriate. A number of cases refer to s.34 as the preferred basis for Mareva orders or Anton Piller orders.
When considering making an injunction, the Court needs to consider three things:
i)whether the applicant has a strong prima facie case;
ii)the “balance of convenience” arguments; and
iii)the issue of damages should the applicant fail to succeed in the substantive application.
In this case, the wife is seeking these injunctions be made on an ex parte basis. These types of injunctions are commonly referred to as Mareva injunctions arriving on the relevant decision. The power to make such an order on an ex parte basis requires the Court to be cautious in terms of protecting the legitimate interests of third parties.
Decision
I note that the wife has also provided the Court with some evidence and has provided also an undertaking as to damages. In the circumstances, I am satisfied that there are issues here arising from the transfer of these four properties, three of which seem to have occurred just following the separation of the parties, and that there is also a possible risk of disposal in the circumstances.
Hence, there will be orders today in accordance with paragraphs 1, 3, and 4 of the interim orders contained in Annexure B of her the wife’s application, although I note that order 1 will need to be amended to apply only to the third respondent and fourth respondent.
As indicated, I intend to bring the matter back at the earliest opportunity. Clearly the wife will need to cause the third respondent and fourth respondent to be served forthwith and appropriate evidence of service provided by the next occasion.
I reserve the right to settle the reasons for this interim decision.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 18 October 2010
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