Jingyi & Chao (No 8) [2025] FedCFamC1F 192 (25 March 2025)

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).

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jingyi & Chao has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 24 February 2025, parenting and property proceedings were listed for hearing before Harper J. During the week, the parenting aspect of the matter was resolved but the property issues were not and the hearing was then adjourned due to the receiver, who was not previously informed of the proceedings, not being ready to proceed. On Thursday last week, Harper J made a number of freezing orders in relation to cryptocurrency held by the first applicant and stood the property proceedings over for resumed final hearing today.
2. I am informed by counsel for the applicants that his Honour was informed at that time that both senior and junior counsel for the applicants were not available today. Nonetheless, in the knowledge of that position, his Honour made the order just identified.
3. The proceedings seem to have a long and complicated procedural history and have now been on in this court for four years. There are proceedings on foot between the first applicant and the first respondent in the Supreme Court of New South Wales that have been stayed pending the determination of these proceedings. With the matter having been prepared for hearing previously, one can well understand Harper J's attitude to keeping the matter on foot.
4. The issues in the proceedings appear to be fairly narrow. There is an issue as to whether an amount of money apparently paid by the first respondent to the first applicant was a loan or a gift. On the assumption that it is established that it is a loan, the first respondent seeks to enforce that loan against two items of property said to be held by the first applicant. The first is what is asserted to be his interest in a property at Suburb Q, with the first applicant's interest said to be of the order of $2.283 million. The property is owned by the first applicant's parents, the second and fourth applicants, and the first applicant's interest is said to arise by way of a resulting trust. The second item of property is an amount held in a trust account by a conveyancer with the first applicant's interest being of the order of $170,000.
5. In addition, there is an amount of approximately USD2 million of cryptocurrency held in an account in the name of the first applicant. The first applicant has filed an affidavit over the weekend explaining the cryptocurrency, which was not mentioned in his financial statement. He asserts that he has lost the money because he is unable to withdraw it.
6. There is also an issue as to whether the first respondent is liable to pay damages pursuant to a usual undertaking as to damages in relation to certain injunctions that were obtained.
7. One issue that arises, at least for me, from the state of facts is whether or not the court has jurisdiction to hear these issues given there are no orders sought under s 79 of the Family Law Act 1975 (Cth), but that is a matter for another day.
8. Over the weekend the first applicant filed an Application in a Proceeding seeking the vacation of the hearing on the grounds that senior and junior counsel are unavailable to appear for the applicants today. That is, his solicitors have made reasonable attempts to obtain replacement counsel but have been unsuccessful. In his affidavit filed 23 March 2025 the instructing solicitor said "I caused emails to be sent to six chambers specialising in family law matters in an attempt to secure alternative counsel for the final hearing. However, no counsel was available at such short notice, particularly in the absence of sufficient funds in trust" (paragraph 12). Mr Kabilafkas of counsel, who appears for the applicants this morning, is instructed to appear only on the adjournment application and, I infer, will seek to be excused if the adjournment application was not granted.
9. Save for what I am about to mention, these facts may well provide a proper basis for an adjournment. However, as appears from the affidavit of the first applicant's solicitor, the unavailability of counsel at short notice came with a caveat which was the absence of sufficient funds in trust. Indeed, the solicitor included the following in his affidavit:
   1. Our firm operates under the standard Costs Agreement prescribed by the Law Society of New South Wales. Pursuant to the Termination clause in the Costs Agreement between our firm and the [applicants], if the client is unable to settle any unpaid invoices or pay the future costs, our firm reserves the right to terminate our legal services and cease to act for the client.

1. The first applicant's financial statement filed 22 February 2025 discloses average weekly income of $689, no property whatsoever, and $1.25 million in liabilities. He has no apparent means with which to pay his solicitors.
2. In his affidavit explaining the cryptocurrency, the first applicant has asserted he borrowed the funds for that investment from his parents. However, there is no evidence before me this morning to which I have been taken which indicates the financial position of his parents, the second and fourth applicants, or their willingness to fund this litigation. Indeed, their attitude to litigation seems to be summed up by their non-appearance today, apparently because they had to look after school-aged children.
3. These matters combine to give me great concern as to whether or not there is any advantage to be gained by adjourning proceedings due to the unavailability of counsel. Quite simply if there are not the funds available to pay them, and there does not seem to be, there is then no point in adjourning the proceedings as it will simply be delaying the inevitable.
4. I accept the submission made on behalf of the first applicant that the first, second and fourth applicants will need some time in the absence of their lawyers to prepare the matter. I am not entirely sure that will be necessary because it seemed to me that if indeed there were funds, at least the solicitors for those applicants would be able to get on top of the matter sufficiently to be able to run it. However, if they do not then it is appropriate that the individuals have some time to do so. Therefore, I propose to grant the adjournment sought but on a limited basis so that the matter will now proceed at 10.00 am on Thursday 27 March 2025.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.