Li v Tang

Supreme Court of NSW|2022-06-15|Before: Cavanagh J

REVISED EX TEMPORE Judgment

Before the Court are two motions; one brought by the plaintiff, filed on 20 May 2022, which I granted leave to amend today, and the other brought by the second defendant, filed on 25 May 2022.
Both motions arise out of attempts by the plaintiff to enforce a judgment obtained by the plaintiff against the first defendant, Mr Frank Tang, on 31 August 2021 in the amount of $1,909,356.39.
In her motion, the second defendant seeks orders that: 1. A caveat registered against title reference 61/DP605386 by the plaintiff be removed (the second defendant no longer seeks this order as it turns out that there is no caveat registered on the property); and 2. The writ for levy of property registered against that same title by the plaintiff be removed.
In his amended motion, the plaintiff seeks orders that: 1. The motion filed by the second defendant, to which I have just referred, is stayed either until further order of the Court or the determination of the Federal Circuit and Family Court of Australia (Division 2) (the FCFCOA) proceedings which have been commenced by the plaintiff; and 2. In the alternative, the second defendant be restrained from: 1. Taking any steps to register any transfer of the first defendant's interest in the property to the second defendant; and 2. Taking any step to deal with or encumber the first defendant's interest in the property pending determination of the proceedings which the plaintiff has commenced in the FCFCOA.
Mr Reynolds appeared for the plaintiff and Mr Gee appeared for the second defendant. There was no appearance by the first defendant and the trustee in bankruptcy indicated that he would not be appearing. I received extensive written submissions and helpful oral submissions from both counsel. I will deal in a little more detail with the parties' submissions during the course of this judgment.

Background

In 2020 the plaintiff commenced proceedings against four defendants, being Frank Tang as first defendant, Yanjuan Guan as second defendant, National Australia Bank Pty Ltd as third defendant and Monaco Solicitors Pty Ltd as fourth defendant, seeking amounts said to be owed by the first defendant to him, as well as a judgment for possession of property. That matter came on for hearing before Schmidt AJ on 15 June 2021.
On 31 August 2021 her Honour entered a judgment for the plaintiff against the first defendant and dismissed the balance of the plaintiff's claims.
The next day, being 1 September 2021, the first and second defendants (being husband and wife) entered into a binding financial agreement (the BFA) in accordance with s 90C of Family Law Act 1975 (Cth).
As set out in the recitals to the BFA, the first and second defendants entered into a marriage on 9 October 2010 in China. They say that since 1 September 2020 they had been separated, albeit they were occupying separate rooms within the matrimonial home. They say they had an arrangement for the care of their children and that they intended to apply for a divorce within 12 months from the date of the agreement.
The assets and liabilities of the first and second defendants were set out in the agreement. The only asset of any real substance was the property situated at Oatlands being the subject of these applications, which was said to have a value of $2.2 million.
The first defendant also disclosed having cash in hand of a further $690,000, which he said he had withdrawn from the second defendant's bank account and from a bank account of a company for the purposes of paying debts and expenses of a company which he operated. The parties also disclosed that the property was subject to two loans in the total sum of $1.381 million, leaving equity of approximately $800,000.
Subsequent to the entry of judgment, the first defendant filed a debtor's petition and a trustee in bankruptcy was appointed (Mr Danny Vrkic).
For the purposes of enforcing the judgment which the plaintiff had obtained against the first defendant, the plaintiff registered a writ of execution as against the property. It seems that when the sheriff went to execute the writ, the second defendant refused access to the property and the judgment remains unsatisfied.
Prior to the BFA, the property was held by the first and second defendants as joint tenants. The effect of the BFA was to transfer the first defendant's interest in that property to the second defendant. Thereafter, the first defendant applied for bankruptcy.
Plainly, the effect of that which had happened very shortly after the judgment against the first defendant was to remove from the available assets the first defendant's interest in the property. Further, the trustee in bankruptcy has called for proofs of debt and, according to at least a preliminary report of the trustee, there are a substantial number of unsecured creditors, amounting to $8 million. Of that amount, the sum of $5 million is said to be a guarantee given by the first defendant to a company.
In any event, subsequent to the appointment of the trustee, the solicitors for the second defendant wrote to the trustee, bringing the trustee's attention to the BFA and suggesting that the obligation on the trustee was to transfer the first defendant's interest in the property to the second defendant.
Further, the solicitors for the second defendant informed the trustee that a caveat and writ for levy of property had been registered against the title of the property and requested that the trustee take steps to have the caveat and writ removed.
There followed a dispute and negotiations between the trustee and the second defendant, with the second defendant insisting that the trustee transfer the first defendant's interest in the property to her pursuant to the BFA.
The trustee did not agree to do so at that time but, following further discussions between the second defendant and the trustee, they entered into of a deed of settlement and release dated 14 March 2022.
As set out in the deed of settlement and release, the trustee agreed to transfer the interest of the bankrupt first defendant in the property to the second defendant on payment by the second defendant of the sum of $135,000, which was to be paid in two tranches.
As I understand the position, the second defendant has paid the full amount and, in accordance with the agreement, the trustee has indicated that he is willing to provide a transfer in accordance with the terms of the deed of settlement and release.
However, whilst all this was happening, the plaintiff filed an application in the FCFCOA seeking: 1. Leave to commence proceedings in accordance with ss 27(1) and 58(3)(b) of the Bankruptcy Act 1966 (Cth); 2. Orders under s 90K(1)(aa) of the Family Law Act to set aside the BFA; and 3. Further orders as the Court considers just and equitable for the purpose of preserving or adjusting the rights of persons who are parties to the BFA and any other interested persons.
The proceedings in the FCFCOA are at an early stage but, as will be apparent from the two notices of motion, the plaintiff has concerns that the effect of that which the first and second defendant have done through the BFA and then through the deed of settlement and release is to remove the property from any available fund to pay the judgment debt.
The plaintiff seeks to use the provisions in the Family Law Act to set aside what I will describe as "the arrangement" that ends up with the second defendant owning all of the property subject to mortgages whereas, on the date the judgment was entered, the first and second defendants were joint tenants.

Principles to be applied

The plaintiff seeks both a stay of the motion filed by the second defendant and a form of asset preservation order pursuant to either Uniform Civil Procedure Rules 2005 (NSW) (UCPR) rr 25.11 or 25.14.
As is well known, the Court has a broad discretion in determining whether to make an order under UCPR r 25.11. The purpose of the rule is to prevent abuse of the court processes by preventing a defendant or judgment debtor from diminishing or dissipating assets which might be otherwise available for the enforcement of a judgment of the Court.
The party seeking such an order bears the onus of establishing that there is a material risk of asset dissipation. [1] A party seeking such an order should provide an undertaking to damages.
I note that counsel for the plaintiff has been instructed to and has offered an undertaking to damages on behalf of his client.
Importantly, the effect of the orders sought by the plaintiff is not to confer any interest on the plaintiff or give the plaintiff priority over other competing creditors, but rather to prevent the dissipation of assets. [2]
Further, as set out in UCPR r 25.13, the Court may make a freezing order or an ancillary order against a respondent even if the respondent is not a party to a proceeding in which substantive relief is sought against the respondent.
Of course, in this case, no orders were made against the second defendant in the original proceedings but the fact that the plaintiff is not entitled to enforce the judgment against the second defendant does not preclude the Court from making an order against her should the circumstances warrant such an order.
The threshold requirement for the exercise of the power to grant such an order is the Court's satisfaction that a judgment will be wholly or partly unsatisfied either as a result of irregular or improper dealing in assets or the judgment debtor absconding.
The plaintiff's application for a stay of the second defendant's motion is made pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (CPA). The Court may at any time stay proceedings either permanently or until a specified day.
In addition, the Court has an inherent power to grant a stay to prevent an abuse of its processes. [3]
The plaintiff submits that s 67 confers a discretion without identifying any particular criteria as relevant to the exercise of the power. The plaintiff refers to the well-known statement in State of New South Wales v Plaintiff A [4] to the effect that it may be understood to cover a wide variety of circumstances to prevent abuse of the Court's processes.

The plaintiff's contentions

The plaintiff contends that the Court should make an asset preservation or freezing order preventing the second defendant from dealing with the property in any way and that the Court should decline to entertain the second defendant's motion for the removal of the writ at this time. The effect of both orders would be that there would be no order for the removal of the writ and that the second defendant would be precluded from dealing with the property in any way.
The plaintiff submits that I should make both orders sought in the motion to prevent an abuse of the Court's processes, having regard to the history of events which I have outlined and the circumstances which led to the deed of settlement and release between the trustee and the second defendant.
Somewhat curiously, the plaintiff's response to the second defendant's motion is to suggest that the orders that the second defendant seeks are somewhat unnecessary because the six‑month period of the writ has expired. The plaintiff acknowledges that in accordance with s 105A of the Real Property Act 1900 (NSW), the Registrar‑General is only prohibited from registering another dealing during the protected period and that the protected period as set out in s 105A(9) is six months.
As such, the plaintiff accepts that the protected period has now expired and that the second defendant could simply apply to the Registrar‑General for removal of the writ. The second defendant's response to this suggestion is that the second defendant does not have the financial capacity to make that application and cannot do so without finance. It is perhaps a bit of a chicken‑and‑egg submission such that, if the second defendant cannot get finance, she cannot have the writ removed.

The second defendant's contentions

The second defendant says that, having entered into a deed of settlement and release with the trustee, the BFA has no relevance at this time. The second defendant says that, on the face of the documents, there is no dispute between the trustee and the second defendant in respect of the transfer of the property. The second defendant has paid the sum of $135,000 and the trustee has agreed to transfer the property.
The second defendant submits that there is no utility in a stay because the motion for a stay proceeds on two false premises. The first false premise is said to be that the plaintiff has applied to the FCFCOA to set aside the deed of settlement and release. The second defendant refers in particular to the application filed in the FCFCOA and the affidavit in support filed by the plaintiff. The second defendant says that, as set out in para 3 of that affidavit, the plaintiff is only seeking to set aside the BFA and not set aside the deed of settlement and release. The second defendant says that this is also apparent from the terms of para 1 of the application in the FCFCOA. The second defendant points out that the plaintiff has not amended his application to include any claim to set aside the deed of settlement and release.
The second false premise said to arise is that the second defendant says that the FCFCOA does not have jurisdiction to set aside the deed of settlement and release under s 90K(3) of the Family Law Act.
The second defendant says that she would be significantly prejudiced by any asset preservation order or stay of her motion on the basis that: 1. She has obtained refinance of the loans on the property at a lesser interest rate, and for a higher sum ($1.55 million approximately); and 2. She wishes to use her interest in the whole of the property as a form of security for an undertaking she has given as to damages in the Supreme Court of South Australia. I take that suggestion to be that this is the only security she could offer and that she might be significantly prejudiced if she is not able to offer that security.
The second defendant also submits that there is no utility in the preservation order sought by the plaintiff. The first defendant's interest in the share of the property vested in the trustee on the event of his bankruptcy. The proper course was for the plaintiff to commence proceedings for a review of the trustee's decision in accordance with s 90-15 of the Insolvency Practice Schedule (Bankruptcy) [5] and seek interlocutory relief against the trustee. In circumstances in which the plaintiff has not taken what is said to be the appropriate steps against the trustee, the Court should decline to exercise its jurisdiction to restrain the second defendant from dealing with the property.
Further, the second defendant submits that there is no evidence of a prima facie case that the deed of settlement and release could be set aside. In the end, the second defendant's position is that the plaintiff is not seeking any orders in the FCFCOA which would allow that Court to set aside the deed of settlement and release, and further that the FCFCOA does not have the power to do so.
In terms of the second defendant's motion, the second defendant says that she requires an order removing the writ from the title because the new financier will not deal with her or provide the finance whilst the writ remains on the title.

Determination

The issues involved in these motions are somewhat complex as they include issues relating to the proper construction of the Family Law Act and the Real Property Act, as well as the Uniform Civil Procedure Rules.
The approach to these motions should be to consider firstly whether the plaintiff is entitled to the asset preservation orders that he seeks.
I say this because, if I make orders in the form contained in the amended motion, preventing the second defendant from dealing with the property, then the second defendant will be prevented from further encumbering the property and seeking to register any transfer which she might obtain from the trustee in bankruptcy. As the plaintiff submits, I would in effect be maintaining the status quo whilst the plaintiff pursued the application in the FCFCOA.
The status quo is that the first and second defendants remain tenants in common of the property. They both have an interest in the property. The effect of the registration of the transfer would be to transfer the first defendant's interest to the second defendant, leaving the second defendant to hold the whole of the property subject to any mortgage. She would then be able to refinance, as she proposes to do.
It is important to emphasise that I am not at this stage determining the meaning or effect of the application which the plaintiff is pursuing in the FCFCOA but I do not agree with the second defendant's submission that on a proper reading of the application filed by the plaintiff in the FCFCOA, the plaintiff is not pursuing any orders in respect of the deed of settlement and release.
As set out in para 1(a) of the plaintiff's application filed in the FCFCOA, the plaintiff seeks orders under s 90K(1)(aa) of the Family Law Act to set aside the BFA. However, in para 1(b), the plaintiff seeks further orders upon the Court setting aside the BFA pursuant to s 90K(3) of the Family Law Act, being further orders that the Court considers just and equitable for the purposes of preserving or adjusting the rights of persons who were parties to the BFA and any other interested persons.
Whilst there may be an argument as to the meaning of para 1(b), I prefer the plaintiff's construction. No doubt if this is a real issue between the parties going forward, the application can be clarified but I am not satisfied that there would be no utility in an asset preservation order because no order is being sought in the FCFCOA in respect of the deed of settlement and release.
Further, I am not satisfied that there is no reasonable argument that such orders can be obtained from the FCFCOA.
This issue was considered by the Family Court in Grainger v Bloomfield & Anor. [6] At para [69] and following of the judgment, the Court considered the extent of the power under s 90K(3) of the Family Law Act.
Section 90K(3) is in the following terms: " … A court may, on an application by a person who was a party to the financial agreement that has been set aside, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons …"
In Grainger, the appellant contended that the power in s 90K(3) was limited as being consequential to the setting aside of a financial agreement in order to reverse transactions effected under that agreement or to make adjustments to achieve a restoration in substance.
On the other hand, the respondent contended that the power was a broader power to make such orders as it considers just and equitable for the purpose of preserving or adjusting the rights of the parties to the financial agreement or other limited persons.
The plaintiff submits that, even on the more limited interpretation of s 90K(3), the orders sought by the plaintiff (which would include an order setting aside the deed of settlement and release) would fall within the more limited power. The position of the second defendant is that s 90K(3) would not permit the FCFCOA to make the orders sought by the plaintiff.
As set out in Grainger there may be some uncertainty as to the extent of the power under s 90K(3) but I accept that the plaintiff has at least a reasonable argument that the power conferred by s 90K(3) would extend to the making of an order setting aside not just the BFA but the deed of settlement and release.
I do not accept the no utility point raised by the second defendant.
I will deal now with the other factors raised by the second defendant in opposition to the exercise of the discretion to make an asset preservation order.
Firstly, the evidence in respect of the South Australian proceedings and the need for the second defendant to have the property as security for the undertaking as to damages is limited.
I was directed to a letter from the solicitors for the other party in the South Australian proceedings, Piper Alderman, dated 31 May 2022. At para 18 of that letter, it is suggested that the second defendant had provided evidence that she is a joint tenant in the property. The plaintiff submits that, based on that letter, the second defendant was not offering up the whole of the property as security. Further, there is no evidence that the second defendant has been required to offer up the whole property as security.
This was clarified by Mr Gee. It seems that the second defendant would like to offer up the property as security if necessary. Although the matter is back in Court tomorrow in South Australia, there is no suggestion that the proceedings in South Australia will be stayed or not proceed if the second defendant does not have the whole of the property to offer up as security.
Secondly, the second defendant suggests that, as is evidenced by the refinancing documents, she would like to refinance at a lower interest rate than is currently being paid and increase the loan by approximately $200,000. As part of that proposed arrangement, some of the refinance will be used to pay off the existing loans and there will be an amount in cash paid to the second defendant.
Whilst I accept that the second defendant would like to refinance and obtain a loan at a slightly lower rate, this is in circumstances in which the plaintiff is seeking to set aside the agreement pursuant to which the property is being transferred to her. The effect of what the second defendant is seeking to do may be to reduce the interest rate but it is also to increase the size of the loan with a cash component to her.
The next matter of significance is that, as set out in her affidavit, the second defendant and the first defendant have separated and she had plans to take her two children to live in China with her family there. The COVID-19 pandemic travel restrictions prevented her from doing so. As such they have lived under the same roof until October 2021, despite separating earlier. She says they no longer live under the same roof.
During this hearing the second defendant offered an undertaking. That is the second defendant undertook to the Court that upon the transfer of the title and interest of the first defendant to her she would not sell, dispose of or encumber the property, other than encumber by way of a first registered mortgage securing the principal amount of no more than $1,500,000.
Presumably, that undertaking was given to establish that the risk of the first defendant dissipating the assets by selling the property was not significant. However, that undertaking does not really deal with the issue of the South Australian proceedings as, at least on what I understood to be the second defendant's submissions, she wanted to have the whole of the property so she could offer it up as some sort of security in those proceedings.
Whilst I acknowledge the undertaking, in the circumstances of this case, I am not satisfied that the undertaking has the effect of reducing the risk of the second defendant diminishing the assets.
The final point raised by the second defendant is that, having regard to the amount of the proofs of debt lodged with the trustee and the amount of the loans or mortgages on the property, even if the plaintiff is successful in his application in the FCFCOA, he will end up with something less than $150,000. In other words, this is all about the plaintiff seeking to recover an amount well under 10% of what the plaintiff is owed under the judgment.
The plaintiff submits in response that as yet there has been no testing of the proofs of debt; investigations are being carried out; and that I am not in a position to determine how much the plaintiff might recover if successful.
Further the amount that might be recovered is said not to be an important factor in the determination of the exercise of the discretion. Whilst the amount said to be in issue and recoverable may be relevant to the exercise of the discretion whether to make an asset preservation order, in this matter I agree with the plaintiff's submissions, particularly as there has been no investigation into the proofs of debt lodged.
In the end, I am satisfied that the orders sought by the plaintiff in the amended motion by way of a freezing or asset preservation order should be made.
I am satisfied that it is necessary to make such orders to prevent what may be an abuse of process by the first defendant in taking steps to dispose of his primary asset immediately after orders were made, the effect of which was a judgment of $1.9 million against him.
Again, it is not for me to say anything more about that other than to say that I am satisfied that the orders sought by the plaintiff are necessary to prevent a possible abuse of process. That is, the disposal of the primary asset by the first defendant to his wife under the Family Law Act, and then when a dispute arose with a trustee, entry into an agreement with the trustee by means of a payment of $135,000 for, in general terms, a 50% interest in a property valued at, as I understand it, $2.2 million.
In the circumstances of the undertaking of the plaintiff as to damages, I propose to make the orders sought in the plaintiff's amended motion for a preservation order.
As the plaintiff succeeded in obtaining an asset preservation order, the order for a stay is unnecessary. Indeed, Mr Reynolds tended to accept that as the protected period is expired, the order for a stay would be unnecessary. I do not propose to make the order for a stay.

The second defendant's motion

I will now deal with the order sought by the second defendant for the removal of the writ.
That is of little utility in the circumstances of the orders made in respect of the asset preservation order. In any event, at least in my view, as the protected period has expired, the second defendant does not need an order from the Court for the removal of the writ.
The second defendant could have applied directly to the Registrar‑General for removal of the writ. No evidence has been adduced to the effect that the second defendant could not afford to pay for such an application. As I understand it, the second defendant, said to be an unemployed person, has recently raised $135,000 to pay the trustee for the first defendant's interest in the property.
In any event, the orders I propose will preclude the second defendant from dealing with the property. In the circumstances, I do not propose to make any order directing the Registrar‑General to remove the writ from the property.
I make the following orders: 1. Upon the plaintiff, through his counsel, giving the usual undertaking as to damages (which the Court notes has been given), the Court orders that the second defendant be restrained from: 1. Taking any step to register any transfer of the first defendant's interest in the property situated at xx Oatlands NSW 2117 (folio reference in deposited plan 605386) (Property) to the second defendant; and 2. Taking any step to deal with or encumber the first defendant's interest in the Property pending the determination of the application SYG730/2022 for leave in the Federal Circuit and Family Court of Australia (Division 2) and, if leave is granted, the proceeding in respect of which leave is granted. 1. The plaintiff be directed to inform the second defendant of the determination of the Federal Circuit and Family Court of Australia (Division 2) in SYG730/2022 in respect of the grant of leave within 7 days of that court's determination. 2. The matter be listed for directions before Cavanagh J on 30 June 2023, unless: 1. Prior to this date, the Federal Circuit and Family Court of Australia (Division 2) has refused the application for leave in SYG730/2022 or it has dismissed the plaintiff's application in respect of which leave is sought, and the second defendant exercises liberty to, upon 7 days' notice, relist the proceedings before Cavanagh J prior to this date for further directions or to apply for further or other orders; or 2. The plaintiff exercises liberty to, upon 7 days' notice, relist the proceedings before Cavanagh J prior to this date for directions, or further or other orders. 1. The second defendant to pay the plaintiff's costs of: 1. The notice of motion filed by the second defendant on 21 April 2022; and 2. The notice of motion filed by the plaintiff on 20 May 2022.

Endnotes

Drama Unit Pty Ltd v Timothy James Cook as Administrator of Fearndale Holdings Pty Ltd [2019] NSWCA 276 at [29] (Leeming JA).
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [50] (Guadron, McHugh, Gummow and Callinan JJ).
See Jago v The District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46.
[2012] NSWCA 248 at [15].
Bankruptcy Act, Sch 2.
[2015] FamCAFC 221; (2015) 304 FLR 351. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2022

Insolvency Practice Schedule (Bankruptcy) Uniform Civil Procedure Rules 2005(NSW)

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