Plaintiffs/Defendants by Counterclaim v Defendant/Plaintiff by Counterclaim

1 By summons filed 17 April 2024, the Defendant seeks an order that this proceeding be transferred to the Federal Circuit and Family Court of Australia (Division 1) ('FCFCA Div 1') pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), alternatively, pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic).

2 For the reasons set out below, I will order that this proceeding be transferred to the FCFCA Div 1 pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

3 Ms Kathryn Yang and Mr John Yun are former spouses who, during the course of their marriage, operated an extensive property development business. Ms Yang and Mr Yun set up numerous companies for the purposes of managing that business. The directorships and shareholdings of these corporate entities were changed many times over the course of the marriage and the ownership of some of these entities remains in dispute.[1]

4 On 12 April 2023, Ms Yang commenced a proceeding which is currently before the FCFCA Div 1 ('Family Court Proceeding'). This proceeding is an application under s 79A of the Family Law Act 1975 (Cth) ('Family Law Act') to set aside final orders made by the Registrar for property settlement between Ms Yang and Mr Yun on 1 October 2020.[2]

5 The parties to the Family Court Proceeding are:[3]

(a) Ms Yang (the Applicant);

(b) Mr Yun (the First Respondent);

(c) Kadesh Yun Pty Ltd (the Second Respondent); and

(d) LPY Investments Pty Ltd (the Third Respondent).

6 The issues for determination in the Family Court Proceeding involve, among other things, consideration of the value of the parties' interests in various entities, relevantly including:[4]

(a) He Run Pty Ltd ('He Run') (of which Mr Yun is the sole director and shareholder);[5]

(b) LPY Investments Pty Ltd ('LPY') (of which Ms Yang is a director and secretary);[6]

(c) JD Manningham Pty Ltd ('JD Manningham') (of which Mr Yun is the sole director);[7] and

(d) JY Property Pty Ltd ('JY Property') (an entity owned and controlled by Mr Yun).[8]

7 On 21 December 2023, LPY commenced proceeding S ECI 2023 06002 against JY Property, seeking orders that JY Property remove caveats lodged over certain properties. Justice Cosgrave found in favour of LPY, ordering that the caveat be withdrawn.[9] The question of transfer to the FCFCA Div 1 was not relevant to Cosgrave J's decision.

8 On 22 December 2023, Mr Yun and JD Manningham commenced proceeding S ECI 2023 06164 against Ms Yang seeking the removal of caveats lodged over certain properties. On 15 March 2024, Sloss J made an order by consent transferring that proceeding to the FCFCA Div 1. The order noted in 'Other Matters' that the material before the Court appeared to demonstrate a linkage between the facts relied on by Ms Yang to establish the alleged caveatable interest and the matters the subject of the Family Court Proceeding.

9 On 17 January 2024, the Plaintiffs commenced this proceeding which raises two distinct claims against LPY:

(a) The first claim is made by He Run to recover a management fee relating to work undertaken to develop properties.[10]

(b) The second claim is made by JD Manningham to recover a loan in the sum of $345,000, together with interest and costs.[11]

10 The current directors of LPY are Yan Wang, Hiu Miu Chu and Ms Yang. The shareholders of LPY are:

(a) Huan Bo Hai Group Pty Ltd as to 20 ordinary shares;

(b) Equity Realty Development (Australia) Co Pty Ltd as to 50 ordinary shares;

(c) LBZ Pty Ltd as to 20 ordinary shares;

(d) RZL Pty Ltd as to 20 ordinary shares;

(e) Kadesh Yun Pty Ltd (an entity owned and controlled by Ms Yang) as to 45 ordinary shares; and

(f) JY Property Pty Ltd (an entity owned and controlled by Mr Yun) as to 45 ordinary shares.[12]

11 LPY is also the trustee of the LPY Investments Hybrid Trust.[13] It is disputed as to who holds the units in that trust.[14]

12 By its Defence and Counterclaim dated 28 February 2024, LPY denies that He Run is entitled to the management fee. LPY also joins Mr Yun as a Defendant by Counterclaim, alleging that Mr Yun has breached his director's duties to LPY by causing LPY to make part payments of the management fee and to enter a deed in relation to the management fee.[15]

13 Section 5(1) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (Cth) ('Commonwealth Act') provides:

(1) Where:

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court); and

(b) it appears to the first court that:

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) and it is more appropriate that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia (Division 1);

(ii) having regard to:

(A) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross‑vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Federal Circuit and Family Court of Australia (Division 1), the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Federal Court or the Federal Circuit and Family Court of Australia (Division 1);

(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross‑vesting of jurisdiction; and

(C) the interests of justice;

it is more appropriate that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia (Division 1), as the case may be; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia (Division 1);

the first court shall transfer the relevant proceeding to the Federal Court or the Federal Circuit and Family Court of Australia (Division 1), as the case may be.

14 Section 5(1) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (Vic) ('Victorian Act') provides:

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court; and

(b) it appears to the Supreme Court that -

(i) [repealed]

(ii) having regard to -

(A) whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court;

(B) the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and

(C) the interests of justice -

it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be -

the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be.

15 A comparison of these legislative provisions appears to suggest that there is greater scope for transfer of a proceeding under s 5(1) of the Commonwealth Act. While the Commonwealth Act requires the proceeding to be transferred if any of the provisions of ss 5(1)(b)(i), (ii) or (iii) are satisfied, the Victorian Act mandates transfer only if the provisions of s 5(1)(b)(ii) are satisfied.

16 Sub-sections 5(1)(b)(i) and (iii) of the Victorian Act were repealed following the decision of the High Court in Re Wakim; Ex parte McNally in which the majority held that a state legislature could not confer state jurisdiction on a federal court.[16]

17 There is substantial authority in this Court that an applicant for transfer of a proceeding may rely on either the Victorian Act or the Commonwealth Act.[17]

18 What is less clear is whether an applicant for transfer may rely on ss 5(1)(b)(i) and (iii) of the Commonwealth Act or only on s 5(1)(b)(ii) of that Act.

19 The question appears only to have been squarely addressed in one case, S Pty Ltd v BV (No 2),[18] where Lansdowne AsJ reached the 'tentative conclusion' that the applicant for transfer of a proceeding to the Family Court may only rely on s 5(1)(b)(ii) of the Commonwealth Act.[19]

20 Lansdowne AsJ noted that her conclusion was inconsistent with the decision of Hollingworth J in PCM Nominees, where reliance was placed on ss 5(1)(b)(i) and (iii) of the Commonwealth Act in ordering that proceedings in this Court be transferred to the Federal Court.

21 More recently in Zhang, Osborne J also relied on ss 5(1)(b)(i) and (iii) of the Commonwealth Act in ordering that proceedings in this Court be transferred to the Federal Court.

22 There is no appellate authority on the question as an appeal does not lie from a decision in relation to the transfer or removal of a proceeding under either the Victorian Act or the Commonwealth Act.[20]

23 Given this uncertainty I will separately consider each sub-section of s 5(1)(b) of the Commonwealth Act.

24 The principles relevant to transferring proceedings under the legislative cross-vesting scheme are well-established. Justice Pritchard summarised them in these terms in reference to the equivalent provisions in the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA):

First, if it appears to the court to which the application is made that the criteria set out in the legislation for a transfer are established (such as that it is in the interests of justice that the proceedings be determined by another court), then the first court is required to exercise the power of transfer. No exercise of discretion arises: BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 421 [14] (Gleeson CJ, McHugh & Heydon JJ), 434 [62] (Gummow J, Hayne J agreeing (468) [177]), 481 [222] (Callinan J).

Secondly, no particular significance attaches to the plaintiff's choice of forum and a party applying for the transfer of proceedings to another court does not bear any burden of showing that the first court is a clearly inappropriate forum for the resolution of the litigation. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate to determine the proceedings: BHP Billiton Ltd v Schultz 421 [14] (Gleeson CJ, McHugh & Heydon JJ). A court dealing with a transfer application therefore applies the legislation without any kind of presumption as to where the balance of the interests of justice might lie: BHP Billiton Ltd v Schultz 421 ‑ 422 [14] ‑ [16], 425 [25] (Gleeson CJ, McHugh & Heydon JJ) 436 [69], 437 [72], 439 [77] (Gummow J, Hayne J agreeing [177]), 465 ‑ 466 [167] ‑ [169] (Kirby J).

Thirdly, the interests of justice are not the same as the interests of one party, and the Cross‑vesting Act should not be applied in a way that favours the rights of one party to litigation over another: BHP Billiton Ltd v Schultz 421 [15] (Gleeson CJ, McHugh & Heydon JJ), 466 [169] (Kirby J), 481 [222], 492 [258] (Callinan J). The interests of justice necessarily include justice to all parties to the proceedings, and it may also be necessary to take into account interests wider than those of the parties to the proceedings. Nevertheless, the interests of the respective parties, which might in some respects be common and in other respects conflicting, will arise for consideration. The justice referred to in s 5 of the Cross‑vesting Act is not divorced from practical reality: BHP Billiton Ltd v Schultz 421 [15] (Gleeson CJ, McHugh & Heydon JJ).

Fourthly, whether it is more appropriate, or in the interests of justice, that one court rather than another determine a particular matter will require an analysis of all of the circumstances of the particular case. The decision calls for a 'nuts and bolts' management decision as to which court is the more appropriate to hear and determine the substantive dispute: BHP Billiton Ltd v Schultz [420 ‑ 421 [13] (Gleeson CJ, McHugh & Heydon JJ, citing Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 713 ‑ 714 (Street CJ)). The sorts of factors which will be relevant to determining which court is the more appropriate to determine the proceedings and where the interests of justice will lie, include questions of cost, efficiency, expense and the specialist nature of one or other court in relation to the subject of the litigation: BHP Billiton Ltd v Schultz [421 ‑ 424 [15] ‑ [21] (Gleeson CJ, McHugh & Heydon JJ).

Finally, whether the transfer of proceedings is in the interests of justice is a value judgment to be made having regard to the circumstances of the case: Seymour v Devine and Ors [2003] WASC 260 [10] (Pullin J, citing Dawson v Baker (1994) 120 ACTR 11 , 14 and Hoddell v Hoddell Pty Ltd [1999] WASC 156 [17] (Murray J)).[21]

25 Analysing the particular elements of ss 5(1)(b)(i), Greenwood J made the following observations in Amalia Investments Ltd v Virgtel Global Networks N.V. (No 2):[22]

A relevant proceeding arises out of another proceeding if there is some causal element between the two even if the causal element is not "direct or proximate": Re Hamilton-Irvine (1990) 101 FLR 11 at 15-16; 94 ALR 428 at 432. A pending proceeding relates to another proceeding if the two are associated or connected: Re Hamilton-Irvine at 16-17; 433; Leithead v Leithead (1991) 109 FLR 177; Hoddell v Hoddell Pty Ltd [1999] WASC 156; Armstrong v Armstrong [2004] WASC 121; [2004] FLC 93-190 at [49]- [56]; Bell Group Ltd v Westpac Banking Corporation [2000] FCA 439; (2000) 104 FCR 305 at [186]- [203]. A proceeding is related to another proceeding where "a substantial and common question" arises in both proceeding (Mattock v Mattock (1989) 97 FLR 112 at 115 per McLelland J) or where the "facts and circumstances in the two proceedings ... appear to be intertwined" (Re Green [2011] VSC 155 at [21] per Almond J). In Buckley v Gibbett, the two proceedings were found to be related on the footing of the "essential commonality of facts and of parties" thus satisfying the "requirements of relationship" per RD Nicholson J at 560F.[23]

26 The Defendant submitted that there is a common substratum of facts shared by the two proceedings. The claims that the Plaintiffs make in these proceedings arise directly from the businesses that Mr Yun and Ms Yang have carried on in the course of their marriage. The Defendant points to the fact that Mr Yun himself first raised the two claims alleged in this proceeding in affidavits he swore in the Family Court Proceeding.[24]

27 The Defendant further submitted that the management fee deed relied upon was entered into in June or July 2023 during the course of the Family Court Proceeding to forestall a judgment of Wilson J made in that proceeding.[25]

28 The Defendant submitted that the interpretation and application of the relevant provisions of the Family Law Act, in particular the exclusive jurisdiction of the FCFCA Div 1 in family law matters and alteration of property interests pursuant to s 79, mean that the monetary claims that He Run and JD Manningham make are matters that the FCFCA Div 1 will have to assess to determine whether, and to what extent, they diminish the matrimonial asset pool.[26]

29 The Defendant submitted that, at the most basic level, it is not in the interests of justice that the issue of contributions and the parties' respective interests in their property be the subject of two separate proceedings in different courts, pointing to the risk of conflicting decisions and the duplication of costs and waste of resources.[27]

30 Finally, the Defendant submitted that the exclusive jurisdiction of the FCFCA Div 1 in family law matters is decisive in terms of the interests of justice. The FCFCA Div 1 must address contributions and the parties' interests in their businesses. This Court cannot make orders under Family Law Act. The Defendant submitted that this Court may well infer that Mr Yun is engaged in 'unseemly attempts to secure a first finding from one court rather than another',[28] possibly to then found an argument in the FCFCA Div 1 that the management fee and the alleged loan are now res judicata or an Anshun or issue estoppel arises.[29]

31 The Plaintiffs submitted that there is insufficient commonality of subject matter and issues between the two proceedings. The Plaintiffs point to the difference in parties between the two proceedings; the connection between the two seems to be limited to current valuation which is relevant only if Ms Yang's application in the Family Court Proceeding succeeds. Each proceeding is otherwise concerned with distinctly different claims, parties, and temporal context.[30]

32 The Plaintiffs submitted that the transfer of this proceeding to the FCFCA Div 1 is prejudicial to their interests, as well as to other parties who have no interest in the Family Court Proceeding, but are interested in the outcome of this proceeding including the directors of LPY and shareholders or unitholders of LPY and JD Manningham.[31]

33 On the question of jurisdiction, the Plaintiffs argued that, but for the relevant cross-vesting legislation, the FCFCA Div 1 does not have jurisdiction to hear the claims for debt recovery and breach of contract brought by He Run and JD Manningham in this proceeding.[32]

34 The Plaintiffs further submitted that this proceeding ought not be transferred to the FCFCA Div 1 as JD Manningham 'will suffer irreparable prejudice because it will be unable to utilise the summary judgment procedure in the Supreme Court of Victoria to recover its loan from LPY in an efficient and timely manner'.[33]

35 Finally, the Plaintiffs submitted that the FCFCA Div 1 ought to await the outcome of this proceeding before determining any allocation of matrimonial property including the value of Mr Yun's interests in LPY and JD Manningham (through his entity JY Property Pty Ltd) and Ms Yang's interest in LPY (through her entity Kadesh Yun Pty Ltd), given the powers of the FCFCA Div 1 in respect of property under ss 79 and 79A of the Family Law Act do not extend to property other than matrimonial property.[34]

Section 5(1)(b)(i)

36 I am satisfied that the proceeding issued in this Court is related to the Family Court Proceeding for the following reasons.

37 First, the Plaintiffs (He Run and JD Manningham) are companies controlled by Mr Yun and the Defendant (LPY) is a company controlled by Ms Yang. Mr Yun is also a Defendant by Counterclaim. Mr Yun and Ms Yang as former spouses are the principal parties to the Family Court Proceeding. JD Manningham and LPY are also parties to the Family Court Proceeding.

38 Secondly, the transactions which are the subject of the claims made by He Run and JD Manningham against LPY in the proceeding in this Court are the subject of contested affidavit evidence filed in the Family Court Proceeding.[35]

39 Thirdly, the value of various corporate entities including He Run, JD Manningham and LPY are matters to be determined in the Family Court Proceeding. The outcome of the claims brought in this proceeding will affect the value of those corporate entities.

40 I am also satisfied that it is more appropriate that the proceeding in this Court be determined by the FCFCA Div 1 for the following reasons.

41 First, it is more efficient that all evidence in respect of the disputed transactions involving He Run, JD Manningham and LPY be given at one time before the same judge.

42 Secondly, as the FCFCA Div 1 is already seized of the dispute between Ms Yang and Mr Yun concerning their joint and separate interests in various corporate entities, it is appropriate that the FCFCA Div 1 deal also with the claims raised in the proceeding in this Court which will directly affect the value of those corporate entities.

43 Thirdly, I do not accept the Plaintiffs' submission that it is appropriate that the FCFCA Div 1 await the outcome of this proceeding before determining any allocation of matrimonial property. The Family Court Proceeding is well advanced whereas the proceeding in this Court was commenced this year. Given that pleadings in the proceeding in this Court have now closed it ought be possible for its further conduct to be managed by the judge in the FCFCA Div 1 with carriage of the Family Court Proceeding.

Section 5(1)(b)(ii)

44 Sub-paragraph (A) requires regard to be had as to whether the proceeding in this Court, or a substantial part of it, would have been 'incapable of being instituted' in this Court and 'capable of being instituted' in the FCFCA Div 1, ignoring cross-vesting legislation and accrued jurisdiction. While the Plaintiffs' claim does not rely on federal legislation, the Defence and Counterclaim plead breaches of ss 181 and 182 of the Corporations Act 2001 (Cth).

45 Sub-paragraph (B) requires regard to be had to the 'extent to which' the 'matters for determination' in this proceeding arise under, or involve questions 'as to the application, interpretation or validity of a law of the Commonwealth' which, apart from cross-vesting, would not be within the jurisdiction of this Court. As mentioned, determination of the Defence and Counterclaim will involve questions as to the application and interpretation of ss 181 and 182 of the Corporations Act 2001 (Cth).

46 Sub-paragraph (C) requires regard to be had to the 'interests of justice'.

47 In S v BV (No 2), Lansdowne AsJ noted that in Valceski v Valceski,[36] Brereton J ordered that a proceeding be transferred under s 5(1)(b)(ii) having regard to the interests of justice, notwithstanding that neither sub-paragraphs (A) nor (B) were satisfied. Lansdowne AsJ said:

Brereton J in that case held that a determination that the transferee federal court has jurisdiction is necessary before the transferor court can be satisfied that it is 'more appropriate' that the proceeding be transferred to that transferee court. Jurisdiction of a federal court can be either original or accrued. Sub‑paragraph (A) requires the transferring court to ignore accrued federal jurisdiction, and so is limited to consideration of original federal jurisdiction. I conclude that accrued jurisdiction can be considered in the context of sub-paragraph (C) and, where neither (A) nor (B) favour transfer, must be found if a transfer is to be ordered.[37]

48 I am satisfied that it is in the interests of justice for the proceeding issued in this Court to be transferred to the FCFCA Div 1 for the following reasons.

49 First, I note that the FCFCA Div 1 has accrued jurisdiction to deal with all of the claims raised in the proceeding.

50 Secondly, I refer to and rely on the matters set out in paragraphs 41, 42 and 43 above.

51 Thirdly, it is significant that, in March 2024, Mr Yun and JD Manningham consented to the caveat removal proceeding they had brought against Ms Yang being transferred to the FCFCA Div 1 and, in respect of that transfer, did not raise any of the objections they now raise.

52 Fourthly, the objection raised that JD Manningham will suffer irreparable prejudice because it will be unable to seek summary judgment of its claim if the proceeding is transferred to the FCFCA Div 1 is without foundation. As counsel for the Defendant noted, summary judgment is available under s 45A of the Family Law Act in respect of the whole or any part of proceedings if the FCFCA Div 1 is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.

53 Having regard to all of the matters required to be considered under s 5(1)(b)(ii), I am satisfied that it is more appropriate that the proceeding issued in this Court be determined by the FCFCA Div 1.

Section 5(1)(b)(iii)

54 This sub-section only requires consideration of the interests of justice. For the reasons set out in paragraphs 49-52 above I am satisfied that it is in the interests of justice for the proceeding issued in this Court to be transferred to the FCFCA Div 1.

55 I am satisfied that this proceeding should be transferred to the FCFCA Div 1 on the basis of either s 5(1)(b)(i), s 5(1)(b)(ii) or s 5(1)(b)(iii).

56 Accordingly, I will order that this proceeding be transferred to the FCFCA Div 1.

57 As the Defendant has succeeded on its application, I am inclined to order that the Plaintiffs pay the Defendant's costs of the application and that the parties' costs of the proceeding to date be costs in the proceeding to be transferred to the FCFCA Div 1. As there may be circumstances of which I am unaware that would displace the usual rule that costs follow the event, the parties are asked to confer and submit a consent minute in respect of the appropriate costs order. Failing agreement, I will hear the parties as to costs.

LPY INVESTMENTS PTY LTD (ACN 127 529 837) IN ITS OWN CAPACITY AND AS TRUSTEE OF THE LPY INVESTMENTS HYBRID UNIT TRUST

LPY INVESTMENTS PTY LTD (ACN 127 529 837) IN ITS OWN CAPACITY AND AS TRUSTEE OF THE LPY INVESTMENTS HYBRID UNIT TRUST

[1] Affidavit of Kathryn Yang affirmed 9 April 2024, [10]-[11].

[2] Defendant's Outline of Submissions [3]-[4]; Affidavit of Kathryn Yang affirmed 9 April 2024 [3], [6].

[3] Affidavit of Kathryn Yang affirmed 9 April 2024, [4].

[4] Affidavit of Kathryn Yang affirmed 9 April 2024, [17].

[5] Writ and Statement of Claim filed 17 January 2024, [1]-[2].

[6] Affidavit of Chong Hao Toh sworn 18 April 2024, [8].

[7] Affidavit of Chong Hao Toh sworn 18 April 2024, Exhibit CHT-1, 36.

[8] Affidavit of Chong Hao Toh sworn 18 April 2024, [8](f).

[9] LPY Investments Pty Ltd v JY Property Pty Ltd [2024] VSC 94, [70].

[10] Writ and Statement of Claim filed 17 January 2024; Affidavit of Chong Hao Toh sworn 18 April 2024, [6].

[11] Writ and Statement of Claim filed 17 January 2024; Affidavit of Chong Hao Toh sworn 18 April 2024, [11].

[12] Affidavit of Chong Hao Toh sworn 18 April 2024, [8].

[14] LPY Investments Pty Ltd v JY Property Pty Ltd [2024] VSC 94, [5] (Cosgrave J).

[15] Defence and Counterclaim filed 28 February 2024.

[16] (1999) 198 CLR 511, 573 (Gummow and Hayne JJ, Gleeson CJ and Gaudron J agreeing).

[17] Caltex Australia Petroleum Pty Ltd v Calypso Haulage Pty Ltd [2003] VSC 359 (Byrne J); [2008] VSC 341 (Hansen J); PCM Nominees (No 2) Pty Ltd v Brighton Bay Developments Pty Ltd [2007] VSC 17 (Hollingworth J) ('PCM Nominees'); Zhang v Zhang [2024] VSC 3 (Osborne J) ('Zhang').

[18] [2019] VSC 814 ('S v BV (No 2)').

[20] Jurisdiction of Courts (Cross‑vesting) Act 1987 (Cth) s 13; Jurisdiction of Courts (Cross‑vesting) Act 1987 (Vic) s 13.

[21] H v D [2012] WASC 291, [16]-[20]. Cited in Zhang (n 17), [44].

[22] [2011] FCA 1270; [2011] 198 FCR 248.

[24] Defendant's Outline of Submissions dated 18 April 2024, [10]; Affidavit of Kathryn Yang affirmed 9 April 2024, [24]-[26].

[25] Defendant's Outline of Submissions dated 18 April 2024, [10].

[28] Citing Fencott v Muller (1983) 152 CLR 570, 609 (Mason, Murphy, Brennan and Deane JJ).

[29] Defendant's Outline of Submissions dated 18 April 2024, [11].

[30] Plaintiffs' Outline of Submissions dated 18 April 2024, [3]-[6].

[33] Affidavit of Chong Hao Toh sworn 18 April 2024, [36].

[34] Plaintiffs' Outline of Submissions dated 18 April 2024, [11].

[35] Affidavit of Kathryn Yang affirmed 9 April 2024, [22]-[30].

[36] [2007] NSWSC 440; (2007) 70 NSWLR 36.

[37] S v BV (No 2) (n 18) [149].