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[2021] FCA 691
Federal Court of Australia
2021-06-17
Moshinsky J
Original judgment source is linked above.
PENAL NOTICE TO: JUN YAN IF YOU (BEING THE PERSON BOUND BY THIS ORDER): (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. TO: JUN YAN This is a 'freezing order' made against you on 17 June 2021 by Justice Moshinsky at a hearing without notice to you after the Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order.
THE COURT ORDERS THAT: Introduction
Salvatore Algeri 28 May 2021
Salvatore Algeri 1 June 2021
Salvatore Algeri 16 June 2021
NAME AND ADDRESS OF PLAINTIFF'S LAWYERS Allens Level 37 101 Collins Street MELBOURNE, VICTORIA, 3000 Tel: (03) 9613 8561 Fax: (03) 9614 4661 Email: Matthew.Whittle@allens.com.au Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Introduction 1 By interlocutory process filed 16 June 2021, the plaintiff seeks freezing orders over the assets of Ms Jun Yan and other ancillary relief pursuant to rr 7.32 and 7.33 of the Federal Court Rules 2011 (the Rules). Although a short period of notice of the application was given, and Mr Guo appears today for Ms Yan, the application has proceeded on the basis that it is to be treated as an ex parte application. 2 The application is made in a context where the Court has already made freezing orders in the proceeding on earlier occasions. On 31 May 2021, the Court made freezing and ancillary orders against the first to third defendants: Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v Huang, in the matter of Royal Express Pty Ltd [2021] FCA 585 (Royal Express (No 1)). On 2 June 2021, the Court made freezing and ancillary orders against the fourth to seventh defendants: Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v Huang, in the matter of Royal Express Pty Ltd (No 2) [2021] FCA 593 (Royal Express (No 2)). Those orders were subsequently extended by orders made on 7 June 2021. 3 In support of the interlocutory application, the plaintiff relies on: (a) affidavits of Salvatore Algeri sworn 28 May 2021, 1 June 2021 and 16 June 2021; (b) an affidavit of Carly Donovan sworn 16 June 2021; (c) the plaintiff's outlines of submissions dated 31 May 2021, 1 June 2021, 7 June 2021 and 16 June 2021; and (d) the reasons for judgment in Royal Express (No 1) and Royal Express (No 2).
Background facts 4 The background to the interlocutory application is set out in the earlier judgments of the Court. 5 As detailed in Mr Algeri's third affidavit, the investigations into the affairs of the plaintiff are ongoing. 6 Since 7 June 2021: (a) The plaintiff has requested that the Court issue a subpoena to produce documents to Australia and New Zealand Banking Group Ltd (ANZ), which subpoena was issued on 9 June 2021 and served on 10 June 2021. (b) The receivers have identified transfers of funds from two ANZ accounts held in the plaintiff's name to an account held in the name of Ms Jun Yan, who is married to the first defendant, is a director and shareholder of the fourth defendant, and is a former shareholder of the plaintiff. (c) The receivers' investigations have revealed that between 13 July 2017 and 28 April 2020, a total of $8,639,522.80 was transferred from accounts in the name of the plaintiff to an account in the name of Ms Yan, despite the fact that Ms Yan is not a known customer or supplier of the plaintiff and there does not appear to be any proper basis for the plaintiff to have transferred these large sums of money to Ms Yan. (d) The receivers have identified one ANZ bank account in Ms Yan's name and two real property assets.
Consideration 7 The applicable principles are set out in Royal Express (No 1) at [3]-[4], [6], [30] and [32]. 8 In my view, on the basis of the matters set out in Mr Algeri's third affidavit, the three limbs relevant to the grant of freezing and ancillary orders are satisfied in relation to Ms Yan: (a) There is a good arguable case that Ms Yan has received funds from the plaintiff arising from contraventions of ss 181 and 182 of the Corporations Act 2001 (Cth) by the first and second defendants and that Ms Yan was involved in those contraventions. This is established by: the high value of the transfers from accounts of the plaintiff to accounts in the name of Ms Yan; the absence of any business or commercial relationship between Ms Yan and the plaintiff that would justify such payments; the fact that Ms Yan is the wife of the first defendant; the involvement of Ms Yan with the fourth defendant; and the previous involvement of Ms Yan with the plaintiff. (b) There exists a reasonable apprehension that Ms Yan's assets will be dissipated. As noted by O'Bryan J in Royal Express (No 1) at [31] and in Royal Express (No 2) at [19], there is a reasonably arguable case of dishonesty and misappropriation of funds in respect of the defendants. Mr Algeri's third affidavit provides evidence to support an arguable case that Ms Yan was involved in this dishonest scheme. This gives rise to a danger, or real risk, that Ms Yan's assets will be dealt with in a way that could lead to a judgment in the proceeding being wholly or partly unsatisfied. (c) The balance of convenience favours the granting of the orders. The orders allow for the payment of ordinary living expenses and reasonable legal expenses. Following submissions by Mr Guo, the amount specified in paragraph 10(a) for ordinary living expenses was increased from $1,000 per week (as proposed in the plaintiff's draft orders) to $5,000 per week. However, the plaintiff indicated that it may wish to argue for a lower amount when the matter returns to Court on the return date. The plaintiff is prepared to give an undertaking as to damages in substantially the same form as that found in the example orders provided in the Court's Freezing Orders Practice Note. In light of the available evidence, the risk of dissipation of Ms Yan's assets is properly viewed as high. 9 In these circumstances, I consider it appropriate to make freezing and ancillary orders in respect of Ms Yan substantially in the form set out in the interlocutory process. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.
SCHEDULE OF PARTIES VID 287 of 2021 Defendants Fourth Defendant: FUSION J PTY LTD (ACN 607 541 202) Fifth Defendant: IALPHAL PTY LTD (ACN 622 742 527) Sixth Defendant: P&H LUXURY TRAVEL PTY LTD (ACN 637 953 925) Seventh Defendant: ROYAL INTELLIGENT DISTRIBUTION LOGISTICS PTY LTD (ACN 625 558 278)
Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed)
Huang, in the matter of Royal Express Pty Ltd