Zoe is a legal information platform. Always consult the official source for authoritative text.
Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v Huang, in the matter of Royal Express Pty Ltd - [2021] FCA 691 - FCA 2021 case summary — Zoe
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.
[2]
THE COURT ORDERS THAT:
Introduction
(a) The application for this order is made returnable immediately.
(b) The time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by 4.00 pm on 18 June 2021.
Subject to paragraph 3, this order has effect up to and including 24 June 2021 (the Return Date). On the Return Date at 9.00 am there will be a further hearing in respect of this order before Justice Moshinsky.
Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified.
In this order:
(a) 'plaintiff', if there is more than one plaintiff, includes all the plaintiffs;
(b) 'you', where there is more than one of you, includes all of you and includes you if you are a corporation;
(c) 'third party' means a person other than you and the plaintiff.
(a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions.
(b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way.
Freezing of Assets
You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia or outside Australia.
For the purposes of this order,
your assets include:
(i) all your assets, whether or not they are in your name and whether they are solely or co-owned;
(ii) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and
(iii) the following assets in particular:
A. the property known as Unit 803, 35 Albert Road, Melbourne VIC 3004 (Volume 11538 Folio 588) or, if it has been sold, the net proceeds of the sale;
B. the property known as Unit 110, Level 1, 499 St Kilda Road, Melbourne VIC 3004 (Volume 11880 Folio 056) or, if it has been sold, the net proceeds of the sale;
C. any money in account numbered 217016791 with BSB 013132 held in your name at ANZ Bank (Bourke St Mall Branch);
the value of your assets is the value of the interest you have individually in your assets.
Provision of information
Subject to paragraph 9, you must:
(a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the plaintiff in writing of:
(i) all your assets world-wide, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets;
(ii) the purpose for which all amounts received by you from the plaintiff, Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed), were received in the period 13 July 2017 to 28 April 2020 and, if any amounts were received on account of services provided by you to the plaintiff, details of the services provided including copies of any invoices rendered;
(iii) the current location of all amounts received by you from the plaintiff and, if the current location of the funds is not known to you, details as to where and when you paid those funds, and for what purpose.
(b) within 10 working days after being served with this order, swear and serve on the plaintiff an affidavit setting out the above information.
(a) This paragraph 9 applies if you are not a corporation and you wish to object to complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that you:
(i) have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii) are liable to a civil penalty.
(b) This paragraph 9 also applies if you are a corporation and all of the persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively:
(i) have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii) are liable to a civil penalty.
(c) You must:
(i) disclose so much of the information required to be disclosed to which no objection is taken; and
(ii) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and
(iii) file and serve on each other party a separate affidavit setting out the basis of the objection.
Exceptions to this order
This order does not prohibit you from:
(a) paying up to $5,000 a week on your ordinary living expenses;
(b) paying your reasonable legal expenses;
(c) in relation to matters not falling within (a) or (b), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the plaintiff, if possible, at least two working days written notice of the particulars of the obligation.
You and the plaintiff may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the plaintiff or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the plaintiff and you, and the Court may order that the exceptions are varied accordingly.
Costs
The costs of this application are reserved to the Court hearing the application on the Return Date.
Persons other than the plaintiff and respondent
Set off by banks
This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order.
Bank withdrawals by the respondent
No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order.
Persons outside Australia
(a) Except as provided in subparagraph (b) below, the terms of this order do not affect or concern anyone outside Australia.
(b) The terms of this order will affect the following persons outside Australia:
(i) you and your directors, officers, employees and agents (except banks and financial institutions);
(ii) any person (including a bank or financial institution) who:
A. is subject to the jurisdiction of this Court; and
B. has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and
C. is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience of the terms of this order; and
(iii) any other person (including a bank or financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person's assets.
Assets located outside Australia
Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made on your or the third party's application, reasonable written notice of the making of the application is given to the plaintiff.
Schedule A
UNDERTAKINGS GIVEN TO THE COURT BY THE PLAINTIFF
(1) The plaintiff undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order.
(2) As soon as practicable, the plaintiff will file and serve upon Ms Jun Yan copies of:
a. this order;
b. the application for this order for hearing on the return date;
c. the following material in so far as it was relied on by the plaintiff at the hearing when the order was made:
i. affidavits (or draft affidavits);
ii. exhibits capable of being copied;
iii. any written submission; and
iv. any other document that was provided to the Court.
d. a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court;
e. the originating process, or, if none was filed, any draft originating process produced to the Court.
(3) As soon as practicable, the plaintiff will cause anyone notified of this order to be given a copy of it.
(4) The plaintiff will pay the reasonable costs of anyone other than Ms Jun Yan which have been incurred as a result of this order, including the costs of finding out whether that person holds any of Ms Jun Yan's assets.
(5) If this order ceases to have effect the plaintiff will promptly take all reasonable steps to inform in writing anyone to who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect.
(6) The plaintiff will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding.
(7) The plaintiff will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against Ms Jun Yan or Ms Jun Yan's assets.
(8) The plaintiff must bring proceedings against Ms Jun Yan in relation to the subject matters of this application, whether by joinder to the present proceeding or by the commencement of a separate proceeding, within 14 days of the date of this order.
Schedule B
AFFIDAVITS RELIED ON
Name of deponent Date affidavit made
Salvatore Algeri 28 May 2021
Salvatore Algeri 1 June 2021
Salvatore Algeri 16 June 2021
[3]
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.
[4]
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).
[5]
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.
[6]
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.
[7]
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)
Parties
Applicant/Plaintiff:
Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed)