Federal Court of Australia

Zhang v Zhang (No 2) [2025] FCA 98

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 7.33 of the Federal Court Rules 2011 (Cth), by 4.00pm on 6 March 2025 the First Applicant disclose by way of affidavit his assets within Australia, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of his interests in the assets.

2.    Pursuant to rule 7.33 of the Rules, the Freezing Orders made on 6 October 2023 be varied to require the First Applicant, by 4.00pm on 20 March 2025, to pay into Court up to $7,334,167.33, to the extent that he is able to do so from his assets, pending the determination of the proceeding.

3.    For the purposes of order 2, the First Applicant has liberty to apply for payment out of Court of money paid into Court, for any purpose not prohibited by order 4 of the Freezing Orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NESKOVCIN J

1    This is an interlocutory application by the first and second respondents, initially made on 31 October 2024 and amended on 20 December 2024, for:

(a)    an order pursuant to r 7.33 of the Federal Court Rules 2011 that the applicants / cross-respondents disclose the list of the documents set out in the email from Mr Chris Katehos of 17 December 2024 which is at page 17 of exhibit XC-1 in the affidavit of Xiangyu Chen affirmed 20 December 2024;

(b)    an order pursuant to rule 7.33 of the Rules, that the freezing orders made on 6 October 2023 be amended to require that the applicants / cross-respondents be required:

(i)    to pay $7,334,167.33 into Court pending the determination of these proceedings; or

(ii)    in the alternative, to provide satisfactory security in the amount of $7,334,167.33;

(c)    an order pursuant to s 1335 of the Corporations Act 2001 (Cth) and r 19.01 of the Rules, that the applicants / cross-respondents provide security for the costs of the respondents in the sum of $964,540.00, or in such amount as determined to be appropriate by the Court;

(d)    pursuant to r 19.01(1) of the Rules, an order that the proceeding be dismissed with costs if the applicants fail to comply with the preceding order.

(e)    an order pursuant to r 7.33 of the Rules that the first applicant, within 7 days, disclose by way of affidavit his assets within Australia, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of his interests in the assets.

2    The application for security for costs was not pressed. The first applicant agreed to provide the affidavit of disclosure of assets, but said he needed more time. The application was otherwise opposed.

3    For convenience, I will refer to the first and second respondents as the respondents. Secondly, the parties refer to the first applicant as James and the first respondent as Eric. I will do likewise, intending no disrespect. In addition, the corporate entities associated with James are referred to as the APH Group.

4    The first and second respondents read the following affidavits:

(a)    affidavit of Guoqiang Zhang sworn 6 December 2023;

(b)    affidavit of Yihao (Eric) Zhang sworn 6 December 2023;

(c)    affidavit of Yu Chen sworn 18 June 2024;

(d)    affidavit of Yu Chen sworn 31 October 2024;

(e)    affidavit of Xiangyu Chen sworn 20 December 2024;

(f)    affidavit of Yihao (Eric) Zhang sworn 31 January 2025;

(g)    affidavit of Xiangyu Chen sworn 14 February 2025;

(h)    affidavit of James Tenghui Zhang sworn 22 October 2023

Background

5    On 6 October 2023, Beach J made freezing orders against James, pursuant to an application brought by the respondents for orders pursuant to rules 7.32 and 7.33 of the Rules (Freezing Orders).

6    The Freezing Orders are in standard form. Order 1 prohibited James from removing from Australia or in any way disposing of, dealing with or diminishing the value of any his assets in Australia up to the unencumbered value of AUD7,334,167.33 (Relevant Amount).

7    Order 3 of the Freezing Orders provided:

For the purposes of this order:

(a)     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) for the avoidance of doubt, any money in any account in your name (whether alone or with others).

(b)    the value of your assets is the value of the interest you have individually in your assets.

8    Order 9 of the Freezing Orders required James to file and serve an affidavit disclosing his assets within Australia, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of his interests in the assets.

9    On 22 October 2023, in compliance with Order 9 of the Freezing Orders, James filed an affidavit stating, in effect, that at the time of providing the affidavit:

(a)    he owned eight vehicles in his name, with no encumbrances;

(b)    he was the appointer / principal of 40 discretionary trusts with a combined net equity of over $100 million; and

(c)    he had loaned a total of several millions of dollars to 10 of these trusts.

10    On 24 November 2023, James brought an application to revoke or set aside the Freezing Orders (Revocation Application).

11    On 22 December 2023, O’Callaghan J dismissed the Revocation Application: Zhang v Zhang [2023] FCA 1660 (Zhang No 1).

12    On 31 October 2024, the respondents in the proceedings filed the present application seeking a variation of the Freezing Orders (Application).

13    Also on 31 October 2024, after the filing of but before they had seen the Application, the solicitors for the applicants wrote a letter to the solicitors for the respondents which, among other things, stated that the applicants intended to bring an application to discharge the Freezing Orders based on a material change in circumstances (31 October Letter).

14    On 27 November 2024, the applicants advised the respondents that they were not going to bring an application to discharge the Freezing Orders.

15    In the circumstances where the applicants had not provided further evidence of their assets and liability position, the respondents amended the Application to seek further disclosure of the applicants’ net asset position.

Variation of the freezing order

The applicants’ submissions

16    The applicants’ principal submission was that the variation of the Freezing Orders to require an order for payment into Court was not justified on the facts and was unsupported by authority. The applicants submitted that the authorities in which orders were made for payment in by way of security are limited and orders were made in circumstances quite different to the present.

17    The applicants read the following affidavits:

(a)    affidavit of Hao (Francis) Qi sworn 27 June 2024;

(b)    affidavit of Ruiyu (Yoyo) Zhang sworn 10 February 2025;

(c)    affidavit of Janet Whiting sworn 10 February 2025;

(d)    affidavit of Joyce Hossack sworn 18 February 2025.

The applicable principles

18    The applicable principles were not ultimately in dispute. The power to vary an interlocutory order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46–47 (McLelland J as his Honour then was). As Griffiths J noted in Waters v Commonwealth of Australia [2017] FCA 312 at [53], this “is the test which has been adopted and applied in numerous decisions at first instance in this Court”.

19    The parties accepted that this court has power to order a party to pay money into court as an alternative to a freezing order: Dura (Australia) Constructions Pty Ltd (in liq) v Hue Boutique Living Pty Ltd (2014) 49 VR 86 at 98-99; [2014] VSCA 326 (Santamaria JA). The applicants submitted, however, that the order sought by the respondents are an ‘extraordinary’ ancillary order which is not warranted in the circumstances of this case.

20    The claims and cross-claims in this proceeding are essentially claims that may result in compensatory damages for misleading or deceptive conduct. It may be accepted, as the applicants submitted, that the previous authorities granting an ancillary order for payment into court are limited and involved claims or circumstances different to the present: see for example Millenium Federation Pty Ltd v Bigjig Pty Ltd [2000] 1 Qd R 275, [1998] QCA 432 (Pincus JA, Thomas JA and MacKenzie J); Yukong Line Ltd of Korea v Rendsberg Investments Corp of Liberia [2001] 2 Lloyd’s Rep 113 (Thorpe, Potter and Hale LJJ); Sleiman v Afeich [2005] NSWSC 1063 (Hamilton J); Guo v Xu [2021] NSWSC 460 at [149], [218] (Rees J).

21    Whilst acknowledging the limited authorities and for reasons I will come to, in my assessment, the present circumstances are one of those “rare cases” which justify the making of the order sought to prevent a party from disposing of his actual assets (including claims and expectancies) so as to frustrate the process of the court: Jackson v Sterling Industries Ltd (1987) 162 CLR 612; [1987] HCA 23 at [7] (Deane J).

Consideration

22    As mentioned above, in his confidential affidavit of 22 October 2023 filed in compliance with Order 9 of the Freezing Orders, James gave evidence on oath, among other things, that at the time of making the affidavit he was the appointer / principal of 40 discretionary trusts with a combined net equity of over $100 million and he had loaned a total of several millions of dollars to ten of those trusts (James’ disclosure affidavit). The effect of James’ disclosure affidavit, taken with Order 9 of the Freezing Orders, was that James had said on oath that his total assets exceeded $100 million and greatly exceeded the Relevant Amount.

23    I note that in a letter dated 24 November 2023, the applicants’ solicitors stated:

We do not consider the trusts listed in paragraph 12 [of James’ disclosure affidavit] form part of Mr Zhang’s assets within Australia within the meaning of the freezing Order. However, we note that the definition of “assets” under the freezing Order is ambiguous (insofar as it refers to one’s power to control assets). As such the net values of those assets were disclosed to avoid potential dispute as to the our [sic] clients’ compliance with the Freezing Order.

24    Notwithstanding that letter, the applicants’ written submissions for the purpose of the Revocation Application, at [34], stated on James’ behalf, that:

…there is no realistic suggestion that James would be unable to pay any judgment in Eric’s favour. There is unchallenged evidence that the scale of James’ business interests are in the order of hundreds of millions of dollars, and the total value of real estate interests significantly exceeds the total indebtedness of the group.

25    In Zhang No 1, in refusing the Revocation Application O’Callaghan stated at [51]:

It was also submitted on behalf of James that the evidence contained in his disclosure affidavit shows that his wealth is so significant that the Court should not require him to put up security.  Whether the evidence shows that is debatable.  But, more relevantly for present purposes, the time to make that submission was before Beach J.

26    The oral submissions that had been made to O’Callaghan J in relation to the discretionary trusts referred to in James’ disclosure affidavit were as follows:

What one also sees from paragraph 12 onwards are various discretionary trusts associated with Mr Zhang’s family interests. It’s not said here on this evidence that he himself is a beneficiary, but he is, in paragraph 10, the appointor or principal of these trusts, and it’s on that basis, having the power or the control of those entities that he has disclosed these entities and their net equity. If your Honour turns through to the end of the table, just above paragraph 13, your Honour will see the very 15 substantial total net equity held in those trusts.

Then at paragraph 14, there are – there is a list of loans which he personally has made to the corporate trustees of those trusts and he deposes to having made loans in the amounts set out in that table and at the bottom of this page 11 of the affidavit, one 20 sees the total entitlements of the loans which he has to his credit and, again, over the page, paragraph 15 there’s another loan of significant value, which is in his favour, as well.

So there your Honour has the affidavit of Mr Zhang deposing to assets in his name and assets which he controls, which are very, very substantial, indeed, and support, in our submission, the inability or – yes, inability to properly draw an inference as to a threat of dissipation of assets arising from the transfer of half interest in his matrimonial home to his wife. His evidence shows that he is in Australia, having become a citizen more than a decade ago, building very substantial business and does not give rise to a threat of dissipation of interests.

(emphasis added)

27    It may be accepted, as the applicants submitted, that the Freezing Orders, even taking into account what might be described as an “extended definition” of assets of the kind in Order 3, do not extend to the assets of the companies James controlled: Biscoe, Freezing and Search Orders (3rd ed), at [2.39], referring for example to Viterra BV v Shandong Ruyi Technology Group Company Ltd [2022] FCA 215 (Stewart J). That does not, however, reflect the position the Court was asked to take at the time of the Revocation Application. The position that was put to the Court on the basis of James’ disclosure affidavit, which the Court was asked to move on, was that his wealth was significant by virtue of assets in his name and assets which he controlled.

28    The applicants had apparently taken the view that the assets of the discretionary trusts were not James’ assets for the purpose of the Freezing Orders. They did not, however, make that position clear until the filing of their written submissions for the purpose of this Application, as can also be seen from the correspondence referred to below.

29    The respondents’ solicitors sent various pieces of correspondence to the applicants’ solicitors regarding James’ asset position and compliance with the Freezing Orders. The respondents raised concerns in relation to four transactions, which they say are material to the Court’s assessment and exercise of its discretion to order the payment of money into court.

30    The first concerns the disposal of James’ half share in the matrimonial property for nil consideration in November 2023, shortly after this proceeding was commenced by James. When Beach J made the Freezing Orders, he observed in relation to the disposal of James’ half interest in the matrimonial home:

Generally speaking, I am satisfied on the affidavit material that has been put before me, and solely by the respondents, that there is a good prima facie case made out for the potential claim concerning the loan of $5.5 million. I only have evidence from the respondents. There has been no affidavit material filed in opposition to this application by the applicants, which makes me more comfortable to reach the view that there is a good prima facie case that has been shown. In terms of the disposition of assets, it seems beyond doubt that the first applicant disposed of a half interest in some real property in Victoria for no consideration and has done so at a point in time that suggests that it may have been done to put his assets beyond reach of potential claims.

31    In Zhang No 1, in relation to the disposal, O’Callaghan J said at [53]:

The only evidence James sought to adduce on this application about the transfer of his half share of the matrimonial home to his wife concerned how it was effected. In that regard, Mr Pederick exhibited to his 17 November 2023 affidavit a title search, a deed of transfer, correspondence and a registration confirming that James’s wife has been the sole proprietor since 15 September 2023. But no evidence was adduced as to why he did it. And no explanation was given about what on the face of it is the all too convenient timing of the transfer. So the position is no further advanced than it was before Beach J.

32    While this clearly was taken into account by Beach J and by O’Callaghan J, and is not a ‘new’ circumstance, it is relevant to the applicants’ conduct and protection of the court’s processes.

33    The second transaction concerns the transfer of shares held by one of the discretionary trusts in August 2024, to James’ niece. James’ disclosure affidavit referred to a discretionary trust with net equity of several millions of dollars. The respondents’ solicitors discovered that shares in a listed entity held by the trust had been transferred to James’ niece in August 2024 for nil consideration. The applicants’ written submissions filed for the purpose of the Application in February 2025 stated that “the assets held on trust by the corporate trustees [fall] outside the scope of the definition of assets in the Freezing Orders.” This is to be contrasted with the applicants’ explanation in September 2024 that the transfer was an in specie distribution to a specified beneficiary of the trust. The respondents challenged whether the in specie distribution was “in the ordinary and proper course” of James’ business.

34    In any event, the applicants’ solicitors sent an email to the respondents’ solicitors on 23 September 2024 explaining the transfer of the shares. The email stated:

1.    If the assets held by the Inheritance Trust are to be regarded as the assets of Mr James Zhang for the purpose of the freezing order (which is not admitted), Mr James Zhang’s assets will naturally include the assets held by all discretionary trusts as listed in paragraph 12 of his disclosure affidavit.

2.    The freezing order only prohibits the dealing of his assets if the unencumbered value of those assets falls below the “relevant amount” … On the currently available documents, the combined value of all the discretionary trusts at the time of the transfer of the LML shares exceeded the relevant amount.

35    Although the email sought to leave open the question whether James’ assets include the trusts, in my assessment, the language in paragraphs 1 and 2 of the email gives the impression that James’ assets exceeded the Relevant Amount and (or because) the assets of the trusts had been taken into account in reaching that view.

36    The third transaction concerns the cross collateralisation of loan obligations by the second cross-respondent (10LS). 10LS owned a property which is the subject of one of the claims in the proceeding. On 23 April 2024, 10LS entered into a contract for sale of the property. At that time, the property was subject to a mortgage, leaving net equity of approximately $4 million. On 13 May 2024, James, as sole director of 10LS, caused it to enter into transactions whereby the property was used as collateral for the debts of other companies in the APH Group. The respondents submitted that the transaction was not “in the ordinary course” of business because 10LS derived no benefit from the transaction. The applicants submitted that the assets of 10LS are not subject to the Freezing Orders but, in any event, 10LS obtained the benefit of a ‘standstill’ agreed to by the secured lender under the cross-collateralisation transaction.

37    Both parties referred to a ‘realisation plan’ prepared by KordaMentha shortly after the transaction which showed that the value of the real properties secured as part of the cross-collateralisation exceeded the debt by approximately $9.8 million. In light of the realisation plan, the applicants’ statement that there was nil return from the sale of 10LS’ property was, as the respondents submitted, inexplicable. As the respondents further submitted, this transaction concerned assets of a company against whom the respondents have a direct claim.

38    The fourth transaction concerns the sale of three motor vehicles owned by James valued at over $1 million, which he transferred to a third party to satisfy debts owed by companies in the APH Group. The applicants submitted that the transfer of the motor vehicles were made in the ordinary course of James’ business, which involves the provision of funding to the APH Group. The respondents dispute whether the sale was in the ordinary course of James’ business. The transfers again highlight a concern regarding the disposal of assets or tendency to use assets in a way that reflects James’ own business affairs.

39    The above matters and correspondence occurred before the 31 October Letter was sent. The respondents submitted that, in the 31 October Letter, the applicants made a series of ‘admissions’ which they relied upon to establish a material change of circumstances. The applicants accepted that there has been a material change of circumstances, but they submitted that the variation of the Freezing Orders to require the payment of money into court was not justified.

40    It is necessary to examine the 31 October Letter in more detail. Paragraph 1(a) referred to and defined James’ “assets”, for the purpose of the letter, by reference to James’ disclosure affidavit. The letter stated that since the Freezing Orders were made, the obligations of the companies in the APH Group had increased and the companies in the APH Group had, in the ordinary course of business, engaged in refinancing arrangements and further financial accommodations with lenders.

41    The letter then stated:

At the time of entering into the subsequent obligations, our client believed that the unencumbered value of the assets the subject of the Orders exceeded the Relevant Amount. Therefore, the dealings with the assets were permitted by order 2 of the orders (even if those assets are considered Mr Zhang’s assets for the purpose of the Orders, which is not admitted), and were, in any event, done in the ordinary and proper course of business and, hence, permitted by order 4(c).

42    After referring to declining property values and other matters, the letter stated:

That is, up until recently, our client did not consider that the sales that had been achieved or were being contemplated would result in the total unencumbered value of the remaining assets falling below the Relevant Amount. Our client has, however, recently reached the view that the market value of the assets has decreased to the point where the total unencumbered value of the remaining assets may have fallen below the Relevant Amount, or may do so at some point in the future. The market value is not known as it is entirely dependent on the final sale price of the assets.

We have deliberately used “may” in describing the situation, as the actual asset situation on any given day is subject to multiple factors that impact the net value, with the most significant one – the value of the underlying real property – only being an estimate until an offer is made and is accepted. The movements in price have been impossible to predict and have surprised not only our client but also the most experienced lenders in the market, such as Wingate.

43    The letter concluded by stating:

As such, in our client’s view, the Orders have become unworkable in that there is now a potentially irreconcilable tension between:

(a)    the permissions granted in the Orders to deal with assets in the ordinary course or to meet bona fide prior obligations;

(b)    the need for our client to continue to sell assets to meet their bona fide prior obligations; and

(c)    the prohibition on dealings with assets below the Relevant Amount.

Accordingly, it will be necessary for us to apply to the Court to have the present Orders discharged. We shall draft orders and provide them to you ahead of filing the application with the Court.

44    The applicants did not make an application to vary the Freezing Orders. This is despite the concerns about declining property values and the perceived “potentially irreconcilable tension” between the permissions granted in the Freezing Orders to deal with assets in the ordinary course and the prohibition on dealings with assets below the Relevant Amount.

45    The applicants may well be justified in treating the trusts as excluded by the Freezing Orders. However, it is of concern that the applicants were prepared to take the broader interests of James’ companies and the trusts into account in calculating James’ wealth for the purpose of the Revocation Application and, it would appear, for the purpose of ascertaining whether the total value of his assets has fallen below the Relevant Amount. James has agreed, somewhat belatedly, to provide an updated affidavit of assets. That affidavit was not provided before the hearing.

46    The purpose of a freezing order is to prevent an abuse or frustration of the court’s processes by depriving an applicant of the fruits of any judgment obtained in the action, but it is not to provide security in respect of a judgment. The present circumstances raise a concern that the Freezing Orders will not provide the intended protection because of the rare circumstances presented by this case where the assets which were previously more than adequate, and described as significant, may now be less than the Reduced Amount for reasons that are not apparent to the Court.

47    Finally, applicants challenged the exercise of the Court’s discretion on the basis that an order for payment into court could place James in contempt of Court if he is unable to comply with the order. The applicants submitted the Court should not make an order for payment into Court because the respondents have not discharged the burden of proving that the orders could be complied with and not place James in contempt of Court. While the respondents submitted that there was no evidence that James could not comply with an order, the issue of contempt for non-compliance was raised by the applicants. It would therefore seem to me that the applicants bore the onus of establishing that an order would or might result in a contempt if James was unable to comply with the order. In the result, I will fashion the orders so that he is only required to pay moneys into Court from his assets and that order will not take effect until James provides a further disclosure affidavit, verifying his capacity to meet the order for payment into court from his assets.

48    Second, the applicants challenged the adequacy of the respondents’ undertaking as to damages. The respondents gave unchallenged evidence regarding the adequacy of the undertaking as to damages. In any event, this is one matter among others relevant to the discretion.

49    For those reasons, there will be an order for variation of the Freezing Orders to require payment into Court of a sum up to $7,334,167.33, to the extent that James is able to do so from his assets.

Disclosure affidavits

50    As Gordon J (with whom Kiefel CJ, Gageler, and Gleeson JJ agreed) explained in Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235; [2021] HCA 22 at [46], “[t]he purpose of the disclosure is to identify assets that are subject to or caught by the freezing orders and to permit the party with the benefit of the freezing orders to take steps, if necessary, to attach the freezing orders to the assets which are disclosed in the information and notify any affected third parties”.

51    In compliance with Order 9 of the Freezing Orders, James filed the disclosure affidavit in October 2023. James has agreed to file a further affidavit disclosing his assets within Australia, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of his interests in the assets

52    The respondents seek a further order that the applicants disclose a list of documents that were identified by Mr Chris Katehos, described as a forensic account, which included bank statements, audited financial statements of the companies and trusts which James controls and so on.

53    According to the respondents’ submissions, the documents sought are “necessary to give the first and second respondents insight into the true asset position of the applicants”. In my assessment, the disclosure sought by the respondents is beyond the purpose contemplated by ancillary disclosure orders. I am not prepared to make the order sought, which is an attempt to obtain documents for the respondents to verify for themselves the adequacy of the applicants’ disclosure and the net asset position of the applicants.

Conclusion

54    I will make the orders for payment of security into Court and for the first applicant to file a further disclosure affidavit. I will hear the parties in relation to costs.

Associate:

Dated:    19 February 2025

SCHEDULE OF PARTIES