CPPIB Credit Investments Inc v Ren [2017] NSWSC 771

Supreme Court New South Wales

Medium Neutral Citation: CPPIB Credit Investments Inc v Ren [2017] NSWSC 771 Hearing dates: 9 June 2017 Decision date: 16 June 2017 Jurisdiction: Equity - Commercial List Before: Ball J Decision: 1. The Second Respondent's motion filed on 29 May 2017 dismissed with costs;

2. The freezing order made by the court on 28 April 2017 continue until further order of the court. Catchwords: FAMILY LAW – Family Law Act 1975 (Cth) – whether agreement constitutes "binding financial agreement" within the meaning of the Act. JUDGMENTS AND ORDERS – motions – application to set aside freezing order – motion dismissed Legislation Cited: Family Law Act 1975 (Cth) ss 90C, 90G, 90KA, 104 Uniform Civil Procedure Rules 2005 (NSW) r 25.14(5) Category: Procedural and other rulings Parties: CPPIB Credit Investments Inc (Applicant | Plaintiff) Jerry Ren (First Respondent | First Defendant) Xia Kong (Second Respondent) Representation: Counsel: G E S Ng (Plaintiff) V Bedrossian (First Respondent | Defendant) J L Glissan QC (Second Respondent)

Solicitors: Ashurst Australia (Plaintiff) Mannings Lawyers (Second Respondent) File Number(s): 2017/109259 Publication restriction: None

Judgment

Introduction 1. By a notice of motion filed on 29 May 2017, Ms Xia Kong seeks to have a freezing order made by the court on 28 April 2017 dissolved at least so far as it affects her. 2. Ms Kong is the former wife of the defendant, Mr Ren. The freezing order was granted in respect of a property they own as joint tenants in Warrawee. It was sought in support of a claim that the plaintiff, CPPIB Credit Investments Inc (CPPIB), brings against Mr Ren to recover an amount in excess of $50 million for which Mr Ren is said to be liable under a guarantee. The freezing order was made against Ms Kong even though she is not a party to the proceeding under Uniform Civil Procedure Rules 2005 (NSW) r 25.14(5) on the basis that she is in a position to control or influence the disposition of the property. The freezing order was originally granted until 12 May 2017 and on that date it was extended until 9 June 2017 to give Ms Kong an opportunity to make the current application. 3. The evidence is that Mr Ren and Ms Kong are actively seeking to sell the property. The freezing order does not prevent the sale of the property. However, it requires the net proceeds of sale to be paid into court or into such bank account, to be held on such terms, as are agreed in writing between Mr Ren, Ms Kong and CPPIB. 4. Ms Kong resists a continuation of the freezing order on the ground that the Warrawee property is the subject of a binding financial agreement made under s 90C of the Family Law Act 1975 (Cth) in her favour, with the result that Mr Ren no longer has an interest, other than a nominal interest, in the property. 5. Subject to one qualification to which I will come, it is common ground that the freezing order should continue against Ms Kong if the Warrawee property is not the subject of a binding financial agreement, but it should not continue against her if it is. 6. The onus is on Ms Kong to establish that, notwithstanding that she and her former husband own the property as joint tenants, it is the subject of a binding financial agreement made under s 90C, with the result that the property effectively belongs to her. Originally, Ms Kong submitted that the question whether the property was the subject of a binding financial agreement should be determined by the Family Court. However, during the course of argument, Mr Glissan QC, who appeared for Ms Kong, properly conceded that this court has jurisdiction to determine that question. No relief under the Family Law Act is sought in respect of the relevant agreement. What is in issue is whether the agreement is an agreement to which that Act applies. Consequently, there is no reason to transfer the matter to the Family Court.