Madgwicks has achieved success in several matters, including in the Supreme Court of Victoria, involving funds transferred from China to Australia.

Common facts

The common facts in these cases:

• funds are transferred from China to Australia.
• the funds are placed in the name of a relative or friend in Australia.
• the relative or friend refuses to return the funds, claiming they were a gift.

What should you do in this situation?

If you believe someone is wrongfully holding your money, acting quickly is critical. The longer you wait, the greater the chance the funds will be spent, transferred or moved out of Australia.

The most effective first step is to apply to the Court for urgent freezing orders and an injunction. These orders stop the other party from dealing with the funds and give you time to pursue your legal claim.

To grant these orders, the Court will want to see:

• that you have a strong, arguable case and
• that there is a real and demonstrable risk the funds will be hidden, spent or sent overseas.

A mere suspicion is not enough. You’ll need evidence showing the risk is genuine.

Once the orders are in place, they can be sent to banks and financial institutions to immediately restrict access to the funds, giving you the best chance of recovering what is yours.

How can you then be successful in recovering the assets and funds?

After you secure the funds by obtaining the freezing orders, you must then prove your case.

In these matters the Court looks at the evidence:

• from the time of the transfer of the funds and
• the behaviour of the parties since the transfer of the funds.

The evidence is critical as to whether the funds were a gift to the person in Australia or merely held on trust by them for the person in China.

Lessons

These cases are often complex, turning on both the correct interpretation of the law and the strength of the evidence. Acting without the right legal guidance can put your claim and your funds at risk.

If you believe someone is wrongfully holding your money, seek expert legal advice immediately. Early action can make all the difference in protecting your assets and recovering what is rightfully yours.

Catherine Ballantyne, a Principal at Madgwicks, is very experienced in these matters and can be contacted on catherine.ballantyne@madgwicks.com.au or on +61 3 9242 4766.

If you would like to discuss your matter in Mandarin please contact Sophia Shen on sophia.shen@madgwicks.com.au or +61 3 9242 4703.

The information provided in this article is general in nature and cannot be relied on as legal advice, nor does it create an engagement. Please contact one our Lawyers listed above for advice about your specific situation.