Lal v. Jaw
Read the full judgment text of FCMC 5389/2007 on BabelCite. This Family Court judgment was delivered on 23 April 2008 before Her Honour Judge Chu.
Matrimonial proceedings – Interim injunction – Preservation of assets – Whether GS Group needs SGI Funds – Whether GSA needs GSA Funds – Whether funds put beyond Court’s reach – Summons dismissed – Costs follow event
Legal issues: Whether the GS Group is now in need of all the SGI Funds · Whether GSA is now in need of all the GSA Funds · Whether such funds, once released will be put beyond the Court’s reach in making a final award to W
Outcome: Summons dismissed
Cited by 1 case
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FCMC 5389 / 2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 5389 OF 2007 ---------------------------- BETWEEN
------------------------ Coram : Her Honour Judge Chu in Chambers Date of Hearing : 14 April 2008 Date of Handing Down of Ruling : 23 April 2008 ----------------------- J U D G M E N T ----------------------- Introduction 1.This is an application by the Respondent (“H”) to withdraw the funds held by a Mr. KN (“KN”) in the names of two companies “SGI” and “GSA”. The Petitioner (“W”) strongly opposes this application. Brief Background 2.Although the parties only became married in November 2001, their relationship started much earlier towards end of 1989. There are two children of the family, the elder son is now 21, and attending university in Canada, and the younger son is 16, and residing with the parties at the matrimonial home. 3.The details of the parties’ relationship are not relevant at this stage, save that their marital relationship started to break down towards the latter half of 2006/early 2007, and W issued a divorce petition in May 2007 based on H’s unreasonable behaviour. H initially indicated that he wanted to defend the petition, but agreed not to defend upon W amending the particulars of her petition to a mild version. A decree nisi was granted to W in October 2007. Notwithstanding the granting of the decree, the parties have continued to reside under the same roof. 4.W is a psychologist. In about 1990, she started up a business for her private practice in counseling and training. H had left his previous job and took on a job in executive headhunting. In 1998, H decided to set up his own business in executive headhunting. He formed SGI, a BVI company, in 1998 and this company is 100% held by H. 5.The business he set up is now the GS Group of companies (collectively called the “GS Group”), with offices in Hong Kong, Tokyo, London, and New York. The GS Group focuses on human resources and executive search. 6.GSA was incorporated in Hong Kong on 26 July 1999 to provide services for executive coaching, career development and psychological testing. After incorporation, W started employment with this company, and was actively involved with GSA until her relationship with H started to break down. She set up her own company in November 2006, which commenced business of counseling and training on 1 January 2007 7.The shares of GSA were held 99% by SGI and the remaining 1 % held by H’s nominee shareholder. Until about 6 months ago, W and SGI were the only directors of GSA. He sought to remove W as a director, and W took out a summons to restrain him from so doing. The matter was then heard on 3 December 2007 (“the Hearing”), and was later resolved during the Hearing by H agreeing not to remove W as a director and upon W undertaking not to object to H being added as a director and to GSA opening a bank account with H as sole signatory. Since then, H has been added as a director of GSA. 8.The parties have known one KN for a long time, and they have been placing/investing funds with KN. Such funds were by way of “loans” to KN with a guaranteed high rate of return upon maturity. 9.During the Hearing, H indicated to the Court that he was concerned over the source of those funds invested with KN, and was seeking full disclosure from W as to all statements of investments with KN. 10.The parties then agreed to undertake to write to KN to seek a full detailed statement as to all the funds placed with KN, and the source thereof, whether such investments were made by GSA or GS Group or W personally or H personally. Upon such undertaking, this Court made an order that the parties were not to withdraw funds invested with KN without either the written consent of both parties or without leave of the Court (“the Order”), it being this Court’s understanding that in any event KN was not going to dispose of any of the funds without the consent of both parties. 11.After the Hearing, the parties proceeded to seek details of the funds and source thereof from KN, which was duly provided. According to information provided by KN, a total sum of US$ 651,164.87 comprising of funds held in name of GSA and funds held in W’s personal name was due to mature and repayable on 27 January 2008 and a sum of US $1,960,650.49 held in name of SGI was due to mature and repayable on 12 February 2008. 12.Then, on 1 February 2008, H issued a summons for leave to withdraw funds placed with KN (“H’s Summons”). H sought to withdraw the entire funds of about US $1,960,650.49 placed in name of SGI, and funds of about US $ 184,629.25 (being the original sum of US $50,000 placed in name of GSA plus accrued interest @ 30% over the years since 30 January 2003). For ease of reference, I shall call all funds previously/currently held by KN in the name of SGI “SGI Funds” and funds previously/currently held by KN in the name of GSA “GSA Funds”. He is not seeking to withdraw those funds held in W’s personal name. 13.At one stage, H seemed to be arguing that the funds were “corporate funds”, and thus they were to be returned to the companies. As indicated by his Counsel, Mr. Pilbrow SC, whether the funds are corporate assets or personal assets, it does not make any difference to this application. 14.According to H’s 3rd affidavit filed in support of his summons, H is in need of all the SGI Funds in order to “manage the cash flow ”of the GS Group. H further says he is in need of all the GSA Funds in order to “restart the career advisory and coaching business W left behind”. In any event, he wants all the funds to be transferred out of KN. 15.The reason why H wishes to have all the funds transferred out of KN is because he says in the present time of considerable financial uncertainty, the loans to KN may be considered of a high risk/high return nature. At the end of the hearing on 14 April 2008, the parties were able to agree, quite sensibly in my view, for all funds to be transferred out of KN first, and to be placed in a bank account to be held jointly by H’s solicitors and W’s solicitors pending this Court’s decision as to whether H is allowed to withdraw the funds. 16.H has filed a total of 4 affidavits in support of his application, his 3rd, 4th, 5th, and 7th affidavit. There is also an affirmation from his solicitor. H has also produced various reports/letters from his accountants Horwath (“Horwarth”) supporting his application. Although by now, there are a total of 9 Pleadings Bundles and 2 Correspondence Bundles, the documents which Mr Pilbrow relied on were in Pleadings Bundles 6 and 9, and Correspondence Bundle 2. 17.W opposes to H withdrawing the SGI Funds and the GSA Funds. She has filed a total of 3 affidavits in opposition, her 2nd, 3rd and 4th affidavit and also produced various reports/letters from her accountants John Lees & Associates (“Lees”). The Legal Principles 18.Under s.17 of the Matrimonial Proceedings and Property Ordinance, the Court has jurisdiction to grant injunctions if an applicant has satisfied the Court that there is an intention on the part of the other party of defeating the applicant’s claim for financial provision in the making of a disposition of property. 19.Apart from s.17, the power to grant interlocutory injunctions and orders for preservation of any property which is the subject matter of the proceedings is also contained in O. 29 of the Rules of the High Court, which applies to matrimonial proceedings pursuant to Rule 3 of the Matrimonial Causes Rules, subject to modifications. 20.Neither Counsel has referred this Court to O.29 of RHC. W’s Counsel, Ms Rattigan, is not relying on s.17 but has submitted that quite apart from s.17, there is also inherent jurisdiction that this Court has power to preserve the matrimonial assets pending final determination of the financial proceedings. 21.Ms Rattigan has referred this Court to two authorities. Essentially, “In deciding whether to exercise its inherent jurisdiction, this Court would not be required to have regard to the many restrictions and safeguards surrounding the use of worldwide Mareva injunctions and to assimilate the use of and procedure for injunctions in the Family Court to those in commercial law”. (see Shipman v Shipman 1991 1 FLR 250 and Tan Li Hui Cheng v Tan Kian Chee 1997 4 HKC 94). 22.Mr Pilbrow has not challenged the above general principles. 23.Ms Rattigan has further relied on what Le Pichon J. (as she then was) has said in Tan v Tan, namely that “the fact that the respondent’s liabilities may exceed his assets is not, of itself, a reason why the injunction should not or cannot continue.” 24.Anyway, clearly, and it is accepted by Mr. Pilbrow, the burden of proof is on H to satisfy this Court that all the SGI Funds and/or the GSA Funds are needed now and that the injunction in the Order should be lifted to allow H to withdraw all such funds. Reasons For H’s Application 25.The reasons why H wishes to withdraw all the SGI Funds are:
Reasons For W’s Application 26.W opposes the application for the following reasons:
Main Issues 27.The main issues thus are :
(i) Whether The GS Group Is Now In Need Of All The SGI Funds Payment of US $4.374m bonuses 28.On 24 December 2007, H arranged for companies under the G S Group to pay a total sum of US$4,374,237 to employees as their bonus payments. This amount was nearly 1.8 times the amount of bonus payments for 2006, and about 3 times those for 2005. 29.H says he did not receive any bonus payments from this sum. Although W had queried this initially, according to the Horwath’s Report of 26 February 2008 (Horwath’s 1st Report”), they were satisfied that the bonus paid was in accordance with the “Revenue Consultants Bonus Guidelines of the GS Group and which have been consistently applied in 2006 and 2007. The explanation for the substantial increase in bonus paid from 2006 to 2007 was due to the improvement of certain individual consultants, reaching highest revenue threshold in 2007 when compared to 2006. H has in his 4th Affidavit produced a confirmation letter from GS, signed by its Chief Operating Officer, Ms Chan, to the effect that H has not received any bonus from the GS Limited at all since January 1999. 30.The payment of the bonus is discretionary. By December 2007, the sub prime mortgage problems were already surfacing. Whether it is prudent that one should pay out such a large amount of bonuses is debatable. However, as Mr. Pilbrow has submitted, the money is gone. There is no evidence that H received any part of this sum of bonus payments, and on the evidence presently before me, I accept that these bonuses of about US $4.374m were paid to employees/consultants other than H. SGI Funds 31.There were 4 deposits made with KN in the name of SGI. As the bank statements for SGI produced by H do not go as far back as December 2002, it is not clear whether the first deposit on KN’s list of US $500,000 on 9 December 2002 in fact came from SGI’s bank account. The 2nd deposit of US $ 1m on 12 February 2004 was the mortgage loan from a property in Minnesota U.S.A., of which H holds 7/8 interest in his personal name and his brother holds the balance of 1/8 (“Minnesota Property”). This sum was described by H as a “loan” from H to GS Group for a new office in Japan. It is not clear why it was transferred to KN instead. The 3rd deposit on 12 February 2006 comprised of US $760,000 plus accrued interest from previous deposits. The US $760,000 was transferred to KN from H’s personal account. The last deposit of US $200,000 on 28 August 2006 was transferred from SGI bank account, but a same amount was about 5 months earlier transferred out from the SGI Funds. H’s Withdrawal of US $ 1.5 m from the SGI Funds in February 2007 32.There were altogether 4 withdrawals from SGI Funds from December 2003 to February 2007, namely:
33.The most controversial one was the withdrawal of US $1.5m on 12 February 2007. It is W’s case that she had no idea of H withdrawing the sum of US$ 1.5m from the SGI Funds at the time. In February 2007, the parties’ marriage was breaking up, and they were talking about a divorce. W does not believe the withdrawal of US $1.5m was for cash flow needs or for business operations as alleged by H. 34.In paragraph 8 of H’s 3rd Affidavit, H has said “It has been my past practice to invest funds in the form of a one-year loan to …… which yields a fixed annual return and withdraw part or all of the funds upon maturity to meet my companies’ cash flow needs …… I withdrew the sum of US $1.5m on 12 February 2007 to meet those needs ……”. 35.In paragraph 20 of his 4th Affidavit, H confirmed that the said sum of US $ 1.5m “ had been used by the GS Group for business operations for the year of 2007”. 36.Later, in reply to W’s queries on this withdrawal, H said in paragraph 5 of his 5th Affidavit that “The funds withdrawn …… would be kept in SGI and injected into the GS companies as and when they need the funds to meet their cash flow requirements ……. The US $1.5m withdrawn …… was at first kept in SGI and then injected into the GS companies in the amount as they needed (PB6-2367). Although the US $ 1.5m was withdrawn …… during the period when the relationship between the Petitioner and I had turned sour, the withdrawal was for business purposes only”. 37.Yet, in paragraphs 11 and 12 of the same 5th Affidavit, H stated that “SGI funded the group with these funds for February and March 2007, after which the company did very well. In May, I felt GS had enough funds to manage through the year and therefore it was able to pay back the US $1m loan I had made to it”. 38.H only provided bank statements of SGI to W’s solicitors on 17 March 2008. 39.It can be seen from such statements that on 9 May 2007, an entire sum of US $ 1m was transferred out of the SGI’s USD bank account. At the hearing of this application, Mr. Pilbrow informed the Court that the amount was transferred to H’s personal account, and was held in H’s personal account between May 2007 and January 2008 but according to Appendix 1 of Horwath’s most recent letter of 14 April 2008, this amount was apparently transferred to GS first and then to the Wells Fargo Account. It is not clear which GS account or Wells Fargo Account Horwath was referring to. Anyway, this amount was apparently a loan repayment made to H himself and, according to H’s 5th Affidavit, the amount was then used in January 2008 to pay off the mortgage raised on the Minnesota Property, taken out by H. 40.In paragraph 11 of H’s 5th Affidavit, he stated that this mortgage loan of US $1m on the Minnesota Property was taken out by him in January 2004 as a loan to the GS Group ahead of building a new office in Tokyo, and that the loan was structured as a “pay interest only” loan for a period of time which would then significantly increase in 2008 when the repayments would include the principal. According to H, the loan was obtained by the company to fund itself and build offices, and has no relationship to the KN funds (my underlining). The so called significant increase in repayment would allegedly double the previous monthly payment of about US$4,500 per month, i.e. an increase of about HK$ 35,000 per month. No documentation was produced/drawn to my attention to support his allegations. In any event, this does not appear to be a significant amount compared to the alleged monthly running costs of the GS Group or the monthly deficit which the Group will allegedly face imminently. 41.As has been referred to above, a sum of US $1m was deposited with KN on 12 February 2004 in the name of SGI, and H now says this was the amount obtained from the mortgage loan of the Minnesota Property. Thus, it now appears that the amount of US $1 m was simply deposited with KN to earn higher interest rather than funding the building of any new offices. 42.After the withdrawal of US $1.5m from KN, such sum was credited into SGI’s USD account on 13 February 2007. On 22 February 2007, a total sum of US $300,000 was transferred to GS Limited. In March 2007, a sum of about US $25,530 was transferred to GS Limited for purchase of pictures for the offices. Later, on 26 June 2007, a total sum of US $400,000 was transferred to GS, and on 22 August 2007, a further sum of US $220,000 was transferred to GS (see Appendix 1-1 of Horwath’s letter of 14 April 2008). 43.From Appendix 2 of Horwath’s 1st Report, the aggregate balances in GS Group bank accounts from January to August 2007 were :
44.Looking at the above, even though the balances in January and February were lower than the other months, there does not appear to be any no cash flow needs by the GS Group in the months of February, March, June or August which called for any injection of funds or loans from SGI or for the withdrawal of as much as US $1.5m from the SGI Funds in February 2007. The various transfers of funds into the GS Group could be due to reasons/purposes other than for cash flow needs. Anyway, there is no sufficient evidence at this stage that the transfers from SGI to the GS Group were for any cash flow needs. Unexplained Withdrawals from SGI 45.In their letter dated 9 April 2008, Lees stated that the “external deposits” into SGI (excluding all inter-account transactions) for the period from 3 January 2004 to 31 December 2007 were about US $7.349m and the “external withdrawals” for the period were about US $ 7.4m. 46.From the US $7.4 external withdrawals, after eliminating all withdrawals for which an explanation of the recipient had been provided, Lees stated that the amount of “unexplained withdrawals” from SGI ‘s bank accounts were about US $ 3m, which figure has now been revised to about US $3.4m in their latest letter of 11 April 2008. 47.In their latest letter dated 14 April 2008, Horwath, on behalf of H, provided a summary of the total US $7.4 “external withdrawals”. 48.According to Horwath’s summary (“Horwath’s Summary”), out of this total sum of about US $7.4m, about US $ 1m was H’s employment benefits “which should be borne by GS Ltd, but have been omitted to record in GS Limited’s accounts”. No explanation was given for this omission. These withdrawals appear to include, amongst others, payments to H’s credit cards, school fees, entertainment expenses, cash for home expenses, club expenses, medial expenses, and utilities etc. There were other withdrawals for non SGI expenses, such as mortgage payments for the Arizona properties, and the Whistler property. There was also an item termed “current account/loan ” with H in Horwath’s Summary of about US $1.4m, which seems to include the earlier mentioned US $1m repayment of loan to H himself and about HK$1.38m H spent on purchasing a horse fro the younger son in August 2007. 49.Out of this sum of “external withdrawals” of US $7.4m, about US $ 3.76m were described in Horwath’s Summary as “cash injections” into GS Group. 50.This amount appears to be different from the amount in the “Total Injected into GS” column in Appendix 1 of Horwath’s 1st Report. Anyway, in Appendix 2 (p.3862) of Horwath’s letter of 10 April 2008, the SGI Cash Injection into the GS Group were about US $4.176m. Further, according to Lees, on the schedules in exhibit “JAW-29” provided by H in H’s 7th Affidavit, the withdrawals to the GS Group were significantly more than the latest figures given of about US $ 3.76m. It is not clear why there were these discrepancies. 51.In the above circumstances, I agree with Ms Rattigan’s submission that the explanations put forward by H and/or Horwaths have raised further questions. It has been suggested that the accountants should have a joint meeting. This suggestion was first put forward in W, but it was only at the hearing of this application that H confirmed that he agreed to such a meeting. Unfortunately, the meeting could not be arranged prior to this hearing, although the parties’ accountants did eventually manage to discuss over the telephone. This resulted in the letter dated 11 April 2008 from Lees, and the letter dated 14 April 2008 from Horwath, which came in the morning of the hearing of the matter. Lees has not been able to comment on it. It would have been helpful if both accountants could meet and prepare a joint report on these “unexplained withdrawals” from SGI. Cash-flow Projections of GS Group 52.In Horwath’s 1st Report, they indicated that there was a seasonal trend of bank balances available to the GS Group. Since 2004, it appears that cash flow position started with low balances at the beginning of each year, after bonus payments at end of previous year or at beginning of a year, then gradually improving towards the middle of the year. At the end of each year, the cash position dropped again as a result of bonus payments. 53.However, it can be seen from Appendix 2 of Horwath’s 1st Report that in November 2007, the aggregate bank balance of GS Group was about US $6.2m and after payment of the bonus in December 2007, the aggregate bank balance of GS Group fell to about US $2.9m, and in January 2008, there was still about US $1.52m for the aggregate bank balance. (my underlining). This was considerably higher, about 5 times, the balance respectively in January of each of the years 2004, 2005, 2006, 2007. According to Mr. Pilbrow, essentially this is because that there was considerable expansion in 2007. Anyway at end of January 2008, there was still cash of about US$1.52m. 54.H has produced 2 sets of Cash-Flow Projections for the GS Group, the 1st set on 27 February 2008, and the 2nd set on 11 April 2008. 55.According to 1st Cash-Flow Projections, the GS Group would have a deficit of about -US $137,900 at the end of March, about -US $ 954,527 at end of April 2008 and about -US $ 1.9m as at end of May 2008. In the 2nd Cash-Flow Projections, these were substantially revised to +US $513,363 at end of March, about -US$228,264 at end of April, and –US $1,183,923 at end of May 2008. 56.The 2nd set of Projections in fact had omitted to include a recent injection of a sum of HK$1.5m from H. Thus for Week 3 of April, the balance should in fact be about US +$ 192,000 rather than +US $ 177,183. 57.H had produced a “Placement Trend and Statistics from 2006-2007” in his 7th Affidavit, indicating that there have only been 6 placements so far in 2008, compared to about 28 at end of April 2007, and 23 at end of April 2006. This information was not verified by Horwath. 58.At the hearing of this application, this Court was informed that a placement had just been closed on 11 April 2008, which would generate US $900,000 income but according to H, such amount would not be paid until August 2008. Again, there was no verification and no documentary evidence was provided. 59.Mr. Pilbrow submits that the 2nd Cash-Flow Projections indicate serious depletion of assets very quickly, and that funds were needed to get over the period from May until August. 60.Lees had sworn an affidavit on 18 January 2008, indicating that from his consideration of the papers available to him then, it was clear to him that H had been evasive and omitted key details in his Replies to W’s Questions. 61.It was only on 17 March 2008 that H eventually disclosed SGI’s bank statements, and it was only in H’s 5 Affidavit filed on 18 March 2008 that he disclosed that US $1m was used by him to repay the mortgage loan on the Minnesota Property in January 2008. From H’s manner of providing financial information so far, it is not unreasonable for W to be suspicious. 62.The 2 sets of Cash-Flow Projections were declared to be “prepared by the management”, and were provided by H to Horwath. Horwath’s Comments to the 1st Projections are attached to Appendix 3-1 of the Horwath’s 1st Report. Horwath clearly heavily qualified their comments by stating that their work “did not include any vouching to source documents to confirm the explanations given by H, Ms Chan, nor could they confirm any future events forecasted by the management of G S ”. 63.In particular, Horwath stated that the 1st Projections were prepared on a “worst case scenario basis” in assessing the cash flow needs for the next few months, and they were unable to comment on the reasonableness to project no cash inflows from revenue generated in March to May 2008 except it is a known fact that the performance of investment banks and financial markets worldwide have been adversely affected by the non-performance of sub-prime loans. 64.There is no sufficient evidence before this Court as to why H could not have again lent the GS Group the US $1m, bearing in mind any increase in mortgage repayments are relatively small compared to the alleged deficits, not to mention the amount of legal costs and accountants’ fees incurred by H in this application. 65.There is also no evidence that the GS Group has no other source of funding other than SGI or the SGI Funds. 66.In H’s 4th Affidavit, he says there would be “some candidates closing but not able to start collecting additional fees until May”. No details were given about such additional fees. 67.H’s application appears to me to be pre-mature, and in any event, it appears that one month’s notice is required to be given to KN for any withdrawal of funds. The parties should instruct their respective accountants, Lees and Horwath, to meet and prepare a joint report on the cash flow situation of the GS Group, after reviewing all supporting documents. 68.Considering all the circumstances, I find that at this stage there is no sufficient evidence that the GS Group requires over US $1.9m immediately. (ii) Whether GSA Is Now In Need Of All The GSA Funds 69.I now turn to the GSA Funds. 70.H says the funds are needed to meet operating costs. In support of this, H gives a breakdown of estimated operating costs of HK$100,000 per month and produces a cash-flow budget. 71.H says that he wishes to build up GSA as an additional income to the GS Group, and has hired an executive/coach to promote and manage the business. 72.Out of the monthly operating costs of HK$100,000 per month, HK$65,000 is the salary of the new executive. 73.There was no mention by H at the Hearing that he required any GSA Funds for hiring of any new executive or for any other business purposes. At the Hearing, H was concerned over the source of the funds, and was prepared to undertake not to touch those funds in order to have W removed as a director of GSA. GSA hired the new executive before H’s application. As submitted by Ms Rattigan, there could not have been any necessity for needing the GSA Funds in order to employ this new executive. 74.The GSA’s cash-flow budget shows no projected income, and again appears to be prepared by H on a “worst case scenario”. The figures were produced by H, and there has been no verification. 75.For reasons similar to those for the GS Group, there is no sufficient evidence at this stage that GSA requires the entire sum of about US $184,000 immediately. (iii) Whether The Funds, Once Released Will Be Put Beyond The Court’s Reach In Making A Final Award To W 76.Mr. Pilbrow seeks to distinguish the present case from Tan v Tan. I agree the facts of this case are quite different from those of Tan v Tan. The GS Group has been a very successful business, and seems to have weathered the storm during the Asian economic crisis and later the SARS period. 77.Mr. Pilbrow says that one should not kill the goose that lays the golden eggs and that the funds will not be put out of reach of the Court, as the other assets are “bricks and mortar”. 78.H has estimated the “Family Assets” to be in the region of US $ 58 m. H’s case is that he wants to withdraw the entirety of the SGI Funds and the GSA Funds. What he is seeking is about 1/3 of the total assets and a substantial part of the parties’ liquid assets. He has not demonstrated that he needs the entire funds, and one cannot help thinking that he simply wants the funds to be under his control. Anyway, according to his 1st Cash-Flow Projections, 100% of the entire funds would have gone by end of May 2008 and according to his 2nd Cash-Flow Projections, over 60% would have gone. Thus, W’s concerns are understandable. Conclusion 79.Having considered all the above circumstances, I dismiss H’s summons of 1 February 2008. 80.Costs will follow the event. This is an order nisi, and will be made final if no objection is received within 21 days.
Ms M Rattigan instructed by Messrs Hampton, Winter & Glynn for the Petitioner Mr D Pilbrow SC instructed by Messrs Haldanes for the Respondent |
Other judgments that cite this case
Further hearings and rulings under FCMC 5389/2007