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Cao & Trong (No 2)

Cao & Trong (No 2)

Case [2019] FamCA 941 9 December 2019

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FAMILY COURT OF AUSTRALIA

CAO & TRONG (NO. 2)

[2019] FamCA 941

FAMILY LAW – PROPERTY – Interim Property Orders – tax debt owed by husband – wife already disbursed over $600 000 by way of interim property orders – inability to reverse order if made – only property available for division is funds in a controlled account – ATO debt exceeds sum in account – application refused.

Child Support (Registration and Collection) Act 1988 (Cth) s 113A
Civil Procedure Act 2005 (NSW)
Civil Procedure Act 2010 (Vic)
Family Law Act 1975 (Cth) ss 75(2), 75(2)(ha), 79, 80(1)(h), 112AP, 117
Family Law Rules 2004 (Cth) ch 13, rr 1.07, 1.08, 13.07, 13.15(2)
Income Tax Assessment Act 1997 (Cth)

A v A; B v B [2000] 1 FLR 701
Brewer & Brewer [2019] FamCA 247
Browne v Green (1999) 25 Fam LR 482
Cao & Trong [2019] FamCA 336
Gabel & Yardley (2008) 40 Fam LR 66
Giorginis v Kastrati (1988) 49 SASR 371
In the Marriage of Chemaisse (1987) 11 Fam LR 392
In the Marriage of Harris (1993) 16 Fam LR 579
In the Marriage of Kowaliw (1981) 7 Fam LR N13
In the Marriage of Malpass & Mayson (2000) 27 Fam LR 288
In the Marriage of P & P (1985) 9 Fam LR 1100
In the Marriage of Radwan (1985) 11 Fam LR 1
In the Marriage of Rowell; Deputy Commissioner of Taxation (Intervener) (1989) 96 FLR 449
In the Marriage of Tingley (1984) 10 Fam LR 707
In the Marriage of Zdravkovic (1982) 8 Fam LR 97
In the Marriage of Zschokke (1996) 20 Fam LR 766
James v Plummer (1888) 23 LJNC 107
Johnson v Johnson (No 1) (1999) 26 Fam LR 475
Kyriakos v Kyriakos (2013) 48 Fam LR 618
Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627
Mitchell v Darley Main Colliery Co (1884) 1 Cab & El 215
Myers v Elman [1940] AC 282
Page v Vanker (Court of Appeal of the Supreme Court of New South Wales, unreported, 7 December 1990)
Palmdale Insurance Ltd (in liquidation) v L Grollo & Co Pty Ltd [1987] VR 113
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Price v Price [2014] FamCA 1020
Sala & Habner (2018) 337 FLR 299
Strahan v Strahan (2009) 42 Fam LR 203
TNT Management Pty Ltd v Trade Practices Commission; Brambles Holdings v Trade Practices Commission (1983) 47 ALR 693
Trustee of the Property of Lemnos v Lemnos (2009) 41 Fam LR 120

Sidney Edward Williams and Frank Guthrie‑Smith, Daniell’s Chancery Practice: being a treatise on the practice of the Chancery Division and on appeal therefrom (Sweet & Maxwell, 8^th edition, 1985)
Justice Paul Cronin, ‘The obligation to disclose; but what if they don’t’ (conference paper, National Family Law Conference, April 2008)
Edward Bray, Digest on the Law of Discovery with practice notes (Sweet & Maxwell, 1904)

APPLICANT:

Mr Cao

RESPONDENT:

Ms Trong

FIRST INTERVENER:

Deputy Commissioner of Taxation

SECOND INTERVENER:

Child…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cao & Trong (No 2)

Details

AGLC: Cao & Trong (No 2) [2019] FamCA 941
Case: [2019] FamCA 941
Decision Date: 9 December 2019

CaseChat Overview and Summary

In *Cao & Trong (No 2)*, Wilson J of the Federal Circuit and Family Court of Australia considered applications by both the wife and the husband for interim property orders concerning funds held in a controlled monies account. The dispute centred on the appropriate distribution of these funds pending final resolution of the property settlement proceedings.

The primary legal issue before the court was whether to grant interim property orders for the release of funds from the controlled monies account to either party. This required the court to assess the competing claims of the husband and wife for access to these funds during the ongoing litigation.

Wilson J refused both the wife's and the husband's applications for interim property orders from the controlled monies account. The court's reasoning, though not detailed in the provided text, indicates a determination that neither party had satisfied the necessary threshold for an interim distribution of these specific funds at that stage of the proceedings. The orders made reflect a decision to maintain the status quo of the controlled monies account pending further orders or the final determination of the property settlement.

Orders

Orders of the court

The application by the wife for further interim property orders from the controlled monies account is refused.

The application by the husband for interim property orders from the controlled monies account is refused.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Cao & Trong (No 2) [2019] FamCA 941

Most Recent Citation

Leventis & Leventis [2021] FedCFamC1F 46

Cases citing this decision · 8 of 8 shown

Goodheart & Goodheart
[2023] FedCFamC1F 715 Para 20

…uch that the court making the order must be persuaded that the part property order sought is just and equitable in all the circumstances; [9] [2019] FamCA 941. [10] (2020) 62 Fam LR 573. (l)the husband consented to a $2 million part property order and is therefore taken to have waived whatever complaint he may have…
Bolinger v Bell (No 2)
[2022] NSWSC 1495 Para 145

…s Donna-May had offered security over her property at Darlinghurst and the property at Redfern (Tcpt, 29 June 2022, p 53(13-15)); Cao & Trong (No. 2) [2019] FamCA 941 at [34]; Zschokke ; Gabel & Yardley at [69], [72] and [126]; Strahan at [136].…
Joubert & Bottari
[2022] FedCFamC1F 761 Para 13

…ows – [7] (2020) 62 Fam LR 573. 88.In Cao & Trong (No 2) [8] I distilled the relevant principles mostly from Strahan . They were as follows – [8] [2019] FamCA 941. 34.In relation to interim property orders, certain guiding principles are applicable to the facts of this case. They include the following – (a)the majo…
Toma & Doyle
[2022] FedCFamC1F 215 Para 18

…– [65] (2020) 62 Fam LR 573. 88. In Cao & Trong (No 2) [66] I distilled the relevant principles mostly from Strahan . They were as follows – [66] [2019] FamCA 941. 34.In relation to interim property orders, certain guiding principles are applicable to the facts of this case. They include the following – (a)the majo…
May & May
[2022] FedCFamC1F 227 Para 4

…ught, in the circumstances of this case, according to authorities such as Verdon & Verdon[3] and Cao & Trong (No 2).[4] [3] (2020) 62 Fam LR 573. [4] [2019] FamCA 941.…
Leventis & Leventis
[2021] FedCFamC1F 46 Para 15

…perty settlement, it is relevant to address a collection of considerations. I distilled those in Cao & Trong (No 2)[4] in the following terms – [4] [2019] FamCA 941 (at [34]). a)the majority of the court in Strahan[5] held that when consideration is being given to the appropriateness of an order being made for an i…
KONG & LENDI
[2020] FamCA 1091 Para 1

…nd f)issues about reversal of the sum sought do not arise as ample value exists in remaining Australian assets. [3] (2009) 42 Fam LR 203. [4] [2019] FamCA 941.…
Verdon & Verdon
[2020] FamCA 824 Para 11

…In Cao & Trong (No 2)[23] I distilled the relevant principles mostly from Strahan . They were as follows – [23] [2019] FamCA 941. 34.In relation to interim property orders, certain guiding principles are applicable to the facts of this case. They include the following – a)the majority of the court in Strahan & Stra…

View all 8 citing cases →

Cases cited in this decision · 10 of 10 shown

Strahan v Strahan
[2019] HCASL 327

…& Co Pty Ltd [1987] VR 113 Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 Price v Price [2014] FamCA 1020 Sala & Habner (2018) 337 FLR 299 Strahan v Strahan (2009) 42 Fam LR 203 TNT Management Pty Ltd v Trade Practices Commission; Brambles Holdings v Trade Practices Commission (1983) 47 ALR 693 Trustee of the Pr…
Cao & Trong
[2019] FamCA 336 Para 1

…mated ” because both husband and wife contend that the respective asset position of each has not been properly and exhaustively divulged. [1] [2019] FamCA 336 [2] The amount sought was fluid…
Brewer & Brewer
[2019] FamCA 247 Para 1

…ively while concurrently keeping uppermost in mind the proportionality of the disputed issues relative to the overall contest. [13] [2019] FamCA 247 [14] Sidney Edward Williams and Frank Guthrie‑Smith, Daniell’s Chancery Practice: being a treatise on the practice of the Chancery Division and on appeal therefrom (Sw…
PRICE & PRICE
[2014] FamCA 1020 Para 4

…ent illustration was given of a single judge referring a case to the Australian Taxation Office in Price v Price. [40] [39] (2000) 27 Fam LR 288 [40] [2014] FamCA 1020…
Paris King Investments Pty Ltd v Rayhill
[2006] NSWSC 578 Para 1

…h Wales in Paris King Investments Pty Ltd v Rayhill ,[10] In the Marriage of Zschokke[11] and Strahan v Strahan .[12] [9] (2013) 48 Fam LR 618 [10] [2006] NSWSC 578 [11] (1996) 20 Fam LR 766 [12] (2009) 42 Fam LR 203…
Browne v Green
[2002] FamCA 791

…A v A; B v B [2000] 1 FLR 701 Brewer & Brewer [2019] FamCA 247 Browne v Green (1999) 25 Fam LR 482 Cao & Trong [2019] FamCA 336 Gabel & Yardley (2008) 40 Fam LR 66 Giorginis v Kastrati (1988) 49 SASR 371 In the Marriage of Chemaisse (1987) 11 Fam LR 392 In the Marriage of Harris (1993) 16 Fam LR 579 In the Marriage of K…
Johnson v Johnson
[1999] HCATrans 362

…A v A; B v B [2000] 1 FLR 701 Brewer & Brewer [2019] FamCA 247 Browne v Green (1999) 25 Fam LR 482 Cao & Trong [2019] FamCA 336 Gabel & Yardley (2008) 40 Fam LR 66 Giorginis v Kastrati (1988) 49 SASR 371 In the Marriage of Chemaisse (1987) 11 Fam LR 392 In the Marriage of Harris (1993) 16 Fam LR 579…
Darley Main Colliery Co v Mitchell
(1886) 11 App Cas 127

…LJNC 107 Johnson v Johnson (No 1) (1999) 26 Fam LR 475 Kyriakos v Kyriakos (2013) 48 Fam LR 618 Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 Mitchell v Darley Main Colliery Co (1884) 1 Cab & El 215 Myers v Elman [1940] AC 282 Page v Vanker (Court of Appeal of the Supreme Court of New South Wales, unreported, 7 December 1990) Palmd…
[1940] AC 282
[1940] AC 282 Para 2

…ose the obligation of continuing discovery were not even referred to in Bray’s Digest on the Law of Discovery .[20] [16] (1884) 1 Cab & El 215 [17] [1940] AC 282 [18] (1888) 23 LJNC 107 [19] (1983) 47 ALR 693 [20] Edward Bray, Digest on the Law of Discovery with practice notes (Sweet & Maxwell, 1904)…
[1980] 1 WLR 627
[1980] 1 WLR 627 Para 3

…the offence created by r 13.15(2). That offence is additional to the contempt power reposed in s 112AP of the Family Law Act . [21] [1980] 1 WLR 627 [22] [1987] VR 113…

Legislation cited in this decision · 6

Family Law Act 1975 (Cth)
112AP, 117, 75(2), 75(2)(ha), 79, 80(1)(... 7 mentions (from Para 8)
Child Support (Registration and Collection) Act 1988 (Cth)
113A 1 mention
Civil Procedure Act 2005 (NSW)
1 mention
Civil Procedure Act 2010 (Vic)
1 mention
Family Law Rules 2004 (Cth)
1 mention
Income Tax Assessment Act 1997 (Cth)
1 mention