Chang and Liao and Ors - [2009] FamCA 617

FAMILY COURT OF AUSTRALIA

CHANG & LIAO AND ORS

[2009] FamCA 617

FAMILY LAW – PROPERTY SETTLEMENT – Disclosure – Assets and Liabilities – Contributions – Adjustments

Family Law Act 1975 (Cth) ss 75 & 79

In the Marriage of Hickey (2003) 30 Fam LR 355
CJT and Anor & DAW & DJW [2006] FamCA 270
In the Marriage of Omacini (2005) 33 Fam LR 134
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) 12 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
Weir and Weir (1993) 16 FamLR 154; FLC 92-338
Black and Kellner (1992) FLC 92-287
Giunti and Giunti (1986) FLC 91 -757
Mezzacappa and Mezzacappa (1987) 11 Fam LR 957

APPLICANT:

Ms Chang

FIRST RESPONDENT:

Mr K Liao

SECOND RESPONDENT:

Mr H Liao

THIRD RESPONDENT:

C Pty Ltd

FILE NUMBER:

SYC

1271

2008

DATE DELIVERED:

17 July 2009

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

PLACE HEARD: Sydney

HEARING DATES:

19 & 20 March 2009 & 8 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT WIFE:	Mr T. Hodgson
SOLICITOR FOR THE APPLICANT:	Austin Haworth and Lexan Legal

COUNSEL FOR THE RESPONDENT

HUSBAND:

Ms P. Carr

SOLICITOR FOR THE RESPONDENT

HUSBAND

Accentro Legal

COUNSEL FOR SECOND AND THIRD

RESPONDENTS:

Ms L. Doust

SOLICITOR FOR SECOND AND THIRD

RESPONDENTS:

Yau and Wang Lawyers

Orders

Within 2 months from the date of these orders the husband shall pay $75,000 to the solicitor for the wife.
The husband and wife are to forthwith do all things and sign all necessary documents to sell by private treaty the property situated at D in the State of New South Wales and in the event that the parties are unable to agree on an issue to do with the price or the marketing of the home they are to request the President of the Real Estate Institute of NSW to make a decision on that issue and will abide by that decision.
Upon settlement of the sale of the D property the husband and wife shall cause the net proceeds of sale to be distributed in the following manner and priority:
(a)Firstly, to discharge the mortgage to the Commonwealth Bank secured on that property.
(b)Secondly, to pay all costs and expenses of the sale including legal costs and disbursements.
(c)Thirdly, in payment of agent’s commission and any advertising expenses.
(d)Fourthly, to meet the costs of the President of the Real Estate Institute of NSW or his delegate, arising from any request made by the parties pursuant to these orders;
(e)Fifthly, in the payment of the remaining net proceeds to the wife.
Otherwise, the husband and wife are each solely entitled, to the exclusion of the other, to all other…

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.

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Details

Case: [2009] FamCA 617
Decision Date: 17 June 2009

CaseChat Overview and Summary

In the matter of *Chang and Liao and Ors*, Judicial Registrar Loughnan made orders concerning the division of property between a husband and wife. The dispute involved the distribution of assets and liabilities following the breakdown of the marriage, with specific attention to a property located in New South Wales.

The court was required to determine how the parties' property and debts should be divided, including the sale of their jointly owned home and the distribution of the net proceeds. The orders also addressed the allocation of other assets, chattels, and superannuation held by each party, as well as the indemnification of each party for any debts associated with the property they retained.

Judicial Registrar Loughnan ordered the husband to pay a sum of $75,000 to the wife's solicitor within two months. The parties were directed to sell their New South Wales property by private treaty, with a mechanism in place to resolve any disagreements regarding price or marketing by seeking a decision from the President of the Real Estate Institute of NSW. The net proceeds of the sale were to be applied in a specific order of priority: firstly, to discharge the Commonwealth Bank mortgage; secondly, to cover sale costs and legal expenses; thirdly, agent's commission and advertising; fourthly, costs associated with the Real Estate Institute's involvement; and finally, any remaining proceeds were to be paid to the wife. The orders stipulated that each party would retain all other property, chattels, and superannuation in their respective names or possession, and would indemnify the other for any associated debts. The Registrar was appointed as an attorney to execute documents if either party failed to comply with the orders, and the operation of the orders was stayed for 21 days, with leave granted to restore proceedings regarding the form of the orders.

Orders

Orders of the court

Within 2 months from the date of these orders the husband shall pay $75,000 to the solicitor for the wife.

The husband and wife are to forthwith do all things and sign all necessary documents to sell by private treaty the property situated at D in the State of New South Wales and in the event that the parties are unable to agree on an issue to do with the price or the marketing of the home they are to request the President of the Real Estate Institute of NSW to make a decision on that issue and will abide by that decision.

Upon settlement of the sale of the D property the husband and wife shall cause the net proceeds of sale to be distributed in the following manner and priority:

(a) Firstly, to discharge the mortgage to the Commonwealth Bank secured on that property.

(b) Secondly, to pay all costs and expenses of the sale including legal costs and disbursements.

(d) Fourthly, to meet the costs of the President of the Real Estate Institute of NSW or his delegate, arising from any request made by the parties pursuant to these orders;

(e) Fifthly, in the payment of the remaining net proceeds to the wife.

Otherwise, the husband and wife are each solely entitled, to the exclusion of the other, to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and each shall indemnify the other in relation to any debt associated with any asset that is kept by either of them respectively.

In the event that either the husband or the wife refuses or neglects for more than fourteen (14) days to comply with any provisions of these orders, the Registrar of the Family Court of Australia, Sydney is hereby appointed pursuant to Section 106B to execute all deeds and documents in the name of the husband and to do all acts and things necessary to give validity and operation to the said orders.

The operation of these orders is stayed for a period of 21 days and leave is granted to any party on giving at least 48 hours notice to the other parties, to restore the proceedings in relation to the form of the orders by arrangement with the Associate to Judicial Registrar Loughnan.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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