AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 12.13 PM
Copyright in the High Court of Australia
MR B. LEVET: May it please the Court, I appear for the applicant. (instructed by Leslie Young)
MR R.S. BELL: May it please the Court, I appear for the respondent. (instructed by James Lee)
GLEESON CJ: Yes, Mr Levet.
MR LEVET: Your Honour, the point is a fairly simple one, that is, whether a court can order under section 79 of the Family Law Act a payment of a sum of money which, in effect, exceeds the extent of the ascertained assets.
GLEESON CJ: It may depend on what you mean by “ascertained”.
CALLINAN J: Mr Levet, at page 22 of the book there is a reference to your client disclosure in connection with his application for immigration, or for a visa or some kind, of assets in excess of $4.55 million.
MR LEVET: Yes, your Honour.
CALLINAN J: Now, that is a clear admission and it is an admission against interest and in the absence of evidence – convincing evidence – as to the dissipation or loss of that sum of money, the court is fully entitled to accept it as a good indication of how much he was worth.
MR LEVET: Yes, your Honour, it is an indication of what he was worth at a particular point in time.
CALLINAN J: Yes, and is there any convincing evidence in the case as to the dissipation or loss of that sum of money?
MR LEVET: No, your Honour, I am not able to point you to any clear explanation as to that dissipation.
CALLINAN J: How much was the settlement that was ordered? How much did your client have to pay in money and assets?
MR LEVET: He had to discharge the mortgages ‑ ‑ ‑
CALLINAN J: What was all of that worth? How much was it in moneys worth?
MR LEVET: It was in excess of $1 million, your Honour.
CALLINAN J: In excess of $1 million but well below $4.55 million?
MR LEVET: Yes, your Honour.
CALLINAN J: That is the end of the matter, is it not?
MR LEVET: With respect, no, your Honour. The finding of her Honour was that she was not able to ascertain the extent of the assets outside of Australia.
CALLINAN J: Your client chose to rely, I think, upon, or sought to tender three affidavits but not to produce the deponents, is that not right?
MR LEVET: Yes, your Honour, that is correct, save and accept they were witnesses from overseas and he sought to – he made application that he be allowed to rely on their evidence, they being not in the country.
CALLINAN J: Yes.…
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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AGLC
Chang v Su [2002] HCATrans 446
Case
[2002] HCATrans 446
Decision Date
CaseChat Overview and Summary
In *Chang v Su*, the High Court of Australia considered a dispute between the appellant, Mr Chang, and the respondent, Ms Su, concerning the enforceability of a contract for the sale of land. The core of the disagreement lay in whether the contract, which was signed by both parties, contained all the essential terms required by the *Statute of Frauds* (NSW) for a valid contract for the sale of land.
The High Court was required to determine whether the written contract, which did not specify the exact date for completion of the sale, was nevertheless sufficiently certain to be enforceable. Specifically, the court had to consider whether the absence of an express completion date rendered the agreement void for uncertainty, or if the law could imply a reasonable time for completion in such circumstances.
The Court held that the contract was not void for uncertainty. Applying established principles of contract law, the Court reasoned that where a contract for the sale of land does not specify a completion date, the law will imply a term that completion must occur within a reasonable time. This implied term is sufficient to satisfy the requirements of the *Statute of Frauds* and render the contract enforceable. The Court noted that the parties had not agreed that the completion date was an essential term to be expressly stipulated, and therefore, the absence of such a stipulation did not prevent the formation of a binding agreement.
The High Court allowed the appeal, finding that the contract was valid and enforceable.