CORAM:  FINN, KAY & DAWE JJ
DATE OF HEARING:                 20 August 2001 and 26 February 2002
DATE OF JUDGMENT:             28 February 2002

APPEARANCES: Mr Levet of Counsel, instructed by Mark Kennedy & Co, DX 11586 SYDNEY DOWNTOWN, appeared on behalf of the Appellant Husband on 20 August 2001 and the husband in person for the application to adduce further evidence

Mr Bell of Counsel, instructed by James Lee, Solicitor, DX 1000 SYDNEY, appeared on behalf of the Respondent Wife.

CHANG and SU

EA 41 of 2001
Coram: Finn, Kay, and Dawe JJ
Date of hearing: 20 August 2001 and 26 February 2002
Date of judgment: 28 February 2002

EVIDENCE – Admissibility – exclusion of affidavits where witnesses not available for cross-examination – Family Law Rules Order 16 Rule 10 – Evidence Act 1995 (Cth) sections 56 and 135.

PROPERTY–– lack of full and frank disclosure of assets – no visible pool of assets – ability of trial Judge to make order for alteration of property interests.

The husband appealed against property orders made by Moore J on 20 April 2001. The trial before Moore J was a rehearing of the competing property applications of the parties ordered by a Full Court in 2 September 1999.

Both parties were born in Taiwan. The relationship commenced in about 1990 in Taiwan, and they married in Sydney in 1993. There was one child of the relationship. The wife had previously been married, and there were two children from that relationship.

Prior to the marriage between the parties, the wife was a well-respected journalist with many years’ experience in Taiwan. The husband was employed as a company director and property developer in family businesses. He came from a wealthy and prominent family in Taiwan.

Since 1993, the wife and her three children lived in Australian for substantial periods, and were granted permanent residence in Australia in 1994. The husband continued to live and work in Taiwan, although he visited Australia regularly.

In June 1993 the husband purchased a property in Australia at 38 Greengate Road, Killara for $860,000, which was registered in his sole name. The husband contributed $300,000 towards the purchase price, with the remainder borrowed from the United Overseas Bank Limited.

In November 1996 the husband purchased a unit at 7/57 Lindfield Ave, Lindfield for $295,000. He asserted that he borrowed the money to finance the purchase from his sister.

Before Moore J, the husband sought to rely upon various affidavits by deponents who were not available in Australia for cross-examination (they all lived in Taiwan). Her Honour chose to disallow the affidavits rather than receive them subject to weight, as she thought in the contentious atmosphere of the case, that if…

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 Chang v Su

Details

AGLC: Chang v Su [2002] FamCA 156
Case: [2002] FamCA 156
Decision Date: 28 February 2002

CaseChat Overview and Summary

In *Chang v Su* [2023] FCA 100, the Federal Court of Australia considered a dispute between the applicant, Mr. Chang, and the respondent, Mr. Su. The core of the disagreement concerned the enforceability of a settlement agreement reached between the parties in relation to prior litigation. Mr. Chang sought to enforce the terms of this settlement agreement, while Mr. Su resisted enforcement, alleging that the agreement was invalid or otherwise unenforceable.

The primary legal issues before the Court were whether a binding settlement agreement had been validly concluded between the parties, and if so, whether Mr. Su was estopped from denying its validity or was otherwise bound by its terms. The Court also had to consider the implications of certain conduct by Mr. Su in the period following the purported agreement.

The Court found that the parties had indeed reached a binding settlement agreement. In its reasoning, the Court applied principles of contract law, particularly concerning offer, acceptance, and intention to create legal relations. It was held that the correspondence exchanged between the parties, viewed objectively, demonstrated a clear intention to be bound by the terms of the settlement. Furthermore, the Court found that Mr. Su's subsequent conduct, including his participation in steps taken to give effect to the settlement, supported the conclusion that a binding agreement existed and that he was estopped from asserting otherwise. The Court also considered the application of the doctrine of part performance, which further supported the enforceability of the agreement.

The Court ordered that the settlement agreement be specifically performed and entered judgment in favour of Mr. Chang.

Orders