Chen and Chen and Ors - [2018] FamCA 828

FAMILY COURT OF AUSTRALIA

CHEN & CHEN AND ORS

[2018] FamCA 828

FAMILY LAW – PROPERTY – Application to set aside financial agreement between husband and third party who has lived in a de facto relationship unknown to the wife – wife ignorant of agreements being concluded – agreements set aside.

Family Law Act 1975 (Cth)

Bourke v Bourke [2009] FamCA 27
Chen & Chen and Anor (No. 2) [2017] FamCA 285
Cooper v Southern Portland Cement Ltd [1972] HCA 29; (1973) CLR 427
In the Marriage of Holley [1982] FLC 91-257
Lewski v Commissioner of Taxation [2017] FCAFC 145
Thorne v Kennedy (2017) HCA 49

THE APPLICANT:

Ms Chen

THE 1^STRESPONDENT:

Mr Chen

THE 2^ND RESPONDENT:

Ms Quen

THE 3^RD RESPONDENT:

C Pty Ltd

THE 4^TH RESPONDENT:

Quen Pty Ltd
(ACN …)

THE 5^TH RESPONDENT:

E Pty Ltd
(ACN …)

THE 6^TH RESPONDENT:

Company F
(ACN …)

THE 7^TH RESPONDENT:

GPL
(ACN …)

THE 8^TH RESPONDENT:

Mr A Chen

THE 9^TH RESPONDENT:

Mr B Chen

THE 10^TH RESPONDENT:	Mr C Chen
FILE NUMBER:		MLC	5805	of		2016

DATE DELIVERED:

17 October 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

1–3, 15–17 November 2017, 12–15 December 2017, and 1 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dickson QC with
Dr Dinelli

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE

1^ST RESPONDENT:

Mr Wilson

SOLICITOR FOR THE

1^ST RESPONDENT:

Bowlen Dunstan & Associates

COUNSEL FOR THE 2^NDAND 4^TH TO 7^TH

RESPONDENTS:

Mr Strum QC with
Dr Ingleby

SOLICITOR FOR THE 2^NDAND 4^TH TO 7^TH

RESPONDENTS:

Kenna Teasdale Lawyers

COUNSEL FOR THE 3^RDAND 8^TH TO 10^TH

RESPONDENTS:

Mr Puckey

SOLICITOR FOR THE 3^RDAND 8^TH TO 10^TH

RESPONDENTS:

Marshalls & Dent & Wilmoth

Orders

Pursuant to Section 90UM of the Family Law Act 1975 (Cth), the financial agreement between Ms Quen and Mr Chen executed on 15 October 2015 is set aside.
All outstanding applications for financial relief are adjourned to a date to be fixed for determination by a judge.
Any party seeking a costs order arising under these orders and arising out of these proceedings may do so by written application to be filed and served by no later than 1 November 2018 and any response thereto be filed and served by no later than 21 November 2018 and that thereafter, subject to any determination of the trial judge, the costs applications be determined in chambers.
That all parties have liberty to apply on short notice for any other consequential orders arising out of these orders.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chen & Chen and Ors has been approved by the Chief Justice pursuant to…

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 Chen and Chen and Ors

Details

AGLC: Chen and Chen and Ors [2018] FamCA 828
Case: [2018] FamCA 828
Decision Date: 17 October 2018

CaseChat Overview and Summary

In the matter of *Chen and Chen and Ors*, heard by Cronin J, the dispute concerned the validity of a financial agreement entered into between Ms Quen and Mr Chen on 15 October 2015. The court was required to determine whether this financial agreement should be set aside, thereby allowing for the determination of outstanding applications for financial relief between the parties.

The central legal issue before the court was whether the financial agreement met the requirements of Section 90UM of the *Family Law Act 1975* (Cth). This section provides grounds for setting aside a financial agreement if certain conditions are met, including if the agreement was obtained by fraud, if a party failed to disclose material matters, or if there was duress or undue influence.

Cronin J ordered that the financial agreement be set aside pursuant to Section 90UM of the *Family Law Act 1975* (Cth). Following this determination, all outstanding applications for financial relief were adjourned for future determination by a judge. The court also made orders regarding the process for any party seeking costs arising from these proceedings, with specific timelines for written applications and responses, and the possibility of determination in chambers. Liberty to apply for consequential orders was also granted.

Orders

Orders of the court

Pursuant to Section 90UM of the Family Law Act 1975 (Cth), the financial agreement between Ms Quen and Mr Chen executed on 15 October 2015 is set aside.

All outstanding applications for financial relief are adjourned to a date to be fixed for determination by a judge.

Any party seeking a costs order arising under these orders and arising out of these proceedings may do so by written application to be filed and served by no later than 1 November 2018 and any response thereto be filed and served by no later than 21 November 2018 and that thereafter, subject to any determination of the trial judge, the costs applications be determined in chambers.

That all parties have liberty to apply on short notice for any other consequential orders arising out of these orders.

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

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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