Chen and Chen and Ors (No 2) - [2017] FamCA 555

FAMILY COURT OF AUSTRALIA

CHEN & CHEN AND ORS (NO 2)

[2017] FamCA 555

FAMILY LAW – PROPERTY – interlocutory orders. Where relationships are complicated by various parties and a financial agreement. Order to hear setting aside application separately.

Family Law Act 1975 (Cth)

Mulley v Manifold (1959) 103 CLR 341
R v Ross-Jones; ex parte Green (1984) 156 CLR 185

APPLICANT:

Ms Chen

1^ST RESPONDENT:

Mr Chen

2^ND RESPONDENT:	Mr Quen
3^RD RESPONDENT:	C Pty Ltd (ACN …)
4^TH RESPONDENT:	Quen Pty Ltd (ACN …)
5^TH RESPONDENT:	E Pty Ltd (ACN …)
6^TH RESPONDENT:	Company F (ACN …)
7^TH RESPONDENT:	G Pty Ltd (ACN …)
8^TH RESPONDENT:	Mr A Chen

9^TH RESPONDENT:

Mr B Chen

10^TH RESPONDENT:

Mr C Chen

FILE NUMBER:

MLC

5805

2016

DATE DELIVERED:

3 August 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

27 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dinelli

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE 2^ND, 4^TH, 5^TH AND 6^TH

RESPONDENTS:

Mr Glick QC with Mr Matta

SOLICITOR FOR THE RESPONDENT:

Bowlen Dunstan & Associates

COUNSEL FOR THE 3^RD, 8^TH, 9^TH AND 10^TH RESPONDENTS:

Mr Puckey

SOLICITOR FOR THE INTERVENOR:

Marshalls & Dent

Orders

That the dispute relating to the binding nature of the financial agreement executed between the first respondent and the second respondent in October 2015 be heard separately from all other matters pending.
That the parties attend a mention at 9.00am on 16 August 2017 for the purposes of determining the date for the hearing referred to in paragraph (1) of these orders and for any timetable to be so prepared.
That the second respondent file and serve on all other parties a financial statement that complies with Chapter 13 of the Family Law Rules 2004 by 31 August 2017.
That the second respondent provide discovery of the documents referred to in (a) and (b) of Annexure A to the wife’s submissions filed 26 July 2017 such that the extent of discovery accords with the reasons for judgment this day.
That all outstanding applications for final relief are adjourned to a date to be fixed convenient to the court.
That all interim applications relating to orders by way of written submissions are otherwise dismissed save as to paragraph [3] of the response of the third, eighth, ninth and tenth named respondents filed on 19 July 2017 seeking that interim order which is adjourned to a date to be fixed to be listed by arrangement with the court.

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 (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note:…

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 (No 2)

Details

AGLC: Chen and Chen and Ors (No 2) [2017] FamCA 555
Case: [2017] FamCA 555
Decision Date: 3 August 2017

CaseChat Overview and Summary

In *Chen and Chen and Ors (No 2)*, Cronin J of the Family Court of Australia considered a dispute between the parties concerning the binding nature of a financial agreement made in October 2015.

The primary legal issue before the court was whether the financial agreement executed between the first and second respondents was binding. This determination was to be heard separately from all other matters pending in the proceedings.

Cronin J ordered that the question of the financial agreement's binding nature be heard as a separate issue. The court also made directions regarding the attendance of parties for a mention to set a hearing date for this separate issue and to establish a timetable. Further orders included the filing of a financial statement by the second respondent, discovery of specific documents, and the adjournment of outstanding applications for final relief. Interim applications were largely dismissed, with one specific interim application adjourned.

Orders

Orders of the court

That the dispute relating to the binding nature of the financial agreement executed between the first respondent and the second respondent in October 2015 be heard separately from all other matters pending.

That the parties attend a mention at 9.00am on 16 August 2017 for the purposes of determining the date for the hearing referred to in paragraph (1) of these orders and for any timetable to be so prepared.

That the second respondent file and serve on all other parties a financial statement that complies with Chapter 13 of the Family Law Rules 2004 by 31 August 2017.

That the second respondent provide discovery of the documents referred to in (a) and (b) of Annexure A to the wife’s submissions filed 26 July 2017 such that the extent of discovery accords with the reasons for judgment this day.

That all outstanding applications for final relief are adjourned to a date to be fixed convenient to the court.

That all interim applications relating to orders by way of written submissions are otherwise dismissed save as to paragraph [3] of the response of the third, eighth, ninth and tenth named respondents filed on 19 July 2017 seeking that interim order which is adjourned to a date to be fixed to be listed by arrangement with the court.

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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