Chen & Chen & Ors (No. 3)
[2020] FamCA 744
•9 September 2020
FAMILY COURT OF AUSTRALIA
| CHEN & CHEN AND ORS (NO. 3) | [2020] FamCA 744 |
| FAMILY LAW – PRACTICE AND PROCEDURE – strike out application – incorporation of High Court Rules where Family Law Rules are silent on a matter – Family Law Rules making no provision for a pleading strike out application – incorporation of High Court Rules to that strike out application. PLEADINGS – inconsistent pleadings – vague, embarrassing and otherwise vexatious pleadings – strike out application well-founded. RESULTING TRUSTS – allegation made that certain real property and shares held by the second respondent on a resulting trust – detailed examination of all relevant authorities – held, pleading defective. CONSTRUCTIVE TRUSTS – allegation made that certain real property and shares held by the second respondent on a constructive trust – detailed examination of relevant authorities – held, pleading defective. TRACING – remedy in equity – need to show a proprietary interest in funds that are used to acquire the asset over which a resulting or constructive trust is asserted – review of relevant academic writings and authorities. IN PERSONAM EXCEPTION TO INDEFEASIBILITY OF TITLE – Breskvar v Wall (1971) 126 CLR 376 – no allegation of personal impropriety of conduct alleged against registered proprietor – held, pleading defective. STRIKE OUT APPLICATION – purpose of a strike out application – need for precision in pleading complex legal and equitable claims – undesirability of permitting a case to go forward in which the claims and causes of action are not properly pleaded. |
| Rules of the High Court of Australia (Cth), rr27.02.1, 27.02.2, 27.09.5 Family Court Rules 2004 (Cth), Ch 13, |
| Allen v Snyder [1977] 2 NSWLR 685 Ashmore v Corporation of Lloyd’s [1992] 1 WLR 446 Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557 Australian Securities and Investments Commission v Kobelt [2019] 93 ALJR 743. Bacall & Zagar [2020] FamCA 350 Bahr v Nicolay (No 2) (1988) 164 CLR 604 Banque Commerciale SA (en liq) v Akhil Holdings Pty Ltd (1990) 169 CLR 270 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 Baumgartner v Baumgartner(1987) 164 CLR 137 Bloch v Bloch (1981) 180 CLR 390 Breskvar v Wall (1971) 126 CLR 376 Bruce v Odhams Press Ltd [1936] 1 KB 697 Calverley v Green (1984) 155 CLR 242 Cao & Trong[2019] FamCA 336 Carboneau v Peterson, 95 P 2d 1043 (1939) (Washington S.C.) Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 Chen & Chen [2018] FamCA 828 Chen & Chen [2020] FamCA 602 Commerce Commissions v Fletcher Challenge Ltd. [1989] 2 NZLR 554 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Commissioner of State Revenue (NSW) v Dick Smith Electronics Holdings Pty Ltd (2005) 221 CLR 496 Cook v Fountain [1676] 36 ER 984 Cummings v Lewis (1993) 113 ALR 285 Dare v Pulham (1982) 148 CLR 658 Davy v Garrett (1878) 7 Ch D 473 Deiter & Deiter [2011] FamCAFC 82 Director of Consumer Affairs Victoria v Scully (1983) 151 CLR 447 Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562 Director of Public Prosecutions for the State of Victoria v Le (2007) 232 CLR 562 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431 Dyer v Dyer [1788] 30 ER 42 Eaby & Speelman [2015] FamCAFC 104 Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 Eves v Eves [1975] 1 WLR 1338 Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 Fortex Group Ltd v MacIntosh, unreported New Zealand Court of Appeal, 30 March 1998 Fowkes v Pascoe (1875) LR 10 Ch App 343, 348 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gissing v Gissing [1971] AC 886 Giumelli v Giumelli (1999) 196 CLR 101 Goldsmith v Sandilands (2002) 76 ALJR 1024 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 Hancock Family Memorial Formulation Ltd v Porteous (2000) 32 ASCR 124 Hepworth v. Hepworth (1963) 110 CLR 309, 318 Higgins v Wingfield [1987] VR 689 Hohol v Hohol [1981] VR 221 House v Caffyn [1922] VLR 67 Hussey v Palmer [1972] 1 WLR 1286 Issitch v Worrell (2000) 172 ALR 586 J.C. Decaux Pty Ltd v Adshel Street Furniture Pty Ltd (2000) 178 ALR 339 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 Khalif & Khalif [2020] FamCA 39 Knowles v Roberts (1888) 38 Ch D 263 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Legione v. Hateley (1983) 152 CLR 406 Liberty Financial Pty Ltd v Scott (No 3) [2005] VSC 363 Macmillan Inc v Bishopsgate Investment Trust Plc (No 3) [1995] 1 WLR 978 Marvel v Marvel (2010) 43 Fam LR 348 Matheson Nominees Pty Ltd v Aero Developments Pty Ltd [2016] VSC 131 McNab v Graham [2017] VSCA 352 Meinhard v. Salmon (1928) 164 NE 545 Millington v Loring (1880) 6 QBD 190 Muschinski v Dodds (1985) 160 CLR 583 Napier v Public Trustee (WA) (1980) 55 ALJR 1 Paciocco v Australia & New Zealand Banking Group Ltd (2016) 258 CLR 525 Pettitt v Pettitt [1970] AC 777 Philipps v Philipps (1878) 4 QBD 127 Pollard & Nordberg [2019] FamCA 365 Re Morgan (1887) 35 Ch D 492 Re Polly Peck International plc (No 2) [1998] 3 All ER 812 Re Smith; Rugg v Hughes (1884) 9 P 68 Re Wrightson; Wrightson v Cooke [1908] 1 Ch 789 Redgrave v Hurd (1881) 20 Ch D 1 Redmond & Redmond [2014] FamCAFC 155 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 Smith v Musgrove (1885) 11 VLR 440 Sorna Pty Ltd v Flint (2000) 21 WAR 563 SS & AH [2010] FamCAFC 13 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1 UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 457 Wickstead v Browne (1992) 30 NSWLR 1 Wirth v Wirth (1956) 98 CLR 228 Xiao Hui Ying v Perpetual Trustees Victoria Ltd [2015] VSCA 124 Zapletal v. Wright (1957) Tas.SR 211 |
| Gerard M. D. Bean, Fiduciary Obligations and Joint Ventures (1995) The Collaborative Fiduciary Relationships, Clarendon Press Oxford The Honourable Justice James Edelman, Understanding Tracing Rules (2016) 16(2) QUT Law Review 1 Gbolahan Elias, Explaining Constructive Trusts (The Lawbook Exchange, New Jersey, 2002) Sir Howard W. Elphinstone, Elphinstone’s Introduction to Conveyancing (Sweet & Maxwell, 7th ed, 1918) Jamie Glister and James Lee, Hanbury & Martin Modern Equity (2018) 21st ed, Sweet & Maxwell Thomson Renters Stephan Leake, An Elementary Digest of the Law of Property in Land (1874) Whitmore L. Richards and James I. Stirling, Godefroi’s The Law Relating to Trusts and Trustees (Stevens & Sons, 3rd ed, 1907) Professor Lionel D. Smith, The Law of Tracing (Clarendon Press, 1997) William Swadling, Explaining Resulting Trusts (2008) 124 LQR 72, 79 - 94 |
| APPLICANT: | Ms Chen |
| FIRST RESPONDENT: | Mr Chen |
| SECOND RESPONDENT: | Ms Quen |
| THIRD RESPONDENT: | C Pty Ltd (ACN…) |
| FOURTH RESPONDENT: | Quen Pty Ltd (ACN …) |
| FIFTH RESPONDENT: | E Pty Ltd (ACN …) |
| SIXTH RESPONDENT: | Company F Pty Ltd (ACN …) |
| SEVENTH RESPONDENT: | G Pty Ltd (ACN …) |
| EIGHTH RESPONDENT: | Mr A Chen |
| NINETH RESPONDENT: | Mr B Chen |
| TENTH RESPONDENT: | Mr C Chen |
| FILE NUMBER: | MLC | 5805 | of | 2016 |
| DATE DELIVERED: | 9 September 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 28 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Albert Dinelli |
| SOLICITOR FOR THE APPLICANT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE FIRST RESPONDENT: | No Appearance |
| SOLICITOR FOR THE FIRST RESPONDENT: | Jano Family Law |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Leslie Glick One of Her Majesty’s Counsel |
| SOLICITOR FOR THE SECOND RESPONDENT: | Kenna Teasdale Lawyers |
| THIRD RESPONDENT: | In person |
| COUNSEL FOR THE FOURTH RESPONDENT: | Mr Leslie Glick One of Her Majesty’s Counsel |
| SOLICITOR FOR THE FOURTH RESPONDENT: | Kenna Teasdale Lawyers |
| COUNSEL FOR THE FIFTH RESPONDENT: | Mr Leslie Glick One of Her Majesty’s Counsel |
| SOLICITOR FOR THE FIFTH RESPONDENT: | Kenna Teasdale Lawyers |
| COUNSEL FOR THE SIXTH RESPONDENT: | Mr Leslie Glick One of Her Majesty’s Counsel |
| SOLICITOR FOR THE SIXTH RESPONDENT: | Kenna Teasdale Lawyers |
| SEVENTH RESPONDENT: | No Appearance |
| EIGHTH RESPONDENT: | In Person |
| COUNSEL FOR THE NINTH RESPONDENT: | Mr R Edmunds |
| SOLICITOR FOR THE NINTH RESPONDENT: | No Appearance |
| COUNSEL FOR THE TENTH RESPONDENT: | Mr R Edmunds |
| SOLICITOR FOR THE TENTH RESPONDENT: | No Appearance |
Orders
The interim defended hearing listed on 14, 15 & 16 September 2020 is vacated.
On or before 4pm on 16 September 2020 the parties provide chambers with a minute giving effect to my reasons.
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 has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER:
| Ms Chen |
Applicant
And
| Mr Chen |
First Respondent
And
| Ms Quen |
Second Respondent
And
| C Pty Ltd (ACN …) |
Third Respondent
And
| Quen Pty Ltd (ACN …) |
Fourth Respondent
And
| E Pty Ltd (ACN …) |
Fifth Respondent
And
| Company F Pty Ltd (ACN …) |
Sixth Respondent
And
| G Pty Ltd (ACN …) |
Seventh Respondent
And
| Mr A Chen |
Eighth Respondent
And
| Mr B Chen |
Ninth Respondent
And
| Mr C Chen |
Tenth Respondent
REASONS FOR JUDGMENT
Introduction
In the present debate before me, the second respondent has challenged the applicant’s latest iteration of the statement of claim in which the applicant asserts that a resulting trust in the applicant’s favour has arisen pursuant to which the second respondent has been constituted as a resulting trustee, the applicant being the beneficiary of that resulting trust.
On behalf of the second respondent, Mr Glick QC has generally challenged the applicant’s pleading prepared by Dr Albert Dinelli of counsel.
At the heart of the debate on the strike out application brought by Mr Glick QC’s client was a relatively simple factual scenario. This being a strike out application, Mr Glick urged me to treat it akin to a demurrer in which all facts on which the pleading was premised were presumed to be correct in the applicant’s favour. Accepting that as a starting point, Mr Glick QC contended that according to the current status of Australian law on the subject of resulting trusts, the pleading advanced by the applicant could not succeed. Mr Glick QC brought this strike out in reliance upon well-known principles in operation in superior courts of record administering law and equity across Australia founded on concepts of truth in pleadings. He submitted that, applying principles espoused in cases such as General Steel Industries Inc v Commissioner for Railways (NSW),[1] a respondent should not be required to prepare for a trial involving factual and legal issues that cannot succeed. Mr Glick argued that the applicant’s resulting trust argument and her constructive trust argument is doomed to fail and so they should be nipped in the bud.
[1] (1964) 112 CLR 125.
Dr Dinelli disagreed with that position.
Before descending to the minutiae of the debate it is utile to put the resulting trust argument into context. Expressed most briefly, the applicant contended that the first respondent used money that was generated by the operation of a family business in which the applicant as wife and the first respondent as husband had an interest. The wife said, broadly, that the husband applied money generated by that family business to acquire certain real estate that was registered in the name of the second respondent.
In previous decisions in this court in this case (which I surveyed in Chen & Chen),[2] the nature of the relationship between the first and second respondents was examined. While the point has not been proved following a trial, it seemed uncontroversial that the first and second respondents were in a de facto relationship concurrently with the first respondent’s marriage with the applicant. The applicant takes the view that by reason of the husband’s use of money generated by the family business and its application in the acquisition of real estate of which the second respondent is registered as the proprietor, the applicant has an interest in that real estate in pursuance of a resulting trust. The second respondent contends that no such alleged trust arises and that the second respondent holds the property of which she is the registered proprietor absolutely, free from any resulting trust allegedly impressed upon her title.
[2] [2020] FamCA 602.
It must be acknowledged from the outset that the law in relation to resulting trusts is difficult and that the doctrine in Australia has diverged from the doctrine in the United Kingdom. It must also be acknowledged that the task of pleading the facts and circumstances giving rise to such a claim is fraught with difficulty. Dr Dinelli recognised as much but argued that having regard to the state of information presently available to him, the applicant’s pleaded claim for a resulting trust in the latest version of the statement of claim can be properly advanced and in any event, so Dr Dinelli argued, it satisfied all relevant criteria prescribed by law.
Synopsis
For the reasons that follow, I am of the view that the resulting trust claims and other claims advanced by the applicant in her further amended statement of claim must be struck out. The whole of the further amended statement of claim should be struck out.
Pleadings in the family court
In Cao & Trong[3] I explained the circumstances in which pleadings were appropriate in property cases in this court. Not all cases warrant pleadings. Multi-party cases where claims are advanced on equitable grounds or grounds beyond simple property alteration orders under s 79 in the case of married persons or under s 90SM in the case of persons in de facto relationships are appropriate to warrant pleadings. In this case an order was made for pleadings on 6 December 2019 by McEvoy J. On 28 July 2020 the applicant filed and served the current iteration of the statement of claim on which she relies. In it she included a claim that a resulting trust had arisen in relation to certain real estate. As has already been mentioned in overview, the applicant contends, in essence, that the first respondent appropriated money generated by a family endeavour in which the wife had an interest and used that money to purchase real estate of which the second respondent became the registered proprietor. While Dr Dinelli did not say so in terms, no doubt the applicant relies on the equitable concept narrated in Hanbury & Martin Modern Equity[4] as follows –
A RESULTING trust in a situation in which a transferee is required by equity to hold property on trust for the transferor; or for the person who provided the purchase money for the transfer. The beneficial interest results, or comes back, to the transferor or to the party who makes the payment. In effect, the resulting trust is the basis of a claim to recover one’s own property.
[3][2019] FamCA 336.
[4] Jamie Glister and James Lee, Hanbury & Martin Modern Equity (2018) 21st ed, Sweet & Maxwell Thomson Renters, paragraph 11 – 001.
In support, the learned authors cite the UK decision of Macmillan Inc v Bishopsgate Investment Trust Plc (No 3).[5] Yet the doctrine in equity of the resulting trust is of very considerable antiquity and veneration.[6] The appellation “resulting trust” is a descriptor of a conclusion of law from a state of affairs, as was explained by W. Swadling in his learned article Explaining Resulting Trusts.[7]
[5][1995] 1 WLR 978.
[6] Cook v Fountain [1676] 36 ER 984, Dyer v Dyer [1788] 30 ER 42 and Fowkes v Pascoe (1875) LR 10 Ch App 343, 348.
[7] (2008) 124 LQR 72, 79 – 94.
An early statement of the doctrine was given by Sir James Eyre, the Lord Chief Baron in Dyer v Dyer.[8] There, his Lordship held as follows –
The clear result of all the cases, without a single exception, is, that the trust of a legal estate, whether freehold, copy hold or leasehold; whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser; whether in one name or several; whether jointly or successive, results to the man who advances the purchase money.
[8] [1788] 30 ER 42.
The authors of Jacob’s Law of Trusts in Australia[9] have stated that the point of principle in Dyer v Dyer set out above has been adopted in the High Court of Australia in Napier v Public Trustee (WA).[10] In other decisions of the High Court, especially the observations of Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ in Charles Marshall Pty Ltd v Grimsley[11] as well as in Calverley v Green,[12] it has generally been accepted that the proposition set out above in Dyer v Dyer as encapsulated in Napier v Public Trustee (WA) is “so well entrenched that it can no longer be the subject of argument.”[13]
[9] The Honourable J. D. Heydon AC QC, The Honourable Justice M. J. Leeming, Jacobs’ Law of Trusts in Australia (2016) Australia: LexisNexis Butterworths.
[10] (1980) 55 ALJR 1, 3.
[11] (1956) 95 CLR 353, 364.
[12] (1984) 155 CLR 242.
[13] The Honourable J. D. Heydon AC QC, The Honourable Justice M. J. Leeming, Jacobs’ Law of Trusts in Australia (2016) Australia: LexisNexis Butterworths.
At one level, the diverse range of circumstances giving rise to a claim to a resulting trust may well explain why there is so little in the books on acceptable methods of pleading a resulting trust. That said, in Snell’s Equity[14] the following is said –
Evidence. A resulting trust may arise where B purchases real property of any description or personal property using money provided by A. A bears the burden of proving that he provided the money: Constandas v Lysandrou [2018] EWCA Civ 613.
[14] John McGhee QC et al, Snell’s Equity, 34th ed, 2020, paragraph 25 – 004.
Mr Glick brought his strike out application in reliance upon s 38(2) of the Family Law Act and r 27.09.5 of the Rules of the High Court of Australia. The application of the Family Law Rules was not apposite because the Family Law Rules, unlike rules of Supreme Courts across Australia and of the Federal Court Rules, are silent on pleadings and strike out applications. The High Court Rules are incorporated by operation of s 38(2) of the Family Law Act. It is in the following terms –
In so far as the provisions applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court.
Rule 27.09 of the High Court Rules is entitled “summary disposition.” Rule 27.09.5 is in the following terms –
Where a pleading:
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceedings; or
(d) is otherwise an abuse of the process of the Court;
the Court or a Justice may order the whole or part of the pleading be struck out or amended.
On behalf of the second respondent, Mr Glick QC relied on all of the sub-paragraphs of r 27.09.5. Mr Glick argued that, as against his client, the latest iteration of the statement of claim did not disclose a cause of action, it was scandalous, frivolous or vexatious, it may prejudice, embarrass or delay the fair trial of this proceeding or it was otherwise an abuse of the process of the court. The second respondent did not seek judgment – only an order striking out parts C and E of the statement of claim.
The latest version of the statement of claim
By reason of its length, the latest version of the statement of claim is annexed to these reasons.
By way of introduction, Mr Glick QC submitted that the first respondent had abandoned an earlier claim to the existence of a resulting trust in his favour. That was historically informative but not determinative in any way for the purposes of this application.
Mr Glick QC filed detailed written submissions on 30 April 2020 as well as on 27 August 2020. The submissions dated 30 April 2020 were considered by Dr Dinelli of counsel in formulating the latest version of the statement of claim dated 15 July 2020. The submissions dated 27 August 2020 provided the springboard for Mr Glick’s assault on the 15 July 2020 version of the statement of claim. Some indication of the second respondent’s approach was given by the opening paragraph of the 27 August 2020 submissions where Mr Glick QC wrote as follows –
The Wife’s Further Amended Statement of Claim filed 28 July 2020 (“FASOC”) represents her third attempt to manufacture some equitable proprietary claim over properties and the proceeds of the sale of properties registered in the name of the de facto Wife and her related entities (referred to in this submission as the de facto Wife). It is to be noted that the Wife now for the first time has added a constructive trust claim notwithstanding her earlier adamantine protestations that her claim was confined to a resulting trust over assets held in the name of the de facto Wife.
On this application Dr Dinelli requested me to consider his written submissions dated 12 May 2020, notwithstanding that those submissions were prepared in relation to an earlier version of the statement of claim. Many submissions put in those written submissions remained apposite, Dr Dinelli contended, on the hearing and determination of the strike out application with which I was concerned on 27 August 2020. Relevantly distilled, the matters canvassed in overview by Dr Dinelli in his 12 May 2020 submissions included the following –
a)the findings of Cronin J[15] that the applicant had no knowledge of the various property transactions between the first and second respondent highlights the difficulties faced by the applicant in offering the second respondent the particularity of which the second respondent complains;
b)Macmillan J[16] dismissed an earlier application to strike out the applicant’s statement of claim;
c)the amended statement of claim dated 25 July 2019 stated with sufficient clarity the case that must be met in accordance with principles adumbrated by the High Court in Banque Commerciale SA (en liq) v Akhil Holdings Pty Ltd;[17] and
d)the second respondent’s “discovery remains hopelessly deficient.”
[15]Chen & Chen [2018] FamCA 828.
[16]Chen & Chen [2017] FamCA 285.
[17](1990) 169 CLR 270.
It was not necessary to determine whether and if so to what extent deficiencies existed in the wife’s amended statement of claim because the applicant provided her further amended statement of claim on 15 July 2020 following an appearance on 21 May 2020. On that occasion Dr Dinelli forcefully submitted that the applicant’s financial circumstances were parlous and that the applicant continued to encounter obstacles in the advancement of her case by reason of deficiencies in disclosure by the very person who brought the strike out application, namely, the second respondent. In effect Dr Dinelli argued that it ill-behoved the second respondent to complain about deficiencies in the applicant’s pleadings when it was the second respondent’s defective disclosure that impeded the applicant from more exhaustively pleadings the applicant’s case. Not having heard a discovery fight in this litigation I am unable to say whether or not there is merit in Dr Dinelli’s contentions in that regard. Yet suffice it to say that between them, Mr Glick QC and Dr Dinelli have informed me more than once that discovery between their respective clients is an ongoing and intricate exercise. It need scarcely be noticed at this juncture that unlike any other provisions in rules of court across the Commonwealth of Australia, the Family Court Rules in Chapter 13 impose criminal sanctions for dereliction in disclosure, a matter I pointed out in Bacall & Zagar.[18]
[18][2020] FamCA 350.
It has been common cause between the applicant on the one hand and the first and second respondents on the other hand that a martial relationship existed as between the applicant and first respondent concurrently with a de facto relationship as between the first and second respondents. In Chen & Chen (No. 3)[19] Cronin J made a collections of observations about those concurrent relationships. His Honour made findings to the effect that the first and second respondent met in 1998 and soon thereafter formed an intimate relationship, adulterous as it happened, of which the applicant discovered in 2013 and about which the applicant was unaware in the period between 1998 and 2013, 15 years in all. For present purposes it is unnecessary to pass upon those findings of fact made by Cronin J, especially whether they bind me having regard to repeat observations by the Full Court warning that findings of fact on the hearing of interlocutory applications should only be made with “great circumspection.”[20]For the purposes of this application I am willing to proceed on the basis that the findings of fact made by Cronin J on the hearing of the interlocutory application pursuant to which his Honour set aside the binding financial agreement[21] were validly made. Whether at the trial of this proceeding the parties agitate otherwise remains to be seen.
[19] [2018] FamCA 828.
[20] Marvel v Marvel (2010) 43 Fam LR 348, SS & AH [2010] FamCAFC 13, Deiter & Deiter [2011] FamCAFC 82, Eaby & Speelman [2015] FamCAFC 104, Redmond & Redmond [2014] FamCAFC 155 and my own decision of Pollard & Nordberg [2019] FamCA 365.
[21]Chen & Chen [2018] FamCA 828.
Be that as it may, Cronin J found that over the life of their de facto relationship the first and second respondent were involved in the purchase of 14 parcels of real estate. His Honour held that the acquisition of those properties was in joint names, the second respondent’s name or in the name of the fourth respondent, the name of which his Honour abbreviated simply to “the [Quen] trust.” Cronin J further held that most of the money for the acquisition of those 14 separate parcels of real estate came from the seventh respondent, G Pty Ltd, which I shall call simply “G Pty Ltd.” In this litigation the application has consistently asserted that since 1990, the applicant and the first respondent operated a business first in Suburb X and later in Suburb P “through G Pty Ltd.” Of that contention I am willing to proceed on the basis that the applicant asserts in this case that she and her then husband incorporated G Pty Ltd, became its owners and controllers and through that incorporated entity conducted a business in the two locations mentioned.
At a very broad level of abstraction, it may fairly be said that in this litigation the applicant asserts an entitlement to the 14 properties referred to by Cronin J at paragraph 14 of his Honour’s reasons. The precise basis of that alleged entitlement is disputed, however.
Cronin J added the epithet (page 23) “nefarious” to the acquisition of those 14 properties.[22] His Honour also held that the first respondent’s major source of income was G Pty Ltd.
[22] That word appears in paragraphs 74 and 210 of his Honour’s reasons in Chen & Chen [2018] FamCA 828.
In the amended statement of claim, the applicant introduced a plea of the existence of a resulting trust. In written submissions dated 12 May 2020 in support of the criticism levelled by the second respondent about the newly-introduced plea in relation to a resulting trust, Dr Dinelli wrote as follows –
Ms Chen’s pleaded case at trial will be a simple one (albeit one overlaid with the complexity of the property transactions the exact extent of which she remains “in the dark”). Ms Chen’s case, as is pleaded, is that the money used for the purchase of the various properties during the de facto relationship between Mr Chen and Ms Quen was not funded by the registered proprietor of the relevant property now on title or on title at the time of sale. Instead, it was her money, and that of her husband, Mr Chen, and various other family businesses, that was used to fund the purchase of the properties.
Dr Dinelli made a contention that provoked this strike out application. The contention was –
It was her money, and that of her husband, Mr Chen and various other family businesses, that was used to fund the purchase of the properties.
Mr Glick QC has argued that the pleading in the further amended statement of claim that asserts the existence of a resulting trust must be struck out.
To better understand the complaints made about the latest version of the statement of claim it is necessary to go to the precise text of the document. Part B, incorporating paragraph 10 of the pleading occupied a large portion of Mr Glick’s attention. Paragraph 10(d) incorporated the defined term “Chen Family Enterprise.” Paragraph 10(c) incorporated the defined term “the Family Businesses.” When read fairly and plainly and relevantly paraphrased, paragraph 10 of the further amended statement of claim amounted to the following –
a)the applicant and first respondent married in Country WW in 1982 and emigrated to Melbourne in 1985;
b)from 1987 they conducted a another business in Suburb XX;
c)from July 1990 onwards through G Pty Ltd they conducted a business in two locations;
d)from 2007 they developed real property in partnership with their children; and
e)they received rental income.
Their business activity was collectively called “the Family Businesses.”
The same business activity was said in paragraph 10(d) to be “part of a joint venture arises from the matters set out in paragraphs 10(a) -10(ca) as well as from their living together as a family and operating the Family Businesses.” The activity in the sentence immediately preceding this one was said to constitute the “the Chen Family Enterprise.”
Pausing there, a reader who wanted to understand precisely what was connoted by the phrase in the pleading the “Chen Family Enterprise” would be left confused. That is a well-known consequence of a plea that embeds a collection of factual issues without dividing them into separate factual assertions.
Rules 27.02.1 and 27.02.2 of the High Court Rules require a pleading to be divided into consecutively numbered paragraphs with each allegation, so far as is practicable, to be contained in a separate paragraph. It is established beyond debate that only material facts should be stated in a pleading and statements of fact that are not necessary as they are not material are liable to be struck out.[23]
[23]Davy v Garrett (1878) 7 Ch. D. 473 and Smith v Musgrove (1885) 11 VLR 440.
Material facts are those which identify the elements of the cause of action or defence or cross claim as well as to the relief sought so that no risk exists that a defendant or respondent is caught by surprise.[24] Facts not material to the cause of action or defence are mere surplusage, as was held in Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd.[25] Facts that are not necessary and immaterial should be omitted, as was held long ago in Knowles v Roberts.[26] And even though pleadings are assertions, they represent the scope of the evidence to be adduce as was held in Laws v Australian Broadcasting Tribunal.[27]
[24]Millington v Loring (1880) 6 Q.B.D. 190 and Bruce v Odhams Press Ltd [1936] 1 K.B. 697.
[25][1971] 1 NSWLR 472.
[26](1888) 38 Ch D 263.
[27](1990) 170 CLR 70.
It has been said many times over the years that pleadings should be as brief as is consistent with clarity.[28] Further, as was held in General Steel Industries Inc v Commissioner for Railways (NSW),[29] a court is entitled to read against the party pleading any allegation which the party has expressed ambiguously.
[28]Davy v Garrett (1878) 7 Ch. D. 473.
[29](1964) 112 CLR 125.
In Re Wrightson; Wrightson v Cooke[30] it was held that at trial a plaintiff will not be permitted to prove any breach of trust not alleged. It must follow that an applicant will not be permitted to assert the existence of a resulting trust where the material facts necessary to show the existence of the resulting trust are not pleaded.
[30] [1908] 1 Ch. 789.
Complications arising from complex cases have previously vexed the courts. Those complications caused Harper J of the Supreme Court of Victoria in Liberty Financial Pty Ltd v Scott (No 3)[31] to state the following –
Those who draw pleadings in complicated cases have especial responsibilities. Where senior counsel are engaged, they must exercise the authority of their office to ensure that the litigation is kept within manageable bounds. Neither parties nor courts have unlimited resources. It is of equal importance that litigation not be used merely as a means of oppression; and all unnecessary oppressive steps should be eschewed. Clients who would have counsel act in ways that conflict with counsel’s duty to the court must be told that the latter duty is paramount. Such clients must also be told that instructions, obedience to which would result in a breach of that duty, do not bind and will not be followed.
[31][2005] VSC 363.
As is a well-practised pleading technique, single propositions of fact should be set out in a separately numbered paragraph of a pleading. If appropriate, a particular factual recital can become a defined expression or phrase but by making that factual issue separate and discrete, the defined term is referrable and readily understandable as being a reference to that single factual statement. Confusion in comprehension is created when, as here, a paragraph of a pleading is –
a)divided into several alphabetical subparagraphs;
b)one or more of those alphabetical subparagraphs is itself divided into several roman numerals by way of subparagraphs of that alphabetical subparagraph; and
c)defined terms appear within alphabetical subparagraphs.
Here, in clause 10, after alphabetical subparagraphs (a), (b) and (c), the defined term “the Family Businesses” appears preceded by the word “collectively.” It is not being unduly querulous or obfuscating to state that the reference to “collectively, the Family Business” in clause10 is to be taken to be a reference to each preceding alphabetical subparagraph including the plea of the parties’ marriage and their immigration. One can immediately imagine that was not intended.
Paragraph 10(ca) was new. It was also conjoined to the introductory phrase in paragraph 10 “The wife and the Husband.” The wife alleged in paragraph 10(ca) that she and the husband lived as a family whereby her contributions to Chen Family Enterprise “as defined in paragraph (d) below” included certain indirect contributions in the form of support of the husband and the children (as defined in paragraph 8 to mean the eighth, ninth and tenth respondents), homemaking and support. The applicant squarely put in issue that she contributed to the Chen Family Enterprise, defined to mean the “joint venture arising from the matters set out in paragraphs 10(a) – 10(ca) above as well as from their living together as a family with the children and operating the Family Businesses.”
That was confusing, to say the least. Nowhere in Dr Dinelli’s written submissions or in his verbal address did he contend that the alleged joint venture was of the character considered by the High Court in United Dominions Corporation Ltd v Brian Pty Ltd.[32] There, the plurality (Mason, Brennan and Deane JJ) held as follows –
The term “joint venture” is not a technical one with a settled common law meaning. As a matter of ordinary language, it connotes an association of persons for the purposes of a particular trading, commercial, mining or other financial undertaking or endeavour with a view to mutual profit, with each participant usually (but not necessarily) contributing money, property or skill. Such a joint venture (or, under Scots’ law, “adventure”) will often be a partnership. The term is, however, apposite to refer to a joint undertaking or activity carried out through a medium other than a partnership: such as a company, a trust, an agency or joint ownership. The borderline between what can properly be described as a “joint venture” and what should more properly be seen as no more than a simple contractual relationship may on occasion be blurred. Thus, where one party contributes only money or other property, it may sometimes be difficult to determine whether a relationship is a joint venture in which both parties are entitled to a share of profits or a simple contract of loan or a lease under which the interest or rent payable to the party providing the money or property is determined by reference to the profits made by the other. One would need a more confined and precise notion of what constitutes a “joint venture” than that which the term bears as a matter of ordinary language before it could be said by way of general proposition that the relationship between joint venturers is necessarily a fiduciary one: but cf. per Cardozo C.J., Meinhard v. Salmon.[33]
[32](1985) 157 CLR 1.
[33] (1928) 164 NE 545.
Dawson J held that the concept of joint venture was said to be the creation of American courts, well known in Scottish law and is regarded as a variety of association and partnership and the association is confined to a particular adventure, speculation, course of trade or voyage.
Returning to paragraph 10(d) of the further amended statement of claim, the wife asserted that she and the husband were part of a joint venture arising from the matters alleged in paragraph 10(a) to 10(ca) from their living together and from operating the Family Businesses. In other words, she alleged that a joint venture arose. She did not say what form that joint venture took nor what the nature of the venture was, its terms, scope or duration. In his 1995 book on joint ventures Mr G.M.D. Bean[34] wrote as follows –
The term ‘joint venture’ does not have a settled English common law meaning[35] although it is often used by judges throughout England and the Commonwealth. The imprecision may be due to the layman’s concept of a joint venture being very wide, that is combining together for a specific business or project. However, in the case law involving joint ventures the underlying theme is that there is a common interest in a project or transaction based upon a contact. This common interest involves the parties in co-operation and risk-sharing towards a joint goal, either a joint sharing of profits or a joint production of a product or facility.
…
A joint venture is characterized by its common goal or community of interest between the co-venturers[36] and its limited scope, usually relating to one particular project that is separate from the co-venturers’ other business interests.
[34] Gerard M. D. Bean, Fiduciary Obligations and Joint Ventures, The Collaborative Fiduciary Relationships (1995) Clarendon Press Oxford, p.4.
[35] United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1; Muschinski v Dodds (1985) 160 CLR 583; Commerce Commissions v Fletcher Challenge Ltd. [1989] 2 NZLR 554, 614 – 616.
[36] Cummings v Lewis (1993) 113 ALR 285, per Cooper J (Fed.Ct. of Aust.); Carboneau v Peterson, 95 P 2d 1043 (1939) (Washington S.C.).
The wife was thereby contending that a joint venture existed between the husband and her. She said that the joint venture so contended arose from –
a)their marriage;
b)their migration to Australia;
c)their operation of certain businesses;
d)their development of properties with and in the absence of their children;
e)their living with their children;
f)their collection of rental on investments and
g)their application of funds to various properties.
Aside from the involvement of their children in business matters, the events narrated immediately above are common incidents within most marriages. They scarcely create a “joint venture.”
To ascribe to those activities some commercial attribution or character thereby making it a “joint venture” enlivens the comments in United Dominions Corporation Ltd v Brian about the blurred definition in the term “joint venture.”
At all events, Mr Glick contended that none of the matters pleaded in paragraph 10 (a) to (d) laid a necessary factual step along the pleading path to properly pleading the existence of a resulting trust, whether in relation to any specific properties, the 19 properties to which Cronin J referred at paragraph 74 in his interim reasons, or otherwise.
That much was true. In paragraphs 10 (a) to (d), the wife alleged that the husband and the wife were involved in various businesses in the development of various specified properties and in the receipt of rental from various properties. An allegation of the existence of a resulting trust needed to go very much further than that.
The question then became whether the allegations in paragraph 10(e) improved the position. In my view they did not. That paragraph included general and non-specific assertions. In it the applicant asserted (incorporating the introductory words to paragraph 10) that the husband and wife applied the funds of the Chen Family Enterprise to various investments including “the properties,” as defined to mean the properties mentioned in paragraph 9. Those properties mentioned in paragraph 9 were the properties referred to in paragraphs 2 to 6. They were –
a)Y Property;
b)AA Property;
c)BB Property;
d)FF Property;
e)Z Property;
f)CC Property;
g)DD Property;
h)GG Property;
i)KK Property;
j)LL Property;
k)MM Property;
l)NN Property;
m)PP Property;
n)QQ Property;
o)RR Property;
p)SS Property;
q)TT Property;
r)VV Property; and
s)HH Property.
In respect of all of those properties, the applicant pleaded that she and the first respondent applied the funds of the Chen Family Enterprise towards “various investments, including the Properties.”
Mr Glick submitted that the phrase “funds of the Chen Family Enterprise” was nebulous because the Chen family Enterprise was not an incorporated entity and it was not a registered association. He said it was merely a name. Further, Mr Glick submitted the entities behind the appellation Chen Family Enterprise were none too easy to discern because that phrase could mean –
a)the husband and wife in their capacity as natural persons;
b)the husband and wife plus G Pty Ltd, or
c)the husband, the wife and their children with or without C Pty Ltd.
Further, as is evident from paragraphs 2 to 6 of the further amended statement of claim, various persons became the registered proprietors of the 19 different properties mentioned between paragraphs 2 to 6. The applicant is contending in paragraph 10(e) that “the funds of the Chen Family Enterprises” were applied to “various investments,” those investments “including the Properties.”
This case has been amended to now include a claim that certain properties are held by the second respondent on a resulting trust, the beneficiary of which is the applicant. The second respondent is entitled to know – dare I say an important component in the applicant’s proof is –
a)what funds, in precise terms, were used so as to give rise to the resulting trust claim; and
b)what specific properties are allegedly impressed with that resulting trust.
The applicant has failed to do either of those things.
It could be said that paragraph 10 is introductory in nature and that when read fairly as a component of the pleading in the overall, the respondents have done no more than to plead certain background information. To that Mr Glick QC submitted that if the purpose of paragraph 10 was no more than background, it did not represent a material fact required to be pleaded with the consequence that it had no place in the pleading.
In my view, no part of paragraph 10 is relevant to the claim to the existence of a resulting trust. Further in its current form paragraph 10 (ca) in its reference is “Chen Family Enterprise” as well as 10(d) and 10(e) are amenable to being struck out on the basis that the phrase “Chen Family Enterprise” is vague and embarrassing.
Before addressing any other paragraphs of the further amended statement of claim beyond paragraph 10, it is utile to address –
a)Mr Glick’s contention about paragraph 10; and
b)legal principles applicable to the resulting trust.
Turning first to the second respondent’s contention about paragraph 10, the matters set out immediately following are a relevant distillation. In no particular order, the second respondent argued –
a)whatever may be the proper construction of the phrase “Chen Family Enterprise” in the further amended statement of claim, nowhere does the applicant contend that the second respondent’s money was used to fund the various acquisitions of which the second respondent became registered proprietor;
b)as a result, the applicant does not plead that at law or in equity she has any entitlement to any of the assets of the Chen Family Enterprise, especially the 19 properties outlined in paragraphs 2-6;
c)the applicant’s claim, as pleaded, to a resulting or constructive trust proceeds on some basis that is unknown to the law in Australia;
d)the pleading about the Chen Family Enterprise takes the applicant nowhere as the phenomenon of that enterprise, it not being a separate legal entity, does not give rise to common law or equitable consequences; [37]
e)the phrase “funds of the family enterprise” carries with it no legal consequence;
f)no specific funds, whether in an identifiable bank account or otherwise has been identified by the applicant as constituting the funds of the Chen Family Enterprise; and
g)the pleading gives rise to principles applicable to tracing
[37] The applicant previously asserted that the phrase Chen Family Enterprise was no more than a “convenient nomenclature.”
For reasons already explained, in my view each of the contentions has merit.
Let me now turn to certain matters that are elemental to the doctrine of the resulting trust as they may apply in this case. The fact that this court is possessed of jurisdiction to hear and determine issues quintessentially equitable in nature cannot be gainsaid having regard to this court’s equitable jurisdiction conferred by s 21(2A) of the Family Law Act.
While by no means a classic formulation of principle, Professor Dal Pont [38] has written about the circumstances in which a resulting trust might arise. It is in the following terms –
A resulting trust can arise where title to property is transferred but the transferor is presumed not to intend to dispose of the beneficial interest, [39]in which case the property results back to the settlor. This may occur in two principal circumstances. [40] First, a presumption of resulting trust in favour of A may arise where A voluntarily transfers property into the name of N or in their names jointly, for which B gives no consideration (‘voluntary transfer situation”).
Secondly it may arise where A purchases property in the name of B, or in the name of A and B jointly (“purchase money situation”). This is because the law presumes that persons who transfer property for others for no consideration, or purchase property for others, do not intent to gift the property. As presumptions are merely aids to constructions – “these are not presumptions of law but mere evidentiary presumptions”[41] – the presumption of resulting trust may be displaced by evidence that no resulting trust was intended or by the law presuming that a gift was intended (the “presumption of advancement.”)
[38] Gino Dal Pont, Equity and Trusts in Australia (7th ed) 2020 Thomas Reuters [26.45].
[39] That does not mean that the transferor is presumed to transfer only the legal estate and not the equitable estate. Rather, equitable interests arising upon the transfer of a legal estate arise from the equitable obligation the transferor intended or is presumed to have intended the transferee to hold: DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW)[1980] 1 NSWLR 510 at 521 per Hope JA [varied by DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431 at 464 per Aikin J].
[40] Muschinski v Dodds (1985) 160 CLR 583 at 589-590. The reasons for this is that “[t]he role of resulting trust presumption is to undo gratuitous transfers of property, where no gift or alternative return is shown to have been intended”: John Glover, Re-Assessing the Uses of the Resulting Trust: Modern and Medical Themes (1999) 25 Monash Law Review 110 at 116-117.
[41] Sorna Pty Ltd v Flint (2000) 21 WAR 563 at 575 per Murray J (noting that to refer to the presumption of resulting trust “is to do no more than speak of a standardised inference which may be drawn from the evidence as to the manner in which the property was acquired”: at 574).
In Hancock Family Memorial Formulation Ltd v Porteous[42] it was held that a “purchase money resulting trust” will be presumed where a purchase of legal title to real property is vested in someone other than the person who is proved to have provided the purchase money. Proof of the provision of the purchase money is essential. Pleading the provision of the purchase money would therefore be a material fact in issue.
[42] (2000) 32 ASCR 124.
In the passages above I have already narrated the observations from Snell’s Equity that proof of the provision of the purchase money is required in a resulting trust claim.
While the High Court’s decision in Muschinski v Dodds[43] is commonly regarded as the modern locus classicus of the law relating to resulting trusts, the observations of Wilson J[44] in Bloch v Bloch[45] was embraced by the court in Muschinski v Dodds.[46] There, Wilson J with whom Gibbs CJ, Murphy, and Aickin JJ agreed, held as follows –
With respect, I do not think that his Honour's reasoning can be faulted in any way. The circumstances surrounding the acquisition of the flats do not yield with sufficient certainty the expression of an intention to create a trust. On the other hand, the facts present a classic illustration of the creation of a resulting trust. The property was conveyed into the name of the son, with the father having contributed part of the purchase price in circumstances which rebutted the presumption that the contribution was intended to advance or benefit the son. The contribution was not a gift. It was not a loan. The inference then arises that the father intended the son to hold the property in trust for him in a proportion corresponding to the proportion of the purchase price which was contributed by him.
[43] (1985) 160 CLR 583.
[44] No relation.
[45] (1981) 180 CLR 390.
[46] (1985) 160 CLR 583
The reasons of Deane J are usually cited for the ascertainment of a constructive trust. However, his Honour made observations about a resulting trust in the following terms –
“In these circumstances, there is no occasion for recourse to the presumption of the law of equity that, where two or more persons advance the purchase price of property in different shares, the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it; Calverley v Green (1984) 1555 CLR 242.
Naturally, proof of the advancement of funds is required and in my view, the establishment of that proof is such a critical component to the claim as is the existence of a resulting trust that it represents a material fact that must be pleaded.
Conclusions about paragraph 10
In my view there is considerable merit in Mr Glick’s contention about paragraph 10. With all due respect to Dr Direlli as its author –
a)paragraph 10 contains surplusage;
b)paragraph 10 fails to identify material facts about the claim to the existence of a resulting trust rests;
c)paragraph 10 contains assertions that are jumbled and do not admit of ease of comprehension;
d)paragraph 10 contains defined terms that are not properly described as merely convenient nomenclature and instead are assertions that require precision (such as “joint venture” and “enterprise”); and
e)paragraph 10 should be broken into separate numerical paragraph in which single propositions of fact are recorded, limited only to facts material to the establishment of the cause of action.
Paragraph 10 must be struck out.
Part C – paragraphs 11-14c
Part C on the further amended statement of claim is entitled “Equitable interests in the Properties or the proceeds of their sale.” Paragraph 11 commences with the Y Property defined in paragraph 1 to be the land known as and situated at Y Property in the State of Victoria being the whole of the land more particularly described in certificate of title volume … folio …. Also in paragraph 1 of the further amended statement of claim the applicant alleges that the first respondent was the registered proprietor of Y Property until he transferred his registered proprietorship in that land to the second respondent. In paragraph 2 of the further amended statement of claim the applicant alleges that the second respondent is the registered proprietor of Y Property and that she held that property “on trust on the terms herein alleged.”
Bearing in mind that the applicant alleged that the second respondent became registered as the proprietor of Y Property by transfer from the first respondent, in paragraph 13 of the further amended statement of claim the applicant alleges that the first respondent transferred his interests in that land to the second respondent on 24 June 2013 “for natural love and affection without payment of any valuable consideration.” Then in paragraph 14 the applicant alleges that the second respondent “holds”[47] Y Property in resulting trust for, at least, the wife, the husband and/or G Pty Ltd. Curiously, even though the wife is the sole applicant in this case, the plea in the paragraph 14 that the second respondent holds her interest in Y Property was to the effect that several persons were entitled to assert the existence of a resulting trust in their favour, namely “at least, the wife, the husband and/or G Pty Ltd.” Presumably that was by reason of the allegation in paragraph 12 that the money (called “contributions”) to purchase Y Property came from the first respondent or the Chen Family Enterprise, whomever that may be.
[47] I infer, holds “her interest as registered proprietor of.”
The particulars subjoined to paragraph 12 descended to some but very few details about the provision of funds by the first respondent for the purchase of the Y Property. The applicant alleges that the first respondent provided $176,000, although the allegation is much obfuscated because the precise terms of those particulars incorporates a reference to the husband “(with his own funds or those of the Chen Family Enterprise)”. As has already been canvassed above, the precise constitution of entities making up the Chen Family Enterprise is anything but plain. Nowhere does the applicant assert that an identified corpus of money that she owned was used to purchase Y Property. At best, the applicant seems to say that she worked in businesses colloquially described as the Chen Family Enterprise, she was entitled to earnings generated by those businesses, hard funds were paid into some bank account and that a portion of those funds were used to inject $176,000 towards the acquisition of Y Property. Nowhere does she say what the purchase price was for the acquisition of Y Property let alone how much of that purchase price came from the applicant. However, the applicant does say that the second respondent provided $18,000 of her own funds and that she gave that amount to the first respondent, although the applicant contended the provision of $18,000 will be an issue at trial. Presumably she made that contention because in paragraphs 2(a) and 2(aa) the applicant asserted that the second respondent at all relevant times was in receipt of social security benefits being otherwise without funds.
On behalf of the second respondent Mr Glick contended that in paragraph 12 the applicant advanced inconsistent propositions in a manner that was impermissible. He submitted that the applicant contended –
a)that the husband provided his own funds towards purchasing Y Property; and concurrently pleaded
b)the husband used funds of the Chen Family Enterprise as a contribution to the purchase price.
Aside from the vice of an inconsistent allegation of that nature, at least two consequences flowed, it seemed to me. First, the use of the applicant’s money was not pleaded and second, the source of the funds applied to the purchase as well as the amount thereof was not mentioned. In my view each of those matters were material facts that needed to be pleaded. Mr Glick submitted that the wife should not be permitted to advance the inconsistent allegations that are embedded in paragraph 12.
I agree.
Mr Glick developed an argument in relation to inconsistent pleadings. Before addressing the details of that argument let me first observe that a pleading that advances inconsistent factual propositions is permissible in certain circumstances. It is necessary for the pleader to make clear that the allegations are made in the alternative. Authority of very long standing makes that point including Re Smith; Rugg v Hughes,[48] Philipps v Philipps[49] and Re Morgan.[50] It is also necessary for the pleader to show on what specific facts each of the claims is made, especially the relief that is sought in alternative terms. That much emerges from the decision in Davy v Garrett.[51] The decision of the Full Court of the Federal Court of Australia (admittedly, of persuasive precedential value, in stricto sensu) in Issitch v Worrell[52] held that a party will not be permitted to set up two inconsistent sets of facts in the alternative when one set of facts or the other must be known by the pleader to be false. A similar view was taken in J.C. Decaux Pty Ltd v Adshel Street Furniture Pty Ltd.[53]
[48] (1884) 9 P 68.
[49] (1878) 4 QBD 127.
[50] (1887) 35 Ch D 492.
[51] (1878) 7 Ch D 473.
[52] (2000) 172 ALR 586.
[53] (2000) 178 ALR 339.
In Issitch the court questioned whether the rule stated immediately above was premised on the old requirement for sworn pleadings and held, citing UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd[54] as well as Ashmore v Corporation of Lloyd’s[55] that –
It is in accordance with modern practice in not permitting parties to litigate whatever issues they choose, only crucial issues.
[54] (1996) 21 ACSR 457.
[55] [1992] 1 WLR 446.
Several matters flow from the cases on inconsistent pleadings. They are as follows –
a)in this case the applicant does in fact make inconsistent pleadings;
b)she does so by asserting in the body of paragraph 12 that the contributions to purchase Y Property were provided by the husband;
c)alternatively, those contributions were provided pursuant to the Chen Family Enterprise (whomever that may mean);
d)then in the particulars subjoined to paragraph 12 those assertions are repeated;
e)the material facts underpinning those different contentions are not identified;
f)the applicant does not make it clear that those assertions are made in the alternative; and
g)the pleader does not show that different facts are relied upon to support different equitable relief.
Dr Dinelli submitted that paragraph 12 was in fact expressed as alternatives. He submitted as follows in his written submissions dated 12 May 2020 –
37.…If, at trial, Ms Chen fails to establish a resulting trust, she will contend, (again) as she is entitled to do, that, absent a finding that the properties are held on such trust, any of her funds that were paid over in respect of the properties were either paid over:
(a)on a basis that has failed – i.e. a total failure of consideration; or
(b)on a mistaken basis – i.e. the basis upon which it was paid over, being to obtain an interest in the relevant properties, was mistaken.
38.And, in any case, even if there be merit to this last contention, the application should be dismissed on the well-established basis identified by Kirby P in Wickstead v Browne.[56] That is, a court will not – and should not – prevent a party continuing with a cause of action, notwithstanding that it may have legal difficulties, where substantially the same facts would be adduced in evidence in respect of other causes of action. That is, striking out part of the claim is likely to be futile when other claims relying on the same sub-stratum of facts – namely the claims for resulting trusts and for the setting aside of various transactions – will, on the basis of the acceptance of the principles outlined above, proceed anyway. Put simply, there is nothing to be gained by the striking out of that part of the ASOC. And, so, if (contrary to these submissions) the Court were minded to strike out the claims for total failure of consideration or mistake, the principles explained in Wickstead militates against that course.
[56] (1992) 30 NSWLR 1.
Several things must be said of those submissions. First, while true that a pleaded cause of action should not be dismissed on account of difficulties associated with its pleading or proof, I have no intention of summarily dismissing the cause of action on which the applicant relies as to the existence of a resulting trust.
Second, it is one thing to assert the existence of a remedy, relevantly here, the imposition of a resulting trust. Yet it is an altogether different matter to require the party bringing the application for the remedy to set out material facts elemental to the existence of an entitlement to that remedy and to do so in accordance with recognised rules about proper pleadings. I accept that the applicant may be encountering trouble in formulating the pleading in relation to the resulting trust claim. She will need proof that her money was applied in the acquisition of the parcels of land in respect of which she asserts a resulting trust. If she is unable to prove that, she is at risk of failing on that component of her claim. But that is not to say that on the same facts she will or might suffer the same result on her other equitable and statutory claims. If the applicant presses a particular cause of action then she is required to plead it and to do so with all material facts. Thus far, paragraph 12 fails in that regard. Whether the applicant is able to improve on her present situation remains to be seen. I am willing to give the applicant an opportunity to re-plead paragraph 12.
Paragraph 13 contains the assertion that on 24 June 2013 the husband transferred his interest in Y Property to the second respondent for “natural love and affection” without payment of any valuable consideration. Presumably the words in quotation marks were inserted by reason of the fact that the instrument of transfer referred to in the particulars subjoined to paragraph 13 include those words. The difference between “good consideration” on the one hand and “valuable consideration” on the other was the subject of debate between Mr Glick for the second respondent and Dr Dinelli for the applicant.
The difference was explained by the High Court in Director of Public Prosecutions for the State of Victoria v Le.[57] It is utile to set out some of the more important observations made by Gummow and Hayne JJ. Those observations were made in the context of a consideration of the character given by the general law to a conveyance expressed to be made for a consideration being “natural love and affection”. Those are the words used in paragraph 13 of the further amended statement of claim. Their Honours held as follows –
36.The various senses in which the term “consideration” is used and the adjectives attached to it have been detailed and discussed in this Court in Roxborough v Rothmans of Pall Mall Australia Ltd[58] and Commissioner of State Revenue (NSW) v Dick Smith Electronics Holdings Pty Ltd.[59] The following may be added in elaboration of what was said in those cases and with particular reference to conveyancing law and practice.
[57] (2007) 232 CLR 562.
[58] (2001) 208 CLR 516, 556-557 (at [103]).
[59] (2005) 221 CLR 496, 504-506 (at [22]-[24]).
Their Honours pointed out that the expression “good consideration” when applied in conveyancing transactions was a reference to the “motive of natural affection towards relations” citing what their Honours described as the “classic conveyancing treatise”, Elphinstone’s Introduction to Conveyancing.[60] Their Honours pointed out that “good consideration” was to be contrasted with consideration of money or value and that “good consideration” had no validity against creditors or purchasers. The “motive” in reference to natural affection towards relations, stood in place of consideration and was said to be made on a “good consideration” as distinct from a consideration of money or value, citing the ageing textbook Leake.[61]
[60] Sir Howard W. Elphinstone, Elphinstone’s Introduction to Conveyancing (Sweet & Maxwell, 7th ed, 1918) p 81.
[61] Stephan Leake, An Elementary Digest of the Law of Property in Land (1874) p 10.
Their Honours then addressed the general principle embraced by the colloquialism “equity will not assist a volunteer”. Their Honours held as follows –
40.By way of qualification to the general principle that equity does not lend the assistance of its doctrines and remedies to voluntary undertakings, the presence of motive as "good consideration" has been treated as sufficient to deny the implication of what otherwise would be a resulting trust in favour of the disponor.
That learning must be put in context where the applicant pleads the existence of a resulting trust. In essence, the applicant asserts that the second respondent gave no valuable consideration for the transfer of real property into the name of the second respondent. The applicant asserts that the second respondent alleged that the second respondent provided $18,000 to the acquisition of the Y Property yet the applicant asserts that such an allegation was a fact in issue at trial. Yet in paragraph 13 the applicant squarely pleads that the second respondent received a transfer of the first respondent’s interest in Y Property without her paying any valuable consideration.
On behalf of the second respondent, Mr Glick highlighted the significance of the pleading that no consideration was given by the second respondent. He contended that by reason of that assertion, it was impossible for the second respondent to be fastened with the imposition of a resulting trust because he said the presumption of a resulting trust will not arise where the transfer of land is between persons in respect of whom there is only “good consideration”. In developing that contention, Mr Glick relied on the decision of the Supreme Court of Victoria in House v Caffyn,[62] the decision in Wirth v Wirth[63] and the decision in Xiao Hui Ying v Perpetual Trustees Victoria Ltd.[64] Taking the Court of Appeal’s decision, there, Beach and McLeish JJA and Dixon AJA held as follows –
33.It is well established that there is a difference between valuable consideration and good consideration, and that a transfer for natural love and affection is a transfer for good, rather than valuable, consideration.[65] There is no authority for the applicant’s submission that a transfer for natural love and affection is a transfer for valuable consideration. However, that is not determinative of whether or not a presumption of resulting trust arises upon such a transfer.
[62] [1922] VLR 67.
[63] (1956) 98 CLR 228.
[64] [2015] VSCA 124.
[65] Chief Commissioner of State Revenue (NSW) v Dick Smith Electronics Holdings Pty Ltd (2005) 221 CLR 496, 505 (at [24]), Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562, 575 (at [37]).
Other relevant observations must be mentioned. They include –
37.In House v Caffyn[66] the question was whether, in a transfer between two brothers for an expressed consideration of £950, a resulting trust arose in favour of the transferor by reason of the facts that the consideration expressed in the transfer was not paid, and that no other valuable consideration was given. Only Cussen J examined whether a presumption of resulting trust arose. He held that it did not, in the face of the expressed consideration. In the course of reaching that conclusion, he expressed the tentative view that a presumption of resulting trust arises upon a voluntary conveyance of land.[67] He defined ’voluntary’ as meaning that ‘there was no valuable or good consideration (money, money’s worth, marriage, or blood)’.[68] Because a brother came within the consideration of ‘blood’, Cussen J stated that there was ‘a good deal to be said’ for negativing the presumption of a resulting trust, ‘blood’ being a ‘good’ consideration.[69] However, he was inclined to think that this consideration could not be relied upon since a pecuniary consideration had been expressed. Instead, the expressed valuable consideration negatived a presumption of resulting trust in that case.[70]
38.House v Caffyn may therefore be taken to suggest that, although a voluntary transfer of land will ordinarily give rise to a presumption of resulting trust in favour of the transferor, a transfer of land between persons in respect of whom there is ‘good’ consideration will not attract such a presumption. It may be thought that Dixon CJ endorsed that understanding of the reasoning of Cussen J, in Wirth v Wirth.[71] Other authority can be taken as indicating that, in the case of a transfer between husband and wife, the presumption of advancement operates to displace a presumption of resulting trust.
[66] [1922] VLR 67.
[67] [1922] VLR 67, 79.
[68] [1922] VLR 67, 75-76.
[69] [1922] VLR 67, 79
[70] [1922] VLR 67, 79-80.
[71] (1956) 98 CLR 228, 236.
Here, it must follow that any presumption of the existence of a resulting trust in favour of the transferor where there is a voluntary transfer of land will not arise where there is no more than “good consideration”, that is, natural love and affection as is the case in this case.
Mr Glick submitted that the proposition contended for in paragraph 13 is contrary to Australian law. According to the Court of Appeal’s decision in Perpetual Trustees, he is correct. It seemed to me that the assertion in paragraph 13 required amendment on the basis that as a matter of law paragraph 13 cannot go forward in its current form as it is wrong. To vex a respondent with a pleading that is premised on an erroneous contention is unfair and should not be sanctioned. In my view paragraph 13 should be struck out with a right to re-plead it.
Paragraph 14 represents the applicant’s conclusion that by reason of the matters asserted in paragraph 12, the wife holds Y Property on a resulting trust “for at least, the wife, the husband and/or G Pty Ltd”.
Several things must be said of that paragraph. They are –
a)having regard to the conclusion expressed above about the deficiencies in paragraph 12, the asserted legal consequences flowing from paragraph 12 must also be defective; and
b)it is curious that the wife advances the cause of the husband and G Pty Ltd in contending that a resulting trust inures in their favour because if she is successful in her own contentions about the existence of a resulting trust, it can take effect independently of any claim thereto advanced by the first respondent or G Pty Ltd.
Notwithstanding the matters raised in the immediately preceding paragraph, in my view paragraph 14 is premised on the legitimacy of the assertions in paragraph 12 and as paragraph 12 has been struck out, it follow axiomatically that so too must paragraph 14 be struck out.
Paragraph 14A is new to the further amended statement of claim. Paragraph 14A, 14B and 14C have been introduced to plead the wife’s claim in this case that “it would be unconscionable for Ms Quen to deny that, at least, at least (sic), the wife, the husband, and/or G Pty Ltd have an equitable interest in Y Property.”
Thus, in those three paragraphs the applicant squarely put in contention her claims about the second respondent holding Y Property on a constructive trust. Mr Glick QC took issue with the assertion. He relied on the High Court’s decision in Tanwar Enterprises Pty Ltd v Cauchi[72] arguing that a constructive trust is not imposed on property merely because it appears to the court that it would be “unconscionable” not to impose a constructive trust.
[72] (2003) 217 CLR 315.
In debate, both Dr Dinelli and Mr Glick acknowledged that contemporary Australian jurisprudence in relation to unconscionable conduct has as its focus the observations of the High Court in Muschinski v Dodds.[73] It is necessary to develop the reasoning behind the imposition of a constructive trust and to understand how the remedy has been applied less liberally in recent years.
[73] (1985) 160 CLR 583.
On 6 December 1984 the High Court handed down its judgment in the landmark case of Muschinski v Dodds.[74]
[74] (1985) 160 CLR 583.
It is immediately critical to point up at once the whole court’s emphatic pronouncement that there is no place in Australian law for the imposition of a constructive trust whenever justice and good conscience require it. That is because proprietary rights fall to be determined by principles of law and not by some mixture of judicial discretion and subjective views about who should win or the formless void of individual moral opinion.
It is equally important to observe that the High Court considered certain English decisions yet it denounced others. Those it considered included Pettitt v Pettitt[75] and Gissing v Gissing.[76] Those it rejected included Eves v Eves[77] and Hussey v Palmer.[78]
[75] [1970] AC 777.
[76] [1971] AC 886.
[77] [1975] 1 WLR 1338.
[78] [1972] 1 WLR 1286.
Expressed most basically, the facts of the case may be shortly put. Ms Muschinski and Mr Dodds were unmarried and had lived together since 1972. In 1975 they decided to purchase a dilapidated sandstone cottage in Picton for restoration. Ms Muschinski planned to operate the cottage as an arts and craft centre and the two proposed to build a house on the property. Mr Dodds had no money to contribute to the project although he expected to receive $9,000 by way of divorce settlement. They applied for a bridging loan to finance the purchase and a housing loan for the construction of the dwelling. The bridging loan was approved. In the course of discussions about ownership of the land in December 1975, Dodds said he would have no part of the venture unless the property was put in both names. After obtaining legal advice they agreed to purchase as tenants-in-common. Muschinski paid a deposit pending receipt of Dodds’s divorce proceeding. They agreed that if that money was not available in time, they would obtain a bank loan that Dodds would pay off. Their settlement of the acquisition of the Picton property took place on 22 May 1976. Muschinski paid the whole price from the sale of a property she previously owned. The Picton property was conveyed to both as tenants-in-common. They were unable to obtain construction finance for the house. Dodds eventually received money from his divorce but it was only $3,500. In May 1980 the parties permanently separated.
Muschinski commenced a proceeding in the Supreme Court of New South Wales seeking declaratory relief to the effect that she was the beneficial owner of the property and that Dodds held his interest on trust for her. So far as the respective financial contributions were concerned, it was agreed that Muschinski put in over $25,000 to the purchase and improvements and that Dodds put in a little over $2,500. Muschinski argued at trial that she was entitled to the beneficial interest in the whole of the property. That were for two reasons, so she said. The first was that Dodds had not displaced the presumption of a resulting trust arising from her payment of the whole of the purchase price. The second was that any beneficial interest in the property which she intended to confer on Dodds was conditional upon his assuming financial responsibility for, and constructing, a dwelling on the land which he had not done.
The trial judge dismissed her claim as did the Court of Appeal but she succeeded in the High Court.
Each justice delivered separate reasons so it is necessary to examine each. Gibbs CJ, Mason and Deane JJ allowed the appeal whereas Brennan and Dawson JJ dismissed it.
Gibbs CJ addressed both the resulting trust as well as the constructive trust. As to the resulting trust, the Chief Justice relied on the observations of the court in Calverley v Green,[79] holding as follows –
For present purposes, it is sufficient to state them as follows. Where, on a purchase, a property is conveyed to two persons, whether as joint tenants or as tenants in common, and one of those persons has provided the whole of the purchase money, the property is presumed to be held in trust for that person, to whom I shall, for convenience, refer as “the real purchaser”. However a resulting trust will not arise if the relationship between the real purchaser and the other transferee is such as to raise a presumption that the transfer was intended as an advancement, or in other words a presumption that the transferee who had not contributed any of the purchase money was intended to take a beneficial interest
[79] (1984) 1555 CLR 242, 246
Gibbs CJ held that the Supreme Court had correctly found that the presumption of a resulting trust had been rebutted.
Gibbs CJ addressed Muschinski’s alternative argument in relation to the existence of a constructive trust. Gibbs CJ held that no trust arose. However, the Chief Justice held that upon the sale of the Picton property an equitable accounting between the parties needed to be undertaken which had not been undertaken so the Chief Justice said the case should be remitted for an equitable accounting.
Mason J agreed with Deane J. So far as the analysis of a constructive trust was concerned, Mason J held that Dodds’s and Muschinski’s common intention was that Dodds would have an immediate and unconditional interest in the property. However, his Honour held that it would be inequitable for him to retain his interest without accounting to Ms Muschinski for her contributions.
Brennan J rejected the suggestion that a constructive trust had arisen. Two passages of his Honour’s reasons bear highlighting. The first was this[80] –
There is no jurisdiction in an Australian court of equity to declare an owner of property to be a trustee of that property for another merely on the ground that, having regard to all the circumstances, it would be fair so to declare: Wirth v. Wirth;[81] Hepworth v. Hepworth;[82] Bloch v. Bloch.[83] The flexible remedy of the constructive trust is not so formless as to place proprietary rights in the discretionary disposition of a court acting according to vague notions of what is fair. When property is freely given, I know of no equitable principle which might restrict the donee’s proprietary interest in the gift beyond any restriction imposed expressly or impliedly by the donor.
[80] (1985) 160 CLR 583, 608
[81] (1956) 98 CLR 228, 232.
[82] (1963) 110 CLR 309, 318.
[83] (1981) 55 ALJR 701, 705.
In the circumstances, until its transfer on or about 8 September 2016, Ms Quen held FF Property on resulting trust for, at least, the Wife, the Husband and/or G Pty Ltd.
Particulars
The Wife refers to the particulars at paragraph 25 above.
The Husband (with his own funds or those of the Joint Endeavour) providedthe full deposit, completed all bank loan applications and paid all loanaccounts in respect of the property.
As far as the Wife is aware, no financial contribution was made to thepurchase by Ms Quen.
Further particulars of the proportions in which FF Property is held on trustby Ms Quen will be provided after discovery and/or on the return of documentspursuant to subpoenas issued in this proceeding.
On or about 8 September 2016, proceeds for the sale of FF Property were received by Ms Quen from a third party.
By reason of the matters at paragraph 27 above, the proceeds of the sale of FF Property are held on resulting trust by Ms Quen for, at least, the Wife, the Husband and/or G Pty Ltd.
Particulars
The Wife refers to the particulars to paragraph 27 above.
29A.Further or alternatively to paragraphs 25-29 above, in addition to the contributions to the purchase price set out at paragraph 25 above, the contributions to FF Property after its purchase were provided by the Husband and/or pursuant to the Chen Family Enterprise, by reason of the matters at paragraphs 2(a), 2(aa) and 10(e) above,
Particulars
The Husband (with his own funds or those of the Chen Family Enterprise) provided $205,200 towards the loan repayments and made other contributions to FF Property: see the Husband’s affidavit dated 17 June 2020, paragraphs 2(b) and 3(d).
Further particulars will be provided before trial.
29B.By reason of these contributions after purchase, it would be unconscionable for Ms Quen to deny that, at least, at least, the Wife, the Husband and/or G Pty Ltd have an equitable interest in the proceeds of sale of FF Property.
29C.In the circumstances, Ms Quen holds the proceeds of sale FF Property on constructive trust for, at least, the Wife, the Husband and/or G Pty Ltd.
Particulars
The Wife refers to the particulars to paragraph 29A above.
29D.Alternatively to paragraph 29C above, the Wife is entitled to equitable compensation in the amount of the value of the proceeds of that sale to the extent of her equitable interest.
GG Property
On or about 10 October 2011, the Husband became the registered proprietor of GG Property.
On or about 2 April 2014, the Husband transferred his interest in GG Property to Quen P/L for less than proper market value.
By reason of the matters at paragraph 4(c) and 10(e) above, the contributions to purchase GG Property, if any, were provided by the Husband and/or were funded by the
Joint EndeavourChen Family Enterprise.Particulars
The Husband (with his own funds or those of the
Joint EndeavourChen Family Enterprise) provided $360,000 of the purchase price, including, or in addition to the deposit, stamp duty and legal fees: see Husband’s affidavit filed 17 June 2020, paragraphs 2(a) and 3(i).the full deposit, completed allbank loan applications and paid all loan accounts in respect of the property.
As far as the Wife is aware, no financial contribution was made to the purchase by Ms Quen or Quen P/L. In her affidavit dated 18 June 2020, Ms Quen does not depose to contributing towards the purchase: see paragraph 4(i)
Further particulars will be provided before trial.
Further particulars of the contributions provided by the Husband and/orpursuant to the Joint Endeavour will be provided after discovery and/or onthe return of documents pursuant to subpoenas issued in this proceeding.
In the circumstances, Quen P/L holds GG Property on resulting trust for, at least, the Wife, the Husband and/or G Pty Ltd.
Particulars
The Wife refers to the particulars to paragraph 32 above.
Particulars of the proportions in which GG Property is held on trust byQuen P/L will be provided after discovery and/or on the return of documentspursuant to subpoenas issued in this proceeding.
33A.Further or alternatively to paragraphs 32-33 above, in addition to the contributions to the purchase price set out at paragraph 32 above, the contributions to GG Property after its purchase were provided by the Husband and/or pursuant to the Chen Family Enterprise, by reason of the matters at paragraphs 2(a), 2(aa) and 10(e) above,
Particulars
The Husband (with his own funds or those of the Chen Family Enterprise) provided $79,200 towards the loan repayments and made other contributions to GG Property: see the Husband’s affidavit dated 17 June 2020, paragraphs 2(b) and 3(i).
Further particulars will be provided before trial.
33B.By reason of these contributions after purchase, it would be unconscionable for Ms Quen to deny that, at least, at least, the Wife, the Husband and/or G Pty Ltd have an equitable interest in GG Property.
33C.In the circumstances, Quen P/L holds GG Property on constructive trust for, at least, the Wife, the Husband and/or G Pty Ltd.
Particulars
The Wife refers to the particulars to paragraph 33A above.
KK Property
On or about 23 July 2007, Quen P/L became the registered proprietor of KK Property.
By reason of the matters at paragraph 4(c) and 10(e) above, the contributions to purchase KK Property were provided by the Husband and/or were funded by the
Joint EndeavourChen Family Enterprise.Particulars
The Husband (with his own funds or those of the
Joint EndeavourChen Family Enterprise) provided $76,000 of the purchase price, including, or in addition to, the deposit, stamp duty and legal fees: see the Husband’s affidavit dated 17 June 2020, paragraphs 2(a) and 3(j).the full deposit,completed all bank loan applications and paid all loan accounts in respect ofthe property.
As far as the Wife is aware, no financial contribution was made to the purchase by Ms Quen or Quen P/L. In her affidavit filed 18 June 2020 Ms Quen does not depose to contributing towards the purchase of KK Property: see paragraph 4(j).
Further particulars will be provided before trial.
Further particulars of the contributions provided by the Husband and/orpursuant to the Joint Endeavour will be provided after discovery and/or onthe return of documents pursuant to subpoenas issued in this proceeding.
In the circumstances, Quen P/L holds KK Property on resulting trust for, at least, the Wife, the Husband and/or G Pty Ltd.
Particulars
The Wife refers to the particulars to paragraph 35 above.
Particulars of the proportions in which KK Property is held on trust byQuen P/L will be provided after discovery and/or on the return of documentspursuant to subpoenas issued in this proceeding.
36A.Further or alternatively to paragraphs 35-36 above, in addition to the contributions to the purchase price set out at paragraph 35 above, the contributions to KK Property after its purchase were provided by the Husband and/or pursuant to the Chen Family Enterprise, by reason of the matters at paragraphs 2(a), 2(aa) and 10(e) above,
Particulars
The Husband (with his own funds or those of the Chen Family Enterprise) provided $76,500 towards the loan repayments and made other contributions to KK Property: see the Husband’s affidavit dated 17 June 2020, paragraphs 2(b) and 3(j).
Further particulars will be provided before trial.
36B.By reason of these contributions after purchase, it would be unconscionable for Ms Quen to deny that, at least, at least, the Wife, the Husband and/or G Pty Ltd have an equitable interest in KK Property.
36C.In the circumstances, Quen P/L holds KK Property on constructive trust for, at least, the Wife, the Husband and/or G Pty Ltd.
Particulars
The Wife refers to the particulars to paragraph 36A above.
LL Propertyt
On or about 16 June 2008, Quen P/L became the registered proprietor of the LL Property.
By reason of the matters at paragraph 4(c) and 10(e) above, the contributions to purchase LL Property were provided by the Husband and/or were funded by the
Joint EndeavourChen Family Enterprise.Particulars
The Husband (with his own funds or those of the
Joint EndeavourChen Family Enterprise) provided $125,000 of the purchase price, including, or in addition to, the deposit, stamp duty and legal fees: see the Husband’s affidavit dated 17 June 2020, paragraphs 2(a) and 3(h).the full deposit,completed all bank loan applications and paid all loan accounts in respect ofthe property.
As far as the Wife is aware, no financial contribution was made to the purchase by Ms Quen or Quen P/L. In her affidavit dated 18 June 2020, Ms Quen does not depose to contributing towards the purchase of LL Property: see Ms Quen’s affidavit dated 18 June 2020, paragraph 4(h).
Further particulars will be provided before trial.
Further particulars of the contributions provided by the Husband and/orfunded by the Joint Endeavour will be provided after discovery and/or on thereturn of documents pursuant to subpoenas issued in this proceeding.
In the circumstances, Quen P/L holds LL Property on resulting trust for, at least, the Wife, the Husband and/or G Pty Ltd.
Particulars
The Wife refers to the particulars to paragraph 38 above.
Particulars of the proportions in which LL Property is held on trust byQuen P/L will be provided after discovery and/or on the return of documentspursuant to subpoenas issued in this proceeding.
39A.Further or alternatively to paragraphs 38-39 above, in addition to the contributions to the purchase price set out at paragraph 38 above, the contributions to LL Property after its purchase were provided by the Husband and/or pursuant to the Chen Family Enterprise, by reason of the matters at paragraphs 2(a), 2(aa) and 10(e) above,
Particulars
The Husband (with his own funds or those of the Chen Family Enterprise) provided $79,800 towards the loan repayments and made other contributions
to LL Property: see the Husband’s affidavit dated 17 June 2020, paragraphs 2(b) and 3(h).
Further particulars will be provided before trial.
39B.By reason of these contributions after purchase, it would be unconscionable for Ms Quen to deny that, at least, at least, the Wife, the Husband and/or G Pty Ltd have an equitable interest in LL Property.
39C.In the circumstances, Quen P/L holds LL Property on constructive trust for, at least, the Wife, the Husband and/or G Pty Ltd.but
Particulars
The Wife refers to the particulars to paragraph 39A above.
The ZZ Street Properties
On or about 26 October 2007, Quen P/L became the registered proprietor of the properties which now constitute the ZZ Street Properties.
By reason of the matters at paragraphs 2(a), 2(aa) and 10(e), the contributions to purchase the properties which now constitute the ZZ Street Properties were provided by the Husband and/or were funded by the
Joint EndeavourChen Family Enterprise.Particulars
The Husband (with his own funds or those of the
Joint EndeavourChen Family Enterprise) provided $639.000 to the purchase price of 2 ZZ Street and $426,000 to the purchase of 4 ZZ Street, including, or in addition to, the deposit, stamp duty and legal fees: see the Husband’s affidavit filed 17 June 2020, paragraphs 2(a) and 3(k).the full deposit,completed all bank loan applications and paid all loan accounts in respect ofthe property.
As far as the Wife is aware, no financial contribution was made to the purchase by Ms Quen and/or Quen/Pty. In her affidavit filed 18 June 2020 Ms Quen does not depose to contributing towards the purchase of the ZZ Street Properties: see Ms Quen’s affidavit filed 18 June 2020, paragraph 4(k).
Further particulars will be provided before trial.
Further particulars of the contributions provided by the Husband and/orfunded by the Joint Endeavour will be provided after discovery and/or on thereturn of documents pursuant to subpoenas issued in this proceeding.
On 20 August 2012, a subdivision was registered, the effect of which was that Quen P/L became the registered proprietor of each of the ZZ Street Properties.
[deleted]
In the period from May 2016 to December 2016, Units 1 to 4, 6 and 7 were sold to third parties. Unit 5 was sold on 1 May 2017.
By reason of the matters at paragraph 41 above, the proceeds of the sale of Units 1 to 7 are held on resulting trust by Quen P/L for, at least, the Wife, the Husband and/or G Pty Ltd.
Particulars
The Wife refers to the particulars to paragraph 41 above.
45A.Further or alternatively to paragraphs 41-45 above, in addition to the contributions to the purchase price set out at paragraph 41 above, the contributions to ZZ Street Properties after its purchase were provided by the Husband and/or pursuant to the Chen Family Enterprise, by reason of the matters at paragraphs 2(a), 2(aa) and 10(e) above,
Particulars
The Husband (with his own funds or those of the Chen Family Enterprise) provided $278,400 towards the loan repayments and $285,000 in construction costs and made other contributions to the ZZ Street Properties: see the Husband’s affidavit dated 17 June 2020, paragraphs 2(b) and 3(k).
Further particulars will be provided before trial.
45B.By reason of these contributions after purchase, it would be unconscionable for Ms Quen to deny that, at least, at least, the Wife, the Husband and/or G Pty Ltd have an equitable interest in the proceeds of sale of the ZZ Street Properties.
45C.In the circumstances, Ms Quen holds the proceeds of sale of the ZZ Street Properties on constructive trust for, at least, the Wife, the Husband and/or G Pty Ltd.
Particulars
The Wife refers to the particulars to paragraph 45A above.
45D.Alternatively to paragraph 45C above, the Wife is entitled to equitable compensation in the amount of the value of the proceeds of those sales to the extent of her equitable interest.
The Factory
On or about 25 January 1999, G Pty Ltd became the registered proprietor of the Factory.
On or about 30 July 2015, G Pty Ltd transferred its interest in the Factory to E Pty Ltd.
By reason of the matters at paragraph 5(c) and 10(e) above, the contributions to purchase the Factory, if any, were provided by the Husband and/or were funded by the
Joint EndeavourChen Family Enterprise.Particulars
The Husband (with his own funds or those of the
Joint EndeavourChen Family Enterprise) provided $170,000 of the purchase price, including, or in addition to, the deposit, stamp duty and legal fees: see the Husband’s affidavit dated 17 June 2020, paragraphs 2(a) and 3(r).the full deposit,completed all bank loan applications and paid all loan accounts in respect ofthe property.
As far as the Wife is aware, no financial contribution was made to the purchase by Ms Quen or E Pty Ltd. In her affidavit filed 18 June 2020 Ms Quen does not depose to contributing towards the purchase of the Factory: see Ms Quen’s affidavit filed 18 June 2020, paragraph 4(r).
Further particulars will be provided before trial.
Further particulars of the contributions provided by the Husband and/orfunded by the Joint Endeavour will be provided after discovery and/or on thereturn of documents pursuant to subpoenas issued in this proceeding.
In the circumstances, E Pty Ltd holds the Factory on resulting trust for, at least, the Wife, the Husband and/or G Pty Ltd.
Particulars
The wife refers to the particulars to paragraph 48 above.
Particulars of the proportions in which the Factory is held on trust by E Pty Ltdwill be provided after discovery and/or on the return of documents pursuantto subpoenas issued in this proceeding.
49A.Further or alternatively to paragraphs 48-49 above, in addition to the contributions to the purchase price set out at paragraph 48 above, the contributions to the Factory after its purchase were provided by the Husband and/or pursuant to the Chen Family Enterprise, by reason of the matters at paragraphs 2(a), 2(aa) and 10(e) above,
Particulars
The Husband (with his own funds or those of the Chen Family Enterprise) cannot recall the amount he contributed towards the loan repayments of the Factory: see the Husband’s affidavit dated 17 June 2020, paragraphs 2(b) and 3(s).
49B.By reason of these contributions after purchase, it would be unconscionable for Ms Quen to deny that, at least, at least, the Wife, the Husband and/or G Pty Ltd have an equitable interest in the Factory.
49C.In the circumstances, E Pty Ltd holds the Factory on constructive trust for, at least, the Wife, the Husband and/or G Pty Ltd.
Particulars
The Wife refers to the particulars to paragraph 49A above.
HH Property
On or about 8 February 2008, F Company became the registered proprietor of HH Property.
By reason of the matters at paragraph 4(c) and 10(e) above, the contributions to purchase HH Property were provided by the Husband and/or were funded by the
Joint EndeavourChen Family Enterprise.Particulars
Particulars of the contributions provided by the Husband and/or funded by the
Joint EndeavourChen Family Enterprise the deposit, stamp duty and legal fees, but otherwise has no records: see the Husband’s affidavit dated 17 June 2020, paragraph 2(a) and 2(s).will be provided after discovery and/or on thereturn of documents pursuant to subpoenas issued in this proceeding.
Ms Quen says that she paid no more than $320,832 of the purchase price of HH Property: see Ms Quen’s affidavit dated 18 June 2020, paragraph 4(s). This will be in issue at trial.
Further particulars will be provided before trial.
In the circumstances, F Company holds HH Property on resulting trust for, at least, the Wife, the Husband and/or G Pty Ltd.
Particulars
The Wife refers to the particulars to paragraph 51 above.
The Husband (with his own funds or those of the Joint Endeavour) providedthe full deposit, completed all bank loan applications and paid all loanaccounts in respect of the property.
As far as the Wife is aware, no financial contribution was made to thepurchase by Ms Quen or Quen P/L.
Further particulars of the proportions in which HH Property is held ontrust by Quen P/L will be provided after discovery and/or on the return ofdocuments pursuant to subpoenas issued in this proceeding.
52A.Further or alternatively to paragraphs 51-52 above, in addition to the contributions to the purchase price set out at paragraph 51 above, the contributions to HH Property after its purchase were provided by the Husband and/or pursuant to the Chen Family Enterprise, by reason of the matters at paragraphs 2(a), 2(aa) and 10(e) above,
Particulars
The Husband (with his own funds or those of the Chen Family Enterprise) contributed towards the loan repayments and made other contributions to HH Property but has no records: see the Husband’s affidavit dated 17 June 2020, paragraphs 2(b) and 3(s).
Further particulars will be provided before trial.
52B.By reason of these contributions after purchase, it would be unconscionable for Ms Quen to deny that, at least, at least, the Wife, the Husband and/or G Pty Ltd have an equitable interest in HH Property.
52C.In the circumstances, F Company holds HH Property on constructive trust for, at least, the Wife, the Husband and/or G Pty Ltd.
Particulars
The Wife refers to the particulars to paragraph 52A above.
D.Setting aside any gifts to Ms Quen, Quen P/L, E Pty Ltd and/or F Company
If, contrary to the above:
(a)the contributions made to the purchase price of any, or all, of the Properties by the Husband, the Wife and/or G Pty Ltd are characterised, as a matter of law, as a gift to Ms Quen, Quen P/L, E Pty Ltd and/or F Company (as the case may be); and/or
(b)the transfer of the legal title to any, or all, of the Properties by the Husband and/or G Pty Ltd to Ms Quen and/or E Pty Ltd (as the case may be) are characterised, as a matter of law, as a gift to those persons,
(collectively, the Alleged Gifts) – any allegation of which is expressly denied – the Alleged Gifts were made to defeat an anticipated order in this proceeding or is likely to defeat any such order.
Particulars
At the time of the Alleged Gifts, the Husband and Ms Quen were both aware that:
(a)the Husband and the Wife were married;
(b)the Wife did not know, and thus did not consent, to any of the Alleged Gifts; and
(c)the Alleged Gifts involved the provision of funds and/or property and/or beneficial entitlements to such property, that had been the subject of the
Joint EndeavourChen Family Enterprise.
The Wife also refers to the BFA Judgment at, esp, [1], [210].
In the circumstances described in paragraph 53 above, the Alleged Gifts are to be set aside pursuant to s 106B(1) of the Family Law Act 1975 (Cth) (the Act).
Once the Alleged Gifts are set aside:
(a)the funds the subject of the Alleged Gifts ought be re-paid; and/or
(b)in the case of:
(i) Y Property:
(A)the transfer from the Husband to Ms Quen set out at paragraph 13 ought be set aside; and
(B)it ought be held on trust by the Husband and Ms Quen for, at least, the Wife, the Husband himself and/or G Pty Ltd; and
(ii) GG Property:
(A)the transfer from the Husband to Quen P/L set out at paragraph 31 above be set aside; and
(B)it ought be held on trust by the Husband for, at least, the Wife, the Husband himself and/or G Pty Ltd.
Particulars
As to paragraphs 55(b)(i)(B) and 55(b)(ii)(B), particulars of the proportions in which Y Property is held on trust by Ms Quen will be provided after discovery and/or on the return of documents pursuant to subpoenas issued in this proceeding.
Further to paragraphs 55(b)(A) and 55(b)(ii)(A), pursuant to s 80(1)(d) of the Act, Ms Quen and Quen P/L, respectively, execute any necessary instruments and that such documents be presented to the Registrar of Titles to enable the transaction to be set aside.
E.The Wife’s interest in G Pty Ltd
At all relevant times before 21 February 2012, the Husband held 7,500 shares of 10,000 shares in G Pty Ltd.
On or about 21 February 2012, the Husband transferred 2,600 shares in G Pty Ltd to Ms Quen.
On or about 15 January 2014, the Husband transferred 4,900 shares in G Pty Ltd to Ms Quen (collectively, with the shares the subject of paragraph 57, the G Pty Ltd Shares).
By reason of the matters at paragraphs 2(a), 2(aa) and 10(e) above:
(a)the contributions, if any, to purchase the G Pty Ltd Shares were provided by the Husband and/or pursuant to the
Joint EndeavourChen Family Enterprise; and/or
(b)the Husband received no valuable consideration for that purchase.
Particulars
Particulars of the contributions provided by the Husband and/or funded by the
Joint EndeavourChen Family Enterprise will be provided after discovery and/or on the return of documents pursuant to subpoenas issued in this proceeding.
In the circumstances, Ms Quen holds the G Pty Ltd Shares on resulting trust for the Wife and the Husband.
Alternatively to paragraphs 60 and 61 above, the transfers at paragraph 58 and 59 above were made to defeat an anticipated order in this proceeding or is likely to defeat any such order.
Particulars
At the time of the transfers, the Husband and Ms Quen were both aware that:
(a)the Husband and the Wife were married;
(b)the Wife did not know, and thus did not consent, to any of the transfers; and
(c)the transfers involved the provision valuable shares that had been the subject of the
Joint EndeavourChen Family Enterprise.
The Wife also refers to the BFA Judgment at, esp, [1], [210].
In the circumstances described in paragraph 62 above, the Alleged Gifts are to be set aside pursuant to s 106B(1) of the Act.
Further to paragraph 63, pursuant to s 80(1) of the Act, Ms Quen and G Pty Ltd execute any necessary instruments and that such documents be presented to the Australian Securities and Investments Commission to enable the true owner of the G Pty Ltd Shares to be reflected on the register of that company.
F. Setting aside the Heads of Agreement
On or about 15 January 2014, Ms Quen, the Husband and G Pty Ltd purported to enter into a document entitled “Heads of Agreement” (the Heads of Agreement).
The Heads of Agreement had, or have, any legal effect, the Heads of Agreement were made to defeat an anticipated order in this proceeding or are likely to defeat any such order.
Particulars
At the time of the Heads of Agreement, the Husband and Ms Quen were both aware that:
(a)the Husband and the Wife were married;
(b)the Wife did not know, and thus did not consent, to any of the terms of the Heads of Agreement; and
(c)the Heads of Agreement involved purported dealings in respect of funds and/or property and/or beneficial entitlements to such property, that had been the subject of the
Joint EndeavourChen Family Enterprise.
The Wife also refers to the BFA Judgment at, esp, [1], [210].
In the circumstances described in paragraph 6 above, the Heads of Agreement ought be set aside pursuant to s 106B(1) of the Act.
G.Setting aside the Deed of Settlement
On or about 14 August 2015, Ms Quen, the Husband, the Children, C Pty Ltd and Quen P/L purported to enter into a deed of settlement (the Deed of Settlement).
The Deed of Settlement was made to defeat an anticipated order in this proceeding or is likely to defeat any such order.
Particulars
At the time of the Deed of Settlement, the Husband and Ms Quen were both aware that:
(a)the Husband and the Wife were married;
(b)the Wife did not know, and thus did not consent, to any of the terms of the Deed of Settlement; and
(c)the Deed of Settlement involved purported dealings in respect of funds and/or property that had been the subject of the
Joint EndeavourChen Family Enterprise.
The Wife also refers to the BFA Judgment at, esp, [1], [210].
In the circumstances described in paragraph 69 above, the Deed of Settlement ought be set aside pursuant to s 106B(1) of the Act.
H.Setting aside the Binding Financial Agreement
[Paragraphs 71-74 have been deleted, having been resolved by the BFA Judgment]
I. Total failure of consideration and/or mistake
Alternatively to Part C above, the funds of the Wife, the Husband and/or G Pty Ltd have been expended in consideration of receiving of a beneficial interest in the Properties (the Contributions).
Particulars
The Husband (with his own funds or those of the
Joint EndeavourChen Family Enterprise) provided the payments set out the particulars sub-joined to the paragraphs in Part C abovefull deposit, completed all bank loanapplications and paid all loan accounts in respect of the property.
Ms Quen only says she made the payments set out the particulars sub-joined to the paragraphs in Part C above. Those matters will be in issue at trial.
As far as the Wife is aware, no financial contribution was made to thepurchase by Ms Quen.
Further particulars will be provided prior to trial.
Further particulars of the Contributions provided by the Husband and/or pursuant to the
Joint EndeavourChen Family Enterprise will be provided after discovery and/or on the return of documents pursuant to subpoenas issued in this proceeding.
If (which is denied) the Wife, the Husband and/or G Pty Ltd do not have a beneficial interest in the Properties, or the proceeds of the Properties, the consideration for the Contributions to the Properties has totally failed and/or the consideration was paid by mistake.
Ms Quen, Quen P/L, E Pty Ltd and F Company have not reimbursed, or otherwise paid, the Wife, the Husband and/or G Pty Ltd for the Contributions.
Given paragraphs 75-77, Ms Quen, Quen P/L, E and F Company has been unjustly enriched to the extent of the value of the Contributions provided by the Wife, the Husband and/or G Pty Ltd.
In the circumstances, Ms Quen, Quen P/L, E Pty Ltd and F Company (as the case may be) hold each of the Properties on trust for, at least, the Wife, the Husband and/or G Pty Ltd in accordance with the Contributions so made.ParticularsThe Wife refers to the particulars to paragraph75above.
Alternatively,In the circumstances, Ms Quen, Quen P/L, E Pty Ltd and F Company (as the case may be) must make restitution to the Wife, the Husband and/or G Pty Ltd for the Contributions.Particulars
The Wife refers to the particulars to paragraph 75 above.
AND THE APPLICANT (THE WIFE) CLAIMS AGAINST THE SECOND RESPONDENT (MS QUEN):
A.A declaration that Ms Quen holds:
a.Y Property;
b.AA Property;
c.[deleted]
d.BB Property;
e.the proceeds of the sale of FF Property, Z Property, CC Property and DD Property; and
f.7,500 shares in G Pty Ltd,
on trust for, at least, the Wife, the Husband and/or G Pty Ltd in proportions to be determined by this Honourable Court.
B.Alternatively to paragraph (A) above, the contributions made to the purchase price of any, or all, of the properties the subject of paragraph (A) above by the Husband, the Wife and/or G Pty Ltd are characterised, as a matter of law, as a gift to Ms Quen be set aside pursuant to s 106B of the Act.
C.Further to paragraph (B), Ms Quen repay the amounts the subject of paragraph (B) to the Husband, the Wife and/or G Pty Ltd.
D.Further or alternatively to paragraphs (A)-(C) above, if the transfer of the legal title to Y Property and of the title to the 7,500 shares by the Husband to Ms Quen be characterised as a gift to Ms Quen, then such gifts be set aside pursuant to s 106B of the Act.
E.Further to paragraph (D), pursuant to s 80(1)(d) of the Act, Ms Quen execute any necessary instruments and that such documents be presented to the Registrar of Titles or the Australian Securities and Investments Commission to enable the transactions the subject of paragraph (D) above to be set aside.
F.Further or alternatively, equitable, compensatory and/or restitutionary damages.
G.Interest.
H.Costs.
Such further relief as the Court sees fit.
AND THE APPLICANT (THE WIFE) CLAIMS AGAINST THE FOURTH RESPONDENT (QUEN P/L):
A.A declaration that Quen P/L holds:
(a)GG Property;
(b)KK Property;
(c)LL Property;
(d)RR Property;
(e)the proceeds of the sale of MM,NN,PP,QQ,SS and TT Properties
on trust for, at least, the Wife, the Husband and/or G Pty Ltd in proportions to be determined by this Honourable Court.
B.Alternatively to paragraph (A) above, if the contributions made to the purchase price of any, or all, of the properties the subject of paragraph (A) above by the Husband, the Wife and/or G Pty Ltd are characterised as a gift to Quen P/L, then such gifts be set aside pursuant to s 106B of the Act.
C.Further to paragraph (B), Quen P/L repay the amounts the subject of paragraph (B) to the Husband, the Wife and/or G Pty Ltd.
D.Further or alternatively to paragraphs (A)-(C) above, if the transfer of the legal title to GG Property by the Husband to Quen P/L be characterised as a gift to Quen P/L, then such gifts be set aside pursuant to s 106B of the Act.
E.Further to paragraph (D), pursuant to s 80(1)(d) of the Act, Quen P/L execute any necessary instruments and that such documents be presented to the Registrar of Titles to enable the transaction the subject of paragraph (D) above to be set aside.
F.Further or alternatively, equitable, compensatory and/or restitutionary damages.
G.Interest.
H.Costs.
Such further relief as the Court sees fit.
AND THE APPLICANT (THE WIFE) CLAIMS AGAINST THE FIFTH RESPONDENT (E PTY LTD):
A.A declaration that Quen P/L holds the Factory on trust for, at least, the Wife, the Husband and G Pty Ltd in proportions to be determined by this Honourable Court.
B.Alternatively to paragraph (A) above, if the contributions made to the purchase price of the Factory by the Husband, the Wife and/or G Pty Ltd are characterised as a gift to E Pty Ltd, such gifts be set aside pursuant to s 106B of the Act.
C.Further to paragraph (B), E Pty Ltd repay the amounts the subject of paragraph (B) to the Husband, the Wife and/or G Pty Ltd.
D.Further or alternatively, compensatory and/or restitutionary damages.
E.Interest.
F.Costs.
G.Such further relief as the Court sees fit.
AND THE APPLICANT (THE WIFE) CLAIMS AGAINST THE SIXTH RESPONDENT (F COMPANY):
A.A declaration that F Company holds HH Property on trust for, at least, the Wife, the Husband and G Pty Ltd in proportions to be determined by this Honourable Court.
B.Alternatively to paragraph (A) above, if the contributions made to the purchase price of VV Property by the Husband, the Wife and/or G Pty Ltd are
characterised as a gift to F Company, such gifts be set aside pursuant to s 106B of the Act.
C.Further to paragraph (B), F Company repay the amounts the subject of paragraph (A) to the Husband, the Wife and/or G Pty Ltd.
D.Further or alternatively, equitable, compensatory and/or restitutionary damages.
E.Interest.
F.Costs.
G.Such further relief as the Court sees fit.
AND THE APPLICANT (THE WIFE) CLAIMS AGAINST THE SEVENTH RESPONDENT (G PTY LTD):
A.Pursuant to s 80(1) of the Act, G Pty Ltd execute any necessary instruments and the such documents be presented to the Australian Securities and Investments Commission to enable the true owner of the G Pty Ltd Shares to be reflected on the register of that company.
B.Such further relief as the Court sees fit.
AND THE APPLICANT (THE WIFE) CLAIMS AGAINST THE FIRST RESPONDENT (THE HUSBAND), THE SECOND RESPONDENT (MS QUEN) AND THE SEVENTH RESPONDENT (G PTY LTD):
A.Pursuant to s 106B of the Act, the Heads of Agreement be set aside.
B.Costs.
C.Such further relief as the Court sees fit.
AND THE APPLICANT (THE WIFE) CLAIMS AGAINST THE FIRST RESPONDENT (THE HUSBAND), THE SECOND RESPONDENT (MS QUEN), THE THIRD RESPONDENT (C PTY LTD), THE FOURTH RESPONDENT (QUEN P/L) AND THE EIGHTH TO TENTH RESPONDENTS (THE CHILDREN):
A.Pursuant to s 106B of the Act, the Deed of Settlement be set aside.
B.Costs.
C.Such further relief as the Court sees fit.
Dated: 15 July 2020.
A M DINELLI
TAUSSIG CHERRIE FILDES
Solicitors for the Applicant/Wife
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