Chen & Chen & Ors (No. 3)

In this matter before Wilson J, the application concerned a strike-out application brought by the second respondent against the first respondent's statement of claim. The dispute involved allegations that certain real property and shares held by the second respondent were held on a resulting trust and a constructive trust for the first respondent. The second respondent sought to strike out parts C and E of the statement of claim.

The primary legal issues before the court were whether the statement of claim, as it related to the claims of resulting and constructive trusts, disclosed a cause of action, was scandalous, frivolous or vexatious, might prejudice, embarrass or delay the fair trial of the proceedings, or was otherwise an abuse of the process of the court. The court was also required to consider the application of the High Court Rules, specifically rule 27.09.5, to strike out applications in the Family Court, given that the Family Law Rules are silent on such matters.

Wilson J reasoned that the Family Law Rules' silence on strike-out applications necessitated the incorporation of the High Court Rules by operation of section 38(2) of the Family Law Act. The court examined the principles governing the pleading of resulting and constructive trusts, including the need to demonstrate a proprietary interest in funds used to acquire the asset in question and the requirements for alleging an in personam exception to indefeasibility of title. The court found that the pleading was defective, lacking the necessary precision for complex legal and equitable claims, and that it was undesirable to permit the case to proceed on such a basis.

The court ordered that the interim defended hearing listed for 14, 15, and 16 September 2020 be vacated. The parties were directed to provide chambers with a minute giving effect to the court's reasons on or before 4 pm on 16 September 2020.