Chih and Chan (No 2) - [2018] FamCA 822

FAMILY COURT OF AUSTRALIA

CHIH & CHAN (NO. 2)

[2018] FamCA 822

FAMILY LAW – PROPERTY – Where each party has property in South Korea – Whether assets are placed in two or three pools – Where a two pool approach is adopted - Where the wife has inherited a part of a large commercial property in South Korea post separation– Whether the wife has a beneficial ownership in the property or holds the property on behalf of her mother – Where the wife does have an interest in the commercial property but there are some restrictions on the wife accessing the capital and income of that property –Where the husband concedes that he made no contribution to the wife’s post separation inheritance and where the wife has made 100 per cent contribution to the first pool - Where the husband’s property in South Korea is subject to a Jeonse – Where an earlier Jeonse was used to purchase the former matrimonial home – Where there has been multiple Jeonses paid throughout the marriage and post separation - Where the current Jeonse is a liability that the husband will be required to pay the tenant of his South Korean property at some future time and is in the nature of a borrowing of a sum certain which should be placed upon the balance sheet – Where the acquisition of the husband’s South Korean property and the Jeonses occurred during the marriage - Where the contributions to the second pool are 70 per cent to the husband and 30 per cent to the wife – Where the contribution to both pools equates to 68.9 per cent to the wife and 31.1 per cent to the husband – Where a 5 per cent adjustment is made in the wife’s favour for s 79(4)(d)-(g) considerations – Where the overall adjustment is 73.9 per cent to the wife and 26.1 per cent to the husband.

Family Law Act 1975 (Cth)

Calvin & McTier (2017) FLC 93-785; [2017] FamCAFC 125
Ferguson & Ferguson (1978) FLC 90-500
Holland & Holland (2017) FLC 93-798; [2017] FamCAFC 166
Kennon v Kennon (1997) FLC 92-757
Rosati & Rosati (1998) FLC 92-804; [1998] FamCA 38
Soblusky & Soblusky (1976) FLC 90-124

APPLICANT:

Ms Chih

RESPONDENT:

Mr Chan

FILE NUMBER:

SYC

3511

2014

DATE DELIVERED:

11 October 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

19 – 20 February 2018;

22 – 23 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fowler

SOLICITOR FOR THE APPLICANT:

Cominos Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Othen

SOLICITOR FOR THE RESPONDENT:

Kim & Associates

Orders

Pursuant to s 79 of the Family Law Act 1975 (“the Act”), an order be made in the terms of paragraphs 2 to 9.
On or before the date which is 42 days from the date of these orders (“the due date”) the husband pay to the wife the sum of $665,166 (“the payment”).
Simultaneously with the making of the payment by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chih and Chan (No 2)

Details

AGLC: Chih and Chan (No 2) [2018] FamCA 822
Case: [2018] FamCA 822
Decision Date: 11 October 2018

CaseChat Overview and Summary

This case concerned financial adjustment orders made by Watts J of the Family Court of Australia between the husband, Mr Chan, and the wife, Ms Chih. The dispute involved the division of property and superannuation interests.

The court was required to determine the terms of the financial orders, including the payment of a sum of money from the husband to the wife, the transfer of interests in a property, the sale of that property in certain circumstances, the division of jointly owned furniture, and the allocation of a portion of the husband's superannuation interest to the wife. The court also needed to address the respective entitlements to other assets and liabilities.

Watts J made orders pursuant to section 79 of the *Family Law Act 1975* (Cth). The husband was ordered to pay the wife a sum of $665,166. Simultaneously, the husband was to discharge a line of credit and mortgage over the "Suburb C Property" and the wife was to transfer her interest in that property to the husband. Provisions were made for the sale of the Suburb C Property by public auction if the husband failed to comply with these obligations, with detailed arrangements for the sale process, reserve price, and distribution of proceeds. The husband was also ordered to transfer a Japanese car to the wife and the parties were to divide jointly owned furniture. A base amount of $47,917 was allocated from the husband's superannuation interest to the wife, with provisions for future splittable payments. Each party was to be solely entitled to property in their respective names or possession, and each was to indemnify the other for associated debts. A Registrar was appointed to execute documents if a party failed to comply with the orders.

Orders

Orders of the court

Pursuant to s 79 of the Family Law Act 1975 (“the Act”), an order be made in the terms of paragraphs 2 to 9.

On or before the date which is 42 days from the date of these orders (“the due date”) the husband pay to the wife the sum of $665,166 (“the payment”).

Simultaneously with the making of the payment by the husband to the wife:

3.1. The husband pay all such moneys and do such other things necessary to cause the Commonwealth Bank Viridian Line of Credit account number …14 and the mortgage securing the Commonwealth Bank Viridian Line of Credit against the property at D Street, Suburb C being the land described in Folio Identifier …/…75 (“the Suburb C Property”) to be discharged; and

3.2. The wife sign all documents and do such other things reasonably required (at the cost of the husband) to transfer her interest in the Suburb C Property to the husband.

In the event the husband fails to comply with his obligations pursuant to paragraphs 2 and 3.1 the parties shall, on the request of the wife, forthwith join in doing all things recommended by the Real Estate agent appointed by the parties pursuant to subparagraph 4.1 to list for sale and sell the Suburb C Property together with all improvements, fixtures and fittings on and to the Suburb C Property in accordance with the following arrangements, unless otherwise agreed in writing between the parties:

4.1. The Suburb C Property shall be listed for sale by public auction within 30 days of the due date referred to in paragraph 2 with a real estate agent as agreed between the parties but in default of agreement within 14 days of the due date, with a real estate agent nominated by the President for the time being of the Real Estate Institute of New South Wales on the request of either party (“the real estate agent”);

4.2. The parties shall do all such acts and things and sign all such documents as necessary to procure a sale by way of public auction of the Suburb C Property upon the following terms:

4.2.1. The auctioneer shall be as agreed between the parties and, if there is no agreement, as nominated by the real estate agent;

4.2.2. The auction shall take place within 30 days of the Suburb C Property being listed with the real estate agent; and

4.2.3. The reserve price shall be as agreed by the parties, and if no agreement, either of them is at liberty to approach the Real Estate Institute of New South Wales to request that an appropriate officer nominate a real estate valuer and the parties shall request such valuer to determine the reserve price for the purposes of auction and the parties shall be bound by the decision of the nominated valuer.

4.3. In the event the Suburb C Property is not sold at any auction held pursuant to these orders or by private negotiation within 14 days after the said auction then the parties shall do all acts and things and sign all necessary documents to procure a further auction to take place within a further 35 days of that date with a reserve price which is 5 percent lower than the reserve price for the previous auction and otherwise upon the same terms and conditions as applied to the first auction.

4.4. In the event the bidding at any auction which takes place pursuant to these orders does not reach the reserve price the parties shall negotiate with the highest bidders or any other interested party and use their best endeavours to effect the sale of the Suburb C Property at a price which is not more than five per cent (5 per cent) below the reserve price or at such other price as the parties may agree in writing.

4.5. The parties shall co-operate in every way with the nominated real estate agent, including (without limiting the generality of the foregoing):

4.5.1. Making all keys available to the real estate agent and allowing inspection of the Suburb C Property at all reasonable times requested by the real estate agent;

4.5.2. Doing or saying nothing to hinder or prevent a sale from being effected;

4.5.3. The husband shall ensure that the Suburb C Property, including the grounds, are in a neat, clean and well maintained condition at the time of inspection by the real estate agent and any prospective purchasers;

4.5.4. Signing all documents reasonably requested to be signed by the real estate agent in relation to the listing for sale of the Suburb C Property; and

4.5.5. Agree to engage a solicitor or conveyancer and failing agreement, such person to be appointed by a nominee of the President of the Law Society of New South Wales for the time being.

4.6. The contract for sale of land for the sale of the Suburb C Property shall contain such reasonable terms and conditions as may be agreed between the parties, or in default of agreement, as advised by the solicitor or conveyancer acting on the sale.

4.7. The husband shall pay all costs required to be paid to implement any requirement in paragraph 4 and, in relation to any such costs paid to the Real Estate Institute of New South Wales for the purposes of nominating a real estate agent or valuer, to the real estate agent for advertising expenses, to the auctioneer for auction fees, to any valuer appointed under this order for valuation fees and to any solicitor or conveyancer engaged to act for the parties on the sale, and the husband shall be entitled to be reimbursed such amounts from the sale proceeds of the Suburb C Property as a cost of sale.

4.8. Upon completion of the sale of the Suburb C Property the proceeds of the sale shall be applied in the following order and priority:

4.8.1. subject to paragraph 5.2, in payment of the amount required to discharge the Commonwealth Bank Viridian Line of Credit and the mortgage over the Suburb C Property;

4.8.2. In payment of all real agent’s commission and auction expenses (if any);

4.8.3. In payment of all legal or conveyancing costs and expenses on sale;

4.8.4. In payment of all rate adjustments (subject to paragraph 5.1);

4.8.5. Reimbursement to the husband of any amounts paid by him as referred to in subparagraph 4.7;

4.8.6. In payment to the wife of 665,166/1,250,000 of the balance provided that in the event the gross sale price for the Suburb C property exceeds $1,250,000 this amount shall be increased by 73.9 per cent of the difference between $1,250,000 and the gross sale price and in the event that the gross sale price for the Suburb C property is less than $1,250,000, this amount shall be reduced by 73.9 per cent of the difference between $1,250,000 and the gross sale price; and

4.8.7. In payment of the balance to the husband.

Pending the transfer or sale of the Suburb C property pursuant to these orders:

5.1. The husband shall pay as they fall due all rates, taxes, building and legal liability insurance premiums to keep the Suburb C property insured in the joint names of the parties to its full insurable value, and other outgoings in relation to the Suburb C Property;

5.2. The husband shall pay as they fall due any amounts which require payment in respect of the Commonwealth Bank Viridian Line of Credit and the mortgage over the Suburb C Property and any arrears in respect of the regular repayments in relation to these liabilities;

5.3. The husband shall maintain the Suburb C property in a clean, tidy and well maintained state and condition; and

5.4. Neither party shall withdraw funds against the Commonwealth Bank Viridian Line of Credit without the prior written consent of the other party.

Within 14 days the husband do all acts and things and sign all documents required to transfer the Japanese car registered number … to the wife.

The parties are to divide the jointly owned furniture evenly by agreement and failing agreement by a pick a pile method.

That:

8.1. The court allocate, as required by s 90MT(4) of the Family Law Act 1975, a base amount of $47,917 to Ms Chih (“the wife”) out of the interest of Mr Chan (“the husband”) in E Superannuation, member number …75 (“the Fund”).

8.2. Pursuant to s 90MT(1)(a) of the Family Law Act 1975, whenever E Superannuation makes a splittable payment out of the interest of the husband in the Fund, the Trustee shall:

8.2.1. Pay to the wife the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

8.2.2. Make a corresponding reduction in the entitlement the husband would have had in the Fund but for this order.

8.3. This Order has effect from the operative time.

8.4. The operative time for this Order is 4 business days after the date of service of a sealed copy of the Orders on the Trustee of the Fund.

8.5. The Trustee of the Fund do all such acts and things and sign all documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the Trustee can calculate the entitlement of, and make payment to, the wife in accordance with this Order.

Each party be solely entitled to the exclusion of the other to all property, assets, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.

10.

In the event that either party refuses or neglects to sign any document required to be signed to comply with this Order, a Registrar of the Family Court of Australia is hereby appointed to execute all Deeds and documents in the name of the husband or wife and do all acts and things necessary to give validity and operation to this Order pursuant to s 106A of the Family Law Act.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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