Choi & Dang

[2020] FCCA 53

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOI & DANG & ORS [2020] FCCA 53

Catchwords:
FAMILY LAW – Property – extraordinarily complex property case – all main witnesses giving evidence through interpreters – none of these witnesses convincing – documents created which did not mean what they say – pool all but impossible to establish – intervention of third parties with interests in the pool – no detailed submissions as to the Court’s powers to effect orders altering third party interests – Court doing its best in the circumstances – division of the pool 80/20 in favour of the Husband – parties to be further heard as to the form of declarations and orders to be made.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79, 90AE

Limitation of Actions Act 1958 (Vic), s.8

Transfer of Land Act 1958 (Vic), s.42

Cases cited:

Baumgartner v Baumgartner (1987) 164 CLR 137

Muschinski & Dodds (1985) 160 CLR 583

Stanford v Stanford [2012] HCA 52

Applicant: MS CHOI

First Respondent: MR DANG

Second Respondent: MR F DANG

Third Respondent: MR T DANG

Fourth Respondent: MR MASON

File Number: DGC 1847 of 2017

Judgment of: Judge Burchardt

Hearing dates: 9-13 December 2019

Date of Last Submission: 13 December 2019

Delivered at: Dandenong

Delivered on: 7 February 2020

REPRESENTATION

Counsel for the Applicant: Mr Sheen

Solicitors for the Applicant: Sutherland Lawyers

Counsel for the First Respondent: Mr Guo

Solicitors for the First Respondent: GR Lawyers

Counsel for the Second Respondent: Ms Clarkin Hardy

Solicitors for the Second Respondent: Accuro Legal

Counsel for the Third Respondent: Mr Horsfall

Solicitors for the Third Respondent: John Snodgrass & Associates

Counsel for the Fourth Respondent: Mr Roser

Solicitors for the Fourth Respondent: Roser Lawyers

IT IS NOTED that publication of this judgment under the pseudonym Choi & Dang & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1847 of 2017

MS CHOI

Applicant

And

MR DANG

First Respondent

MR F DANG

Second Respondent

MR T DANG

Third Respondent

MR MASON

Fourth Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a property dispute rendered all the more complex by the multiplicity of parties.  The Applicant Wife seeks a division of the property pool, as she asserts it, in equal proportions between her and the Trustee in Bankruptcy of her former husband, who is the First Respondent.  She seeks that in the event that the funds generated are sufficient to pay out the bankruptcy, then the surplus be given to the bankrupt.  The Second Respondent, who is the son of the bankrupt by a prior marriage, seeks that a property in B Street, Suburb C belong to him alone and that ancillary orders are made to force the Applicant Wife to remove a caveat she has placed over that property.  The Third Respondent, who is the brother of the bankrupt, seeks orders in relation to a property in D Street, Suburb E nominally owned by the bankrupt, and the Trustee, understandably, simply seeks that this mess be sorted out and that the appropriate funds notionally allocatable to the bankrupt vest in him.

2. It should be noted that none of the primary players who gave evidence elicited in me any feeling that they were particularly concerned to tell the truth in any objective way.  I make this comment notwithstanding the obvious difficulties arising from the fact that they all gave their evidence through an interpreter.  Although only they will know whether or not they were telling the truth, none of them convinced me that they were. 

3. It is immediately obvious, therefore, that this case presents significant forensic difficulties, bearing in mind that a central part of the case of the various respondents is that they signed documents which did not mean what they said. 

Agreed or Uncontroversial Relevant Matters

1. The Applicant Wife (whom I will refer to as “the Wife” or “Ms Choi” or “Ms Choi” as the context makes appropriate) was born in 1972, and the Respondent Husband (“the Husband”) was born in 1959. 

2. The Husband had previously been married to a woman now known as Ms G, who was herself born in 1961 in China.  The Husband and Ms G married in 1984, and their son, Mr F Dang (“Mr F Dang”), was born in 1985.  He is, of course, the Second Respondent.

3. Ms G has deposed that she met the Applicant Wife in 1993 and she deposes to an affair between the latter and her then husband which ultimately culminated in divorce in 1996.  Her husband and Mr F Dang, who had lived with her in Country FF for a period of time, came to Australia in 1998.

4. The Third Respondent Mr T Dang (“Mr T Dang ”), the younger brother of the Husband, was born in China in 1961 and came to Australia in 1990.  He is married to Ms J (“Ms J”) and has a daughter aged 22. 

5. According to the Wife’s first affidavit, the parties commenced formal cohabitation in 2000, when she moved to City EE, China, and she and the Husband were married in 2003.  The Wife came to Australia in 2004.  Prior to her arrival, the Husband and his brother Mr F Dang, had bought a property in D Street, Suburb E for $315,000.  They had entered into a written agreement, pursuant to which Mr F Dang was to put up monies for the deposit and renovation of the property and the Husband was to collect the rents and ensure that the mortgage was paid.  The property was to be held, in effect, jointly until sale, when the Husband was to be paid half of the capital appreciation in the property.  It would be necessary to return to the terms of this document in more detail.

6. It seems reasonably clear that upon arrival in Australia, the Wife and the Husband lived initially from 2004 until about 2008 in the D Street, Suburb E property and thereafter moved, at least for a time, to a further property in B Street, Suburb C.  That property is the second of the two properties which are the essential kernel of the dispute in this case.

7. The circumstances surrounding the purchase of the B Street, Suburb C property are vividly in dispute, but it seems clear that it was bought in 2008 and Mr F Dang was made the registered owner at that time. 

The Parties’ Affidavits

1. The parties have filed all too numerous affidavits in this proceeding, appending voluminous documentation.  Counsel for the Husband evinced on a number of occasions an intention to undertake some sort of forensic accounting exercise involving the numerous documents tendered.  I indicated during the running of the trial that the Court was not equipped to conduct such an exercise.  I am not an accountant.  The matter was further bedevilled by endeavours on the part of the Wife to file material from an unqualified and obviously partisan witness who had purported to conduct some form of forensic analysis himself.  I ruled all that evidence inadmissible for the reasons I gave at the time. 

2. Any endeavour even to paraphrase, even with a broad brush, the parties’ affidavit materials would make this a very lengthy judgment, and I suspect it will be quite long enough as it is.

3. While I have obviously read and had regard to all the materials the parties have filed, I would perhaps refer to the following matters.

4. In her first affidavit filed on 19 June 2017 (this case has taken a long time to get to trial because of the multiplicity of parties and the intervening bankruptcy of the Husband), the Wife deposed to having a business in City EE, China and having met the Husband at his parents’ place of business in China.  She deposed to their living together from 2000 onwards.  She deposed to being a customer service manager and having assisted in the family business.  The family business was sold, and according to the affidavit, the husband went to Country FF for four years and then to Australia, where he had permanent residence.  The Wife deposed to coming to Australia in 2004 and to having sold her business before she moved to the in-laws in China.

5. The Wife deposed to the purchase of the B Street, Suburb C property in about 2008 for $1.43 million, of which she deposed $230,000 was contributed by herself and her husband and $160,000 by Mr F Dang.  She deposed that she and her husband moved into the B Street, Suburb C property and personally conducted renovations.  The Wife asserted that she had, inter alia, done flooring, plastering, tiling and painting in significant amounts.  She deposed that she had thought that the property in B Street, Suburb C was jointly owned by herself and the husband. 

6. She also deposed to the purchase of land in Suburb K, Town L in Western Australia in about 2009 for $82,000.  She deposed that contrary to her prior understanding that she and her husband owned it, it was in fact owned by Mr F Dang.  She deposed to a Motor Vehicle 2 leased in 2013, which she had driven, and deposed that she was living above her business in GG Street, Suburb HH. 

7. The Husband’s responding material filed on 30 November 2017 deposed to his arrival in Australia and his having met the Wife in 2000, followed by marriage in 2003.  He deposed that the property in D Street, Suburb E had been bought in 2003 for $315,000 with his brother, Mr F Dang, contributing $75,000.  This was described as a joint venture, pursuant to which he would pay the mortgage and receive half the proceeds of the increase in the value of the property if it was sold.

8. The Husband’s affidavit went on to assert that his prior business was transferred to the Wife in late 2012 or early 2013, that he had worked for the business until separation in about August 2015.  He deposed that he had not been paid any wages whatever in the meantime.  The Husband deposed to the purchase of the B Street, Suburb C property in 2008, together with his son, Mr F Dang. He deposed at paragraphs 22-25:

   22. The property was purchased for the price of $1.15 million.

   23. There was an agreement between me and my previous wife that I will contribute to Mr F Dang’s property as a gift. 

   24. As a result of that agreement, I refinanced the D Street, Suburb E property with Westpac and raised $230,000 and paid towards the purchase of the B Street, Suburb C. 

   25. Mr F Dang paid the balance of the purchase amount for the B Street, Suburb C property through a financial accommodation that Mr F Dang had applied with the bank and Mr F Dang has always been the one who has been making the repayments of the financial accommodation.

9. The Husband went on to depose that he had no knowledge about the alleged Western Australian property. 

10. In his first affidavit, filed on 7 February 2019, Mr F Dang relevantly deposed in 2006 he purchased a house in Suburb JJ, renovated it and sold it two years later and made a profit of approximately $430,000.  He deposed that neither his father or the Wife had anything to do with it, save for some help from his father in painting.  He deposed to the Wife seeking to get money from the profit but described this as absurd.  It should be noted that no mention was made in that affidavit as to any participation on the part of Mr F Dang’s mother, Ms G.  Mr F Dang also denied agreement to purchase property in Western Australia but did say at paragraph 8-10:

    8. I signed the document on 8 July 2011 together with another document because my father pressured and begged me to sign it.

    9. I had never wanted to sign the documents.  They do not contain credible or true information.  One purports a purchase a property that I’m not privy to.  The other purports to the nature of my purchase of my house 3 years after I had purchased it as some sort of joint venture.  I find them ridiculous.  However my father told me that Ms Choi will make his life hell or divorce him if I did not sign them.  I told my father to the effect that I would give back the $230,000 if my uncle wanted the money back, but my house is my house, not some joint investment. 

    10. My father continued to plead with me and told me that if I signed that he just need to appease Ms Choi and my house is still my house.  Seeing my dad in that state, I signed the documents.

11. The affidavit went on to say at paragraph 12:

    My father then came over to my house and pleaded with me and even kneeled in front of me to help him save his marriage.  He reiterated that these documents mean nothing and that everyone knows that my house is my house.  I was very unhappy but in Chinese cultural I am supposed to respect my father’s wishes so in the end I signed them in 2011. 

12. Mr F Dang went on to refute the assertions made by the Wife as to her participation in the running of the B Street, Suburb C property. 

13. Mr F Dang went on to depose that he had given equipment to the father to sell through his father’s business, O Pty Ltd, with retail value of $500,000 and he has not been given anything by way of funds from the relevant sales.  He then deposed that in the light of the Wife not giving him any funds, at paragraph 20:

    I then spoke to my dad and told him that given the situation, I consider that I had returned the $230,000 he had given me and my dad agreed if my uncle ever asked for the money, that I would no longer be responsible.  Instead, my father would be responsible to pay my uncle.  He agreed.

14. In his next affidavit filed 7 February 2019, the Husband asserted that the Wife owned O Pty Ltd and eight other companies. 

15. In his first affidavit filed 15 February 2019, Mr T Dang, the Husband’s younger brother, deposed to the purchase of the D Street, Suburb E property.  He appended a copy of an agreement dated 5 June 2002 in Chinese.  The terms of the agreement were relevantly that Mr T Dang would fund the cost of purchase and renovation and the Husband would be responsible for renting the property and meeting the mortgage payment using rent.  He deposed that he, Mr T Dang, would decide when to sell the property and that no one could unilaterally increase the mortgage and that he would keep all the proceeds, save 50 per cent of the capital gains when it was eventually sold.  He deposed to having paid approximately $63,000 to cover the initial deposit, plus transaction costs and a further $50,000 in terms of renovation expenses.  He deposed to the fact that the Wife knew about this agreement.  He then deposed to having been informed in the latter half of 2017 by his brother of the $230,000 increase in the mortgage in 2008.  He also deposed to seeing for the first time in 2019, a purported will of his brother, the Husband, dated 8 June 2009, giving his various interests to the Wife. 

16. The Wife’s affidavit filed 18 February 2019 deposes to the Intervention Order made on 31 August 2015 against the husband and his having been found guilty of assault arising out of that incident. 

17. She appended as “C-1” a letter from Mr T Dang dated 12 December 2000, which inter alia described the Wife as working as a customer service manager in a business in China.

18. She appended as “C-2” a statement dated 17 July 2001 by the Husband.  In this, the Husband asserted that he first met the Wife in 1993 and that they lived together after four months, with the Wife looking after his son.  He deposed to having himself gone to Country FF in 1994 and the divorce which then followed with his first wife.  He described the relationship with the Wife in 2001 as “after nearly 8 years defacto life”.

19. Exhibit “C-5” includes a number of tenancy agreements involving both the D Street, Suburb E and B Street, Suburb C properties.  I note that the Wife is named as the landlord in a complaint made by a former tenant about the non-release of a bond.

20. Exhibit “C-9” is an alleged joint investment agreement executed by Mr F Dang and the Husband on 13 July 2011, apparently witnessed at the Q Pharmacy in Suburb C.  This was in relation to the purchase of a property at the Suburb K, Town L in Suburb K, with each party to contribute $41,000.  There was also an alleged agreement number 2 dated 8 July 2011 which relevantly asserts:

    My father and I have invested in a block of land located at Suburb K, Town L, in which Mr Dang invested A$820,000.00 and I shall pay the balance.  The net profit from the sale of the property in the future shall be divided between the two investors according to their investment ratio in the property.

21. Annexure “C-11” is in these terms (in English translation):

    I, Mr Dang, invested A$230,000.00 in the property at Street R, Suburb S, with my son DANG Mr F.  In the event of my death, the portion of my investment of the above mentioned property goes to Ms Choi and so does my other property located at D Street, Suburb E, VIC.

22. Annexure “C-12” is a series of documents relating to the B Street, Suburb C property.  The first page comprises a letter from U Law Firm & Associates to the Husband dated 8 December 2010.  It confirms instructions to register a caveat on the B Street, Suburb C property.  The letter relevantly says:

    We note your instructions that you and your son MR F DANG had purchased the property jointly but he only registered himself as the proprietor. 

    You have been the main contributor to the monthly interest payments on the mortgage. 

    You are concerned that your son has allowed his girl friend Ms G registering a caveat on the title although to your knowledge she has not contributed to any mortgage payment or was ever a party to the purchase.

23. The caveat to be lodged asserted that:

    MR F DANG holds the property for his father MR T DANG pursuant to a Constructive Trust.

24. The title deeds show that Ms G lodged a caveat on 24 March 2009 asserting an interest pursuant to a declaration of trust in her favour dated 8 October 2008.  The transfer of the property to Mr F Dang from these records appears to have occurred on 8 October 2008.

25. Annexure “C-13” shows that the Husband withdrew his caveat on 18 August 2015, almost entirely contemporaneously with the final separation.

26. Annexure “C-14” comprises a number of documents.  One is described as agreement 01 and is dated 8 July 2001 and relevantly said:

    My father, Mr Dang and I, DANG Mr F have invested in a property located at Street R, Suburb S, in which my investment is A$160,000.00 and my father’s investment is A$230,000.00, a total investment of A$1,150,000.00.  When the property’s future development, for example, building apartments on the property, requires further investment, both of us will invest according to the ratio of our current investment; if the property is sold without further improvement, the profit of the sale shall be divided equally between the two investors.  Mortgage interests will be paid by Mr Dang, who is responsible for collecting rent of the property to cover the interest payment; the part of the interest payment not covered by the rent shall be paid by Mr Dang.

27. It should be noted that this document is said to be a translation of a document in Chinese script.

28. The second part of the annexure is a joint investment agreement ostensibly between Mr F Dang and the Husband dated 13 July 2011, once again witnessed at the Q Pharmacy, Suburb C which is consistent with the document I have just set out.

29. Annexure “C-17” includes various documents relating to O Pty Ltd which appears to have transmogrified at least once during its corporate history, having what appear to be two company numbers.  In its second incarnation, it appears to have taken over from N Pty Ltd.

30. The address given for the company is Street R, Suburb S where the Wife still resides).

31. It should be noted that the Wife has by affidavit filed on 5 December 2019 responded in detail to the assertion made by the various Dang family members as to the provision of goods to be sold through O Pty Ltd.

32. On 4 December 2019, Ms G filed her affidavit.  Relevantly, she asserts that in 2005, a property in Suburb JJ was bought for $920,000 of which she contributed $250,000 in cash.  It was agreed by a declaration of trust signed on 6 October 2005 that Mr F Dang as trustee holds 80 per cent of the Suburb JJ property on trust for her as a beneficiary.  She went on to depose to the property being sold with a profit of $430,000 in about July 2007.

1. Ms G deposed that on 8 October 2008 the B Street, Suburb C property was bought for $1,150,000 with a loan taken out by Mr F Dang in the sum of $930,000 and that “we funded the cash in the sum of $300,000 to complete to the settlement”.

2. Leaving aside various valuation affidavits, the next affidavit to which it is appropriate to turn is that of Ms J, the wife of Mr T Dang, filed on 6 December 2019.  She deposed to the purchase of the D Street, Suburb E property as being a decision being made by her and her husband.  She deposed to the fact that the deposit on the property was, in fact, paid by her in the sum of $31,500, and she annexed bank records that, to my mind, prove that this was so.

3. The other matter it is necessary to deal with at this stage is to note that in his affidavit filed on 6 December 2019, Mr T Dang appends, as annexure “D-7”, drawings showing the very significant number of additional bedrooms that were placed into what was originally a small property in D Street, Suburb E.

4. Against this admittedly selective and broadbrush approach to the parties’ materials, it is appropriate to come to what was said at Court. 

5. What follows is taken from my notes.

The Opening and Evidence of the Wife

1. Counsel opened the case.  It was submitted that a valuation on 30 August 2018 valued the B Street, Suburb C property at $3,375,000 and a further valuation on 23 July 2018 of the D Street, Suburb E property at $1,375,000.  It was submitted that the value of the mortgages was not clear.  The Husband owns the D Street, Suburb E property, which has approximately $540,000 mortgage.  The B Street, Suburb C property was owned by Mr F Dang with a mortgage of $985,000.  Counsel referred to the bankruptcy of the Husband.  He is the registered owner of the Motor Vehicle 1 which the Wife seeks.  The Wife sought that the two properties be declared to be held on trust.  The D Street, Suburb E property should stay with the Husband.  The B Street, Suburb C property should be the subject of a constructive trust to the benefit of the Husband and Wife.  Counsel referred to the very recent intervention of Ms G and her claim to be the owner of 80 per cent of the B Street, Suburb C property, with Mr F Dang being the 20 per cent owner.  The property in Western Australia should be added back.

2. It was noted that subpoenas had been issued to two witnesses.  The first witness called pursuant to subpoena was Ms V. 

The Evidence of Ms V

1. Ms V confirmed in evidence-in-chief that she had been asked to provide an affidavit but had not done so.  She confirmed that all the stocks given to the Husband belonged to her cousin.  She had only had contact with the Husband.  She could not remember how many years it had been.  A friend of hers in Perth introduced her to Mr F Dang’s girlfriend, whom she met.  The stock was owned by her cousin’s brother and sisters.  They had had problems selling it.  The Husband said he was in a business.  That is why she came to Melbourne.  She had worked with Ms Choi in the business.

2. I do not propose to detail the cross-examination of this witness, as her answers were uniformly unbelievable.  She was palpably unprepared to answer questions, and I should say here and now that, although it would appear that certain stock was given at some point to someone, it is wholly unclear how much of it there was or what became of any funds that were generated by the sale of some or all of them. 

The Evidence of Ms W

1. Ms W confirmed that she had acted for the husband and prepared an affidavit for him in 2017.  She had come with him to Court.  She confirmed that she did not know the Wife personally.  She said that the Husband’s account in his subsequent affidavit was untrue. 

2. Ms W impressed me as being a witness of truth. 

The Evidence of the Wife

1. The Wife adopted her affidavits as true and correct.  She confirmed that she lives at  GG Street, Suburb HH.  She has a business in industry material. 

2. Under cross-examination by counsel for the Husband, it was put to her in rather broad terms that she had provided multiple different accounts of what had occurred in the past.  The Wife said she did not know what the question was asking. 

3. The Wife first became intimate with the Husband in 1993.  They had filed a statement when she migrated.  They started living together in 1993 or 1994.  She was working with the Husband in 1993 or 1994.  She could not recall her exact age at the time.  The Husband was about 40 at that time.  The Wife confirmed that she was born in City MM, China and then moved to City NN, China.  She moved to City OO, China in 1993.  She graduated high school and went to City OO to work.  She started working for the Husband’s parents in 1992 or 1993 and lived with him from 1993 onwards.  They were in the same house at the beginning.  When asked what work she had done from 1993 until she came to Australia, the Wife said that after the Husband left for Country FF, for two or three years she returned to City EE, China.  She said she was not lying.  When it was put to her that she had not worked as a customer service manager of a company she said it happened.  During the time the application to come to Australia was on foot, she had moved to City OO working for his parents while she was waiting.  He was in Country FF but came back from time to time and had also visited Australia.  She was in City EE in 1994 and 1995 after the Husband went to Country FF.  She was only in City OO for a short time before she went to City EE, where she stayed for four or five years.  She was the owner of a business which did really well.  She was also a tradesperson.  She made tens of thousands of renminbi in a month, amounting to 60 or 80,000 renminbi each month.

4. The Wife confirmed the marriage in 2003 but denied ceasing work after that.  She was working for the family business in City OO.  She said she had photographs and a statement by the business.  When it was put to her that her affidavit said she was not working, the Wife said that in 2003 this business was about to shut down.  After 2003, she was not working.  She helped out waiting for her visa. 

5. When it was put to her that the property in D Street, Suburb E was bought before either she or the Husband arrived in Australia, the Wife professed not to understand.  She arrived in Australia in 2004.  The D Street, Suburb E property was bought in 2002.  When it was put to her that she had not brought any money to Australia, the Wife said she brought some money.  When she went back to China, she brought money and also furniture.  She said that you cannot bring in too much money, but she could not remember clearly.  She gave it to the Husband because they were living together.  She could give no estimate of the total amount of money she had brought into Australia. 

6. It was put to her that she still had a million dollars left over from her activities in City EE China (a proposition inconsistent with the thrust of the questions more generally to the effect that she was not successful).  The Wife said she had been here for 17 years.  She has no assets in China.  His parents owe her money for business and living expenses.  His parents lived in her property.  She had shipped a container and goods to Australia and bought cooktops for D Street, Suburb E.  She bought curtains for D Street, Suburb E from China.  Notwithstanding her asserted substantial earnings in China, all of this had been spent.

7. The Wife was cross-examined about her role in the Husband’s business, and if I understood her answers correctly, she described her activities as essentially being recruitment.  She was to go with him to sites, but it was not a big business. 

8. The Wife confirmed that she was the manager of a business in City OO China.  It was in the migration application.  At the beginning she was a customer service officer, but later she was a manager.  Mr T Dang wrote the reference for her visa, but it was not granted.

9. It was put to the Wife that Mr T Dang had lied and that she had written the letter to the visa authorities herself.  The Wife said she did not agree with the question.  What Mr T Dang had said about her as manager was true. 

10. It was put to the Wife that she was in the practice of getting people to lie on documents to help her.  The Wife said that his parents and his brother Mr T Dang and the Husband all provided a reference, especially Mr T Dang.  She was in China.  The Husband wrote the documents. 

11. I should interpolate at this point and say that almost from the very beginning of her evidence under cross-examination, the Wife was almost uncontrollable.  Her answers were almost uniformly unresponsive to the questions put, and she was in the habit of making speeches of her own.  Her answers were lengthy and non-responsive, and her answers were palpably self-serving.  Her answers about the amount of cash she had brought to Australia I found wholly unbelievable.  She was also prone to wild exaggeration.

12. It was put to the Wife that she had never parented Mr F Dang, the Husband’s son.  She disagreed and said she had audios between his son and girlfriend saying how good she was. 

13. When it was put that Mr T Dang had provided $63,000 to purchase D Street, Suburb E, the Wife said she did not know what he was referring to and questioned whether it was a loan.  She confirmed that she had returned to the D Street, Suburb E residence to retrieve her clothing because that was her home.  She said the Intervention Order did not stop her going to her home.  Family violence was effected by the Husband and his son.  She was fearful and waited until he was not at home.  The Husband blocked her car, and she could not leave.  She was there for more than half an hour.  She heard Ms A being beaten up.  She had made a police report. 

14. There was questioning about damage to the property at B Street, Suburb C, but as I indicated during the currency of the trial, I think more than once, it will never be possible for me to work out who damaged the B Street, Suburb C property if, indeed, it was damaged. 

15. The Wife confirmed the Husband bought the D Street, Suburb E property in 2002.  She had never seen any agreements between her and Mr T Dang.  She said she was involved in negotiations.  The Husband told her the details about agreement with Mr T Dang, but she had never seen any agreement.  In terms of the agreement, there was a duplicate.  She wanted Mr T Dang to provide the original.  She then contradicted herself by saying that she had never renegotiated any agreement. 

16. The Wife said that they had bought the property in B Street, Suburb C for $1.15 million.  $230,000 was a deposit by refinancing the D Street, Suburb E property.  She could not remember which month the property in B Street, Suburb C was bought.  They moved in right after they got the keys and were renovating the house and recruiting tenants. She denied that she had not discussed the purchase of B Street, Suburb C with the Husband and disagreed that it had never been discussed with his son.  When pressed as to how much work she had done on the renovations, the Wife said she had done a small patch of flooring and that her fingerprints were on it.  She agreed that the Husband did the plastering.  I should interpolate and say that if ever there was a person who impressed me as being what is sometimes described as a “silk and satin” person, the Wife struck me very much in that vein.  She was immaculately dressed and presented on each of the days of trial, and if she did a small amount of flooring, that is certainly the maximum amount that she did by way of work of a manual nature in either of the two properties. 

17. The Wife confirmed that she had not attended the auction for the B Street, Suburb C property because she was running the business.  She agreed that she had not applied for the mortgage but she was repaying the monthly interest.  When it was put that the mortgage was covered by rent, the Wife disagreed.  The property was not occupied all the time because the students had holidays. 

18. When pressed on the question of disclosure, the Wife professed to have provided evidence.  She said she had provided her bank account records. Some rooms were rented, but they were not always occupied.  B Street, Suburb C was renovated over three to four months.  When it was put to her that she had trashed B Street, Suburb C’s property with friends, the Wife said family violence had occurred both at D Street, Suburb E and B Street, Suburb C but she denied trashing the house.

19. The Wife was cross-examined about paragraph 61(d) of her affidavit filed 18 February 2019, which dealt with the purported will of the Husband.  The Wife said he had high blood pressure and felt sorry for him at the time.  She denied that he was appeasing her. He had high blood pressure.

20. The Wife disagreed that she had not provided the value of her businesses and said she had disclosed all the relevant materials.  The company was shut after the family violence incident because there was nowhere to conduct the business.

21. The Husband and his son came and beat employees.  The Husband took her car keys.  She got them back through the police.  She had nowhere to live and no money.  He withdrew all her money.  They robbed the cash in the shop and got her cell phone as well.  After the other employee was assaulted, no one would work for her any more. 

22. When it was put to her that, in fact, the business had thrived, the Wife said the business was right beforehand.  She has not been able to pay her employee, Ms PP, for two years.  She said, and this is an answer of some note, that, “My current partner paid her.” 

23. The Wife disagreed that her business was thriving.  She disagreed that she had duplicated the business and accumulated $1 million in doing so.  She conceded that she was a director of O Pty Ltd.  There were two ABN numbers for two different entities.  The second one was a different business.  She said this took place after she was subjected to family violence on 11 August 2015.  Cross-examination about the various companies was persistent but, in my view, produced little in the way of comprehensible evidence. 

24. It should be noted that I permitted counsel for the Husband, who had been permitted to participate in the proceeding following an interlocutory proceeding, considerable amounts of time in which to cross-examine.  Much of the cross-examination was put in a rather generalised, albeit entirely accusatory, fashion.  It seemed to me that it was likely that unless time limits were imposed, cross-examination would proceed almost indefinitely.  

25. I gave counsel at least two, if not three, explicit warnings of the amount of time he was likely to be given to proceed.  Counsel paid, as far as I could see, little regard to what I had advised.  In the end, having given him what I felt was a fair and reasonable opportunity to put his questions, I ceased cross-examination.  In some respects, this may have meant that some areas that might have been profitably explored were not, but there is a limit to the amount of time and latitude to be granted to counsel.  To the extent that counsel failed to have the opportunity to traverse any matters of note, this is solely as a result of his failure to order his questions in a sensible fashion.

The Wife under Cross-Examination by Counsel for the Second Respondent, Mr F Dang

1. Under cross-examination by counsel for Mr F Dang, the Wife said that she remembered Western Australian joint investment.  She had no detailed knowledge of it.  It was put to her that between 2008 to 2011 she had lived in the B Street, Suburb C property and that Mr F Dang had never lived there but lived in D Street, Suburb E or Western Australia.  The Wife said she recalled this and that he lived in Perth.  Mr F Dang had a business, but he was in Perth. 

2. When they moved into the B Street, Suburb C property, she noted bills in the son’s name and asked her ex-husband about this.  She disagreed that there had been meetings when the purchase of the B Street, Suburb C property was discussed with his son.  The property was purchased by her and the Husband.  Her former husband was very upset with his son and put a caveat on the B Street, Suburb C and Western Australian properties. She disagreed that the purchase of B Street, Suburb C by Mr F Dang was discussed at dinners.  She did not agree that the bill showed only the son’s name.  The discussion was about purchase in joint names.  The Husband’s name should be on the bills, at least. 

3. It was put to her that she had, in effect, extorted the signature on the will by refusing to call an ambulance if the husband did not sign, but the Wife disagreed. 

4. In respect of the mortgage in D Street, Suburb E, the Wife said it was about $2,000 a month in the beginning, but after the re-mortgage to buy B Street, Suburb C in Western Australia it was $3,000 a month.  When asked where the Western Australian property was, she said it was hard to pronounce.  It was a piece of land to be bought for $80,000.  It was all deducted from the Husband’s bank account.  If he wanted money, she would give him cash.  The B Street, Suburb C mortgage cost $5,000-$6,000 a month.  She had never done detailed calculations about the rent from B Street, Suburb C or D Street, Suburb E.  The leases were signed by her and her former husband.  She kept a ledger of the rent. 

5. When asked if the property at Suburb K was actually purchased, the Wife said she was sure it was purchased.  There would be bank records.  His son put the property under a company name but not his name.  A building was built on the land.  She disagreed that the property in Suburb K had not been bought.  Indeed, her answer constituted a long rant. 

6. When asked who had engaged U Law Firm, the Wife said she did not agree.  She said they found out the property was not in their name, so the husband went to Mr T Dang.  The husband called his son and accused him of lying.  She had not heard the name of Ms G until this proceeding.  When it was put to her that she must have instructed Ms U because she was the only person who did not know Ms G, the Wife disagreed. 

7. It should be noted that the Wife was visibly unprepared to answer the questions put to her about this aspect of the case, and the point about her not knowing Ms G is an obvious one. 

8. The Wife was cross-examined about the agreements for the purchase of the property in Western Australia.  She said the $820,000 referred to should have been $82,000. 

9. Attachment “C-14” was dated 8 July 2011 in Chinese, and this related to B Street, Suburb C.  When asked about another agreement in respect of D Street, Suburb E, the Wife said “where was it” and she had never heard of it. 

10. When it was put to her that she had connived to have these documents signed, the Wife said this was not how she believed.  The Chinese document was brought home by her former husband, and she had never seen the English document.  If she had had it, she would not have been kicked out by her son.  She disagreed that the documents were signed under duress.  She said she had only lived at the warehouse since she was kicked out of her two homes.  She had nowhere to go.  She is still living in a small room.  She disagreed that she had put the Husband under pressure to sign documents for two years and disagreed that she was concerned that the B Street, Suburb C property was not in her name.  The police had investigated the incident at the B Street, Suburb C home after the family violence in 2015.  The police did not attend.  She said his son called police several times about girlfriends and then about her. 

11. The company P Pty Ltd referred to at paragraph 32 of her affidavit filed 5 December 2019 belongs to Mr F Dang.  She had caused her lawyer to do the research.  She did not know about it, because it was his son’s company.  The Wife said that after she was kicked out, Mr F Dang smashed her bedroom and bathroom.  She denied being present when damage was caused to the B Street, Suburb C property and repeated that this was done by her husband’s son. 

1. The Wife said that in 2008 onwards when they moved to B Street, Suburb C, she had recruited tenants.  She admitted that after she left the B Street, Suburb C property, she had no involvement with it.  She was kicked out by the son and had not gone back.  She did not owe anything after 2015. 

2. The Wife was cross-examined about the company M Pty Ltd.  She conceded about $300,000 had been injected into that company in 2016.  She said this was from other partners as a joint investment.  It was not to buy shares in the business because the business was shut down.  I should interpolate and say that these answers had all the appearance of being made up on the run.

3. The Wife said that she had not made three withdrawals on 17 June 2016.  This was done by her business partner.  She left financial affairs to others.  She was not the biggest shareholder in M Pty Ltd. 

4. The $132,000 transaction on 20 January 2017 was a share purchase by a business partner.  They act as agents to sell materials.  She had not invested any money into that company.  She had no returns from it.  QQ is one of the investors.  Her business partner knows better about these matters. 

The Wife Under Cross-Examination by Counsel for the Third Respondent, Mr T Dang

1. H1 was admitted, being a contract note from 2002.  When it was put to her that the purchase price for D Street, Suburb E was not paid by her husband but someone else, the Wife said her husband paid it.  She said he also paid stamp duty and renovation costs.  He was paying the mortgage every month.  She denied that it was paid by Mr T Dang.  When it put to her that the mortgage was paid by rent from tenants, the Wife said the mortgage was not entirely paid with rent.  She did not agree that the property belonged to Mr T Dang.  She says it belongs to her and her husband.  She denied that Mr T Dang paid any shortfall.  She said she had never seen the agreement allegedly entered into when D Street, Suburb E was bought until this proceeding.  There was no English version.  It was put to her that she had had a copy and removed it from B Street, Suburb C, along with other documents, but she denied abstracting any documents.  She had no comment to offer as to the purported effect of the agreement. 

2. I should interpolate again and say that it is clear from the documents annexed to the Wife’s affidavit that she indeed attended the B Street, Suburb C property and had at some point abstracted a substantial number of documents. 

3. In re-examination, the Wife said she came to Australia in 2004.  Previously, her husband had lived in Mr T Dang’s home.  They bought D Street, Suburb E for their own home.  Her visa had been refused several times.  Mr T Dang lent money to the husband to buy the property (in D Street, Suburb E).

The Evidence of Mr X   

1. Mr X, who gave as his address the address where the Wife lives in R Street, Suburb S, said he is a businessman and a friend and associate of the Wife. 

2. Under cross-examination by counsel for the Husband, he said he had met the Wife in the course of business.  A customer had wanted him to do some work, and he sought her assistance.  This was about 2016.  He was introduced to Mr F Dang.  M Pty Ltd is in construction also.  The Wife was depressed when he met her at R Street, Suburb S.  He did not pay the Wife money.  He denied being in an intimate relationship with her.  He had deposited $50,000 to pay rent and the like expenses.  He might have taken the cash out himself.  Other partners invested cash.  There were a lot of investors.  He runs the company and did not think that there were just two shareholders. 

3. When challenged with a cash withdrawal of $220,000 on 17 June, Mr X says he runs a business in Country RR.  That puts money into M Pty Ltd, and he takes cash to Country RR.  A withdrawal on 7 July, $30,000, was for travel to Country RR. 

4. The Wife was depressed, and he tries to assist her.  She could not pay wages or rent.  $300,000 invested on 15 June was from partners.  He did not pay her to start O Pty Ltd.  He did not know about Mr Y investing $120,000.  This was a person who invested in his property in Country RR.  All the withdrawals were withdrawn by him.  A withdrawal of $269,000 was related to the Country RR in which people invest via M Pty Ltd. 

5. The Wife has a 10 per cent interest in the business.  She helped him with sales.  He said that “we run the business and many people are involved”.  He said that they had joint access to the bank account, and everybody has a salary.  The Wife is paid $3000 per month.  The Wife has not invested in M Pty Ltd.  

6. Cross-examination by counsel for the Second Respondent did not produce anything of any moment.

The Opening and Evidence of the Husband 

1. Counsel for the Husband submitted that the assets the parties now have are important.  The Wife kept the business, and the Husband suffered financially and was unable to pay his creditors.  His debts should be shared.  The Wife had been deceitful and dishonest about the assets and her interests.  She had not revealed any shares.  He tendered as exhibit G2 a number of company records relating to the Wife. 

2. The Husband was called and adopted his affidavit as true and correct.

3. Under cross-examination by counsel for the Wife, the Husband said he met the Wife in 1993 and they commenced a relationship in about 1999.  They were intimate before that, in a boyfriend and girlfriend relationship from 1993.  She was married when they first met but did not tell him this.  He was aware she was just divorced in 2003.  They had few assets when they came to Australia and he was the only one who ran the business.  He denied that the Wife had tried to boost sales.  Prior to 2011, the Wife was not involved in any business.  At that time, he had to work from 7:00am until 5.30pm.  She did not get up until late afternoon every day and did nothing to help the business between 2004 to 2011.  She only cleaned D Street, Suburb E occasionally.  He did most of the household work, including the gardening and she had not organised the tenants.  She did not cook at all.  He did the handwashing, including her underwear.  A lot of her clothes were fine silk. 

4. The husband said that he became unable to work shortly before the separation.  He had done the heavy work and done the renovations.  He has hypertension and is 61 years old. 

5. He was taxed with the document provided to the immigration department in 2001.  He conceded this document and said it was for the purpose of sponsoring for the Wife to come to Australia.  This was not after he had found out that she had been married.  He had run the family business in City OO and she was a waitress.  When it was put that she had brought up his son, the Husband said she was exaggerating.  He said he had to sign the document for immigration purposes. It is clear that he was complicit in a false document to be provided to the Australian immigration authorities. 

6. The Wife had asked him to add her being a manager and he did not object.  He had told Mr T Dang to put in about her being a manager.  She wanted to come to Australia. 

7. He had come to Australia in 1998 and the D Street, Suburb E property was bought in 2002.  It was not a loan from his brother but it was an investment for his brother, who paid the deposit.  When asked why the property was put in his name only, he said he had repaid the loan.  His brother has a share.  He had signed a document in 2002 and had a copy.  She had taken all his important documents, including his passport.  He had the original 2002 agreement.  It was typed in the computer by his brother, who scanned it on the day.  It was signed at his home, Street R, Suburb S.  He was living there at the time.  When it was put to him that the document was a fraud, he said the Wife was lying.  The original document was with their bank statement.  He and his brother signed.  His brother’s wife was in Hong Kong.  The witness is Ms AA, who is a friend of his brother.  He met him in Australia but does not know where he lives.  He met him several times but not much.  After they purchased D Street, Suburb E, he moved in.  The last time he saw Ms AA was in 2003.  His brother had told him that Ms AA had passed away or gone to China. 

8. When asked when he had told Mr T Dang about refinancing D Street, Suburb E, the Husband said he never told him because he knew he would not agree.  After separation, his brother helped him.  Ms Choi then told Mr T Dang about the borrowing.  This was in late August to early September 2015.  He heard her tell him.  She was constantly complaining about him not giving her money and told Mr T Dang about the redraw, which made him angry.

9. The Husband eschewed his first affidavit, saying that some of the expressions were not his original intention.  He conceded that there was no copy of the 2002 agreement in his first affidavit.  He talked about it with the lawyer but she did not put it in.  He denied again that the document was forged.  I should interpolate again at this point and say that the Husband, like the Wife, was non-responsive and evasive in many of his answers.

10. The Husband said he lived in D Street, Suburb E from 2002 until 2008.  The Wife moved in when she came to Australia.  The renovations were completed before her arrival.  The original property had four bedrooms but they turned it into seven bedrooms.  The work was all done by him and friends and in two months.  This increased the value of the property.  His brother paid all the renovation fees and helped with the plastering.  Before this matter, he was close to his brother but now he is not happy. 

11. It was put that he had not given the $230,000 to his son as a gift for the B Street, Suburb C property but the Husband said this was not true.  After he divorced his son’s mother, she left him all her assets.  She told him all her assets were for her son.  In an answer that seemed difficult to understand, he appeared to suggest he had spent the money allegedly given to him by his first wife.  He sold her business in Country FF and spent the money.  The Wife has very expensive tastes and she has a number of handbags, each of which cost $4,000 to $5,000 (something I would tend to accept).  He denied that Mr F Dang was gambling.  He had been to Western Australia in 2006-7.  When asked why he had given $230,000 for a house he was not living in, the Husband said he did not understand the question.  He gave his son $230,000 because he wanted his mother’s money back.  He was in Perth. 

12. He was told to write the agreement by Ms Choi.  She had threatened divorce.  He could not afford to divorce her.  He could not resist her constant harassment.  There was no oral agreement with Mr F Dang.  Mr F Dang said he had grown up and wanted to start a business and wanted his mother’s money back (it should be noted that this assertion was not in the witness’ affidavits).

13. He had told his son he would think about it and Ms Choi did not object (something highly unlikely in the circumstances).  When asked if his first wife gave him money, the Husband said they were running businesses in Country FF and had property in China.  They divorced in 1996 and she gave him money for their son. 

14. When cross-examined about the will dated 8 June 2009, the Husband said this was forced on him by the Wife because of his poor physical condition.  He wanted to go to hospital and she would not let him.  He wrote down the words as she said.  He had to do it.  She knew D Street, Suburb E had been bought with his brother. 

15. It was put that the Wife had found out B Street, Suburb C was in Mr F Dang’s name in 2009.  The Husband said of course, it was bought by his son.  He had not called his son and accused him of cheating him.  The Wife threatened to divorce him or to damage the property to make him sign the agreements and will.  He was afraid of her harming herself at the time.  She gave this agreement to him.  He cannot write English letters and had not signed it.  He signed, sent it and scanned it.  The signature and date were signed by his son.  The names were written by the Wife but it was signed by his son.  She was happy when his son signed it. 

16. When taken to D6, the Husband said he signed it.  After his son signed the copy of the scanned agreement, the Wife was happy.  She presented document D6 again and forced him to sign it.  This was because he would not sign the first one.  He refused her proposal and gave it back.  Then she threatened divorce and smashed the kitchen.  He did not have any other option.

17. On 13 July, she telephoned his son and told Mr F Dang that his father was about to die and to please come back.  His son came to Melbourne and came to his house.  He was very surprised.  The son said he had heard that he was sick, and he explained his situation.  His son was very angry with him and accused him of lying.  He told his son to sign the document.  There was a huge quarrel and the son left.  Then Ms Choi came out and said if he did not sign the document, she would get a divorce.  He went to his son and pleaded with him to sign it.  He knelt to his son.  His son signed the agreement.  He, his son and the Wife went to the pharmacy, and she insisted on coming.  He did not understand document “C-9”.  Everything had been provided by the Wife.

18. The Wife had forced him to place a caveat on the B Street, Suburb C property on 8 October 2010.  She had the conversation with a lawyer.  The letters written to him by U Law Firm was drafted by Ms Choi.  He knew that Ms G was the mother of his child.  He removed the caveat on 18 August 2015 when he separated from the Wife.  B Street, Suburb C was renovated by him and his son, and they moved in after the renovations were done.  Both B Street, Suburb C and D Street, Suburb E were rented out.  He did not know what a cheque for $39,178 to BB Group was about.

19. He had been to the bank with Ms Choi.  His son was working in Perth.  He was selling land in Western Australia.  The Wife had said that they could buy land in Western Australia, but they did not buy any.  He wrote a cheque to the agent.  When it was put that land in Western Australia was held by P Pty Ltd, the Husband said this was his son’s company.  His son did not wish to proceed with the purchase.  When asked what happened to the cheques, he said they were paid to the agent, but the money was paid back to him.  I interpolate to say I think this is probably correct.

The Evidence of Mr CC

1. Mr CC was interposed at this point.  He adopted his affidavit as true and correct.

2. Under cross-examination by counsel for the Wife, he said he had worked for O Pty Ltd from January until August 2015.  He was not sure when she took over the company.  The Wife could work afterhours.  He came and opened the business, and the Husband often left.  90 per cent of the time, she stayed in bed until noon and came down in pyjamas.  This was at GG Street, Suburb HH.

3. It should be noted that much of Mr CC’s affidavit is to an extent conjectural, but the one part of his evidence I do accept, because it was given with conviction and accorded, indeed, with my own impressions of the applicant, was that most of the time she only got up late.  She seems to have been largely in control of the business as Mr CC suggested.

The Evidence of the Husband (continued)

1. The Husband conceded the Motor Vehicle 1 was in his name.  She seized it from him and declined to pay for infringement costs.  All the money was from O Pty Ltd including his personal income.  She did not pay him salary or tax.  It was always her who drove the car which had a five-year loan.  She deliberately broke traffic laws.  The Husband conceded that there was a criminal contested hearing in respect of family violence, and when it was put to him that he was found guilty of assault, he said the judge made the ruling.

2. He denied that an Intervention Order had been taken out and said she was aggressive to him.  When it was put to him that he was bankrupt, the Husband said he had worked for her for three years without being paid.  He worked 10 hours per day, but she said the company did not make profits.  She had spent $4,000 -$5,000 on a single luxury bag and his credit card had paid for her cosmetics and other expenses.  She had used his credit card.  I would interpolate again and say that this evidence was given with conviction and I accept it.

3. He said that he had paid the mortgage and that they collected rents to do so.

The Husband Under Cross-Examination by Counsel For The Trustee

1. This cross-examination had the obvious difficulty that much of the cross-examination was understandably cross-examination on documents.  When compounded by the interpretation process, things became hard to follow.  Counsel pressed as to where the witness Ms AA was.  The Husband says he did not know where he was.  He had no direct contact details.

2. When asked why the agreements were not signed before a Justice of the Peace or other authorised person, he did not know.  When asked why he did not tell the Wife about it, he said she was not much here at that time in 2003.  It was put to him that in his Financial Statement he had asserted a 50 per cent interest in the D Street, Suburb E property, and the Husband agreed with this.  When it was put that his Statement of Affairs said that he owned all of it, he said he would be the one who was paying the loan.  He conceded that in his first affidavit, he had suggested that half the proceeds of the sale should go to his brother and in his second affidavit half the net capital gain.  The Husband said you have to deduct his deposit loan and then share the remainder.

3. When it was put to him why there were four different stories, the Husband said the contents of the agreement were the same.  They were just different means of expression.  It was put to the Husband that if the written agreement was true, it said there was no mortgage without prior consent.  He said he did not tell his brother.  He was extremely tight on cash flow.  He admitted, in effect, ripping his brother off.

4. When asked why his brother was not put on title to the D Street, Suburb E property, the Husband said this was due to his limited English.  He asked a student to help him out.  It was put to him that the reason for this was so he could obtain the first home owner grant, and the Husband conceded that this was so.  He had not told the bank that his brother owned half the property when he obtained a mortgage.  He had talked about the issue with his broker and told the broker they had purchased it together.  His brother helped him get the mortgage.

5. When asked why he had not told credit card providers that his brother owned the property, he said the bank never asked.  They just asked him to fill out forms.  He is still receiving rent from the property and is still paying the mortgage.  It is about $2000 per month.  He does not have an income other than the rent.  He said he had not made any tax returns since 2009.  The company in Western Australia is in debt.  He went with his son to Western Australia.  The company owes him $113,000, and that company is bankrupt also.

6. Counsel asked why he did not tell his brother he took $82,000 from the D Street, Suburb E property.  The Husband said his brother would not agree and he did not dare tell him.  When it was put to him that he had treated the property as his own, the Husband said he has a share but they had a private agreement.  His wife told his brother about the borrowing in 2015.  He conceded he had received some cash but not much.

7. Under cross-examination by counsel for the Mr F Dang, the Husband said he was aware of the caveat of Ms G.  She is not Mr F Dang’s girlfriend.  He was not aware of the caveat over the B Street, Suburb C property by Ms G.

8. Under cross-examination by counsel for Mr T Dang, the Husband was not sure whether mortgage statements were kept.  The outstanding on D Street, Suburb E is a little bit over $250,000. 

9. In re-examination, the Husband confirmed that he had got a student to help him with his Statement of Affairs.  In respect of the agreement at page 21 of the bundle tendered as “M-1”, the Husband said the date was in his handwriting.  He only wrote the Chinese characters, and the rest was written by the Wife.  None of the writing at page 17 of “M-1” was his.  When asked who had prepared the documentation that was taken to the pharmacy, the Husband said the Wife prepared it and gave to him.  She had taken him to the office of U Law Firm once in Suburb DD.  Counsel asked which branch was the banking done at.  He said it was at D Street, Suburb E because it was close to his business.  He received no salary from O Pty Ltd and worked there from 2011 until early September 2015.  He would not have been in debt if he had been paid. 

The Evidence of the Second Respondent, Mr F Dang

1. Mr F Dang was called and adopted his affidavits as true and correct.

2. Under cross-examination by counsel for the Wife, Mr F Dang admitted that he had given a brief statement to Mr Guo for the affidavit prepared on 6 February 2019.  When it was put to him that there was no reference to his mother being involved in the Suburb JJ purchase, he said at that time he did not think to mention it.  The first mention of his mother was in the affidavit of 4 December 2019.  His father gave him $200,000.  When he was asked why he had not told his father that his mother had an interest in the Suburb JJ property, he simply failed to respond.  He said he had not mentioned borrowing from his mother.  When he purchased Suburb JJ , his mother gave him the money.  They reached an agreement.  His mother mentioned that they should have used a lawyer.  They sold the Suburb JJ property for a profit, and he would be given 20 per cent of that to make further purchases. 

3. Regrettably, I should interpolate yet again and say as with the other witnesses, almost from the inception of the evidence, this witness was likewise uncontrollable and generally refused to answer questions in any sort of direct way.

4. He understands that the Wife wants a part of the B Street, Suburb C property.  There was no need to tell the Wife that his mother had 80 per cent of the B Street, Suburb C property because he knows what sort of a person she is.  It was put that this had not been revealed until the day before trial, and  no convincing answer was given.  His answers about the filing of the caveats were impossible to follow.  He said his father would not have mistaken his mother for his girlfriend in the correspondence relating to the caveat.  He believed that this was instigated by the third party (plainly, the Wife).  He bought the B Street, Suburb C property to develop it. 

5. When he was asked if he had given his mother her share of the proceeds of the Suburb JJ property, Mr F Dang said that it was his intention to continue their investment.  They told the lawyers to keep the money in his name.  Other property was bought in Perth, Western Australia in 2007 to 2008.  He had $650,000 left over.  His property in Western Australia cost about $850,000, and he still has it.  There was capital gains tax to pay as well on Suburb JJ.  They consulted an accountant who said that as long as it was owner occupied, there would be no capital gains tax paid.  He denied that the $230,000 from his father was a loan.  It was not his loan.  He denied that this was an investment.  He knew his father was refinancing D Street, Suburb E and knew his uncle owned the property.  In theory, this was a breach of the agreement with his uncle.  He went to his father and asked for money.  His mother had left everything behind for him, and he told him that it was for him.  He needed to get money the father needed to give back to him.  He would still have bought the B Street, Suburb C property as it was a good investment.  He said he had money of his own to make the purchase.  He denied knowing about the father’s caveat being in place from 2010 to 2015.  His father had told him later.  He denied that his father had accused him of cheating him in 2009.  There was an argument about signing the nonsense documents.  Everybody knew he was looking to purchase.  He denied that his father had put in $230,000, and he had put in $160,000.  He denied that B Street, Suburb C was a joint venture with his father.  He paid $1.15 million, and 80 per cent of it was mortgage.  The mortgage was $930,000, and the balance was about $300,000. 

6. When it was put to him that he had told the police that his mother had invested $100,000 and his father $180,000, Mr F Dang did not respond.  He said the Wife came back a few days later and smashed the bathrooms.  Later, he went to the police, but he told the police not to press charges.  His father had not begged him not to press charges.

7. His father and the Wife moved into B Street, Suburb C after it was purchased.  There was no agreement that the father would be entitled.  There were not extensive renovations.  He extended two rooms to get more rental and told his father to fix it.  The Wife did not do it and would not know how to do it.  His father had spent his labour, but not his own money. 

8. The witness was taken to page 17 of “M-1”, the Chinese version of agreement number 1.  He said he had signed this and dated it 8 July 2011.  He faxed it to his father.  He had read it before he signed it, but it was not true.  When asked why he had signed it, he said because his father told him that Ms Choi was pressing him to sign something.  If not, there would be arguments, and there was a threat of divorce. 

9. Mr F Dang said that the Wife had sought some of the proceeds of the Suburb JJ property.  He knew what sort of a woman she was.  His father was begging him to sign these kind of documents.  He pities his father greatly.  He said he could not live without Ms Choi.  He had come to Melbourne in 2011.  Ms Choi had called him and said his father was ill and was about to die.  This evidence was given with conviction, and I accept it.  He went to their house.  He entered the house and found that his father was not greatly ill, and the Wife disappeared into her room.  The father bought him documents he wished to sign, but he had not mentioned this in his affidavit.  He had returned to his own home, and his father came to see him.  His father was crying and begging and knelt down.  He felt pity for him.  They picked up the Wife and went to the pharmacy together.  He was not scared of the Wife, but felt she is horrible.  He signed totally for his father’s sake.  This was the joint investment agreement document. 

10. He conceded signing document “D-9”, being page 19 of “M-1”.  He said he bought this land and it would be very profitable.  Ms Choi had not directly discussed this with him.  They did not buy land in Western Australia.  He did not want to be involved with them.  P Pty Ltd is his company.  He did not receive the cheques, and he was determined not to buy.

11. When his father moved in, he had collected the rent for him.  The rent was enough to cover the mortgage, which is why he had extended two rooms. 

12. Cross-examination about the bank accounts relating to the property was, I confess, all but impossible to follow.  Mr F Dang denied, however, that O Pty Ltd was all made up.  He said all of them knew that he bought the B Street, Suburb C property by himself.

13. Under cross-examination by counsel for the Trustee, it was put to Mr F Dang that there were two versions, namely, that his father got all his money and gave him $230,000 or that his mother gave him the money for the first property.  Mr F Dang said these were two different eras.  One was in the 1990s, when his mother left all the money to his father.  It was pointed out that in paragraph 14 of his first affidavit, Mr F Dang had deposed that his father gave him the money.  No very convincing answers were given.  His father had given him $230,000.  His own mother had joined with him to purchase the property in B Street, Suburb C.  When he asked his father for money, he knew there was money left by his mother to his father.  His father had spent all the money.  He knew exactly how the money was spent.  Ms Choi and his father spent it.  When asked why there was no mention of his own mother until his affidavit on 4 December 2019, Mr F Dang said his mother would be very angry.  Her health is not very good.  They had documents prepared by a solicitor, but he could not find them.

14. In re-examination, Mr F Dang said he did not want to involve his mother in such a mess.  His mother said they should not let the father and Ms Choi into the B Street, Suburb C property.  He often went to Western Australia to work.  Mining was not doing great, so he stopped going there. 

The Evidence of Ms G

1. Ms G adopted her affidavit as true and correct. 

2. Under cross-examination by counsel for the Wife, she said that she was involved in the Suburb JJ property.  She had been separated for many years.  She had left all her possessions with the father for her son.  She was about 33 at the time and was a manager.  When it was put to her that this would be the money for Suburb JJ , Ms G said this was not relevant.  The money for Suburb JJ belonged to her Country FF home.  She gave the Suburb JJ property to her son for him to develop his business. 

3. Once again, I should interpolate and say, like the other witnesses, regrettably, this witness was equally impossible to control.

4. Ms G confirmed that her son had put money into the Western Australian property.  At that time, she was still sending him more money.  Then the B Street, Suburb C property was bought.  She gave him $300,000.  She transferred the money to him in two slots in 2008.  After the sale of Suburb JJ in about 2006, she was still sending him money to develop his business.  It was also her intention to develop a business here.  Her former husband transferred money to her son.  She denied that there was only a $230,000 investment into B Street, Suburb C.  It was bought by her and her son.  If she had known her ex-husband was putting in money, she would not be in this joint venture. 

5. When it was put that she was aware of Ms Choi’s claim before the court proceeding, Ms G, whose answers were given in the most vituperative way, said that it was nothing to do with Ms Choi.  Her son had mentioned the proceeding.  When asked how much her son had put into B Street, Suburb C, Ms G said the agreement was 80/20.  He was to put in funds over her $300,000. 

6. Under cross-examination by counsel for the Husband, Ms G said she managed a business in Country FF.  When she divorced, she had taken none of the property.

7. In re-examination, Ms G was asked how they reached an agreement for 80/20, and she said her lawyer at the time set it up.  20 per cent was for him to undertake the management of the property.

The Evidence of the Third Respondent, Mr T Dang

1. In opening, counsel asserted his client’s interest in the D Street, Suburb E property.  It was put that there were two drawdowns, one in the sum of $230,000 and one in the sum of $84,000. 

2. Mr T Dang adopted his affidavit as true and correct.  In evidence-in-chief, he said he bought D Street, Suburb E in 2002.  At first, the mortgage was $252,000, but his brother refinanced with the bank without his permission or knowledge.  Each month, he pays back $1,000 more.  The mortgage was $480,000 after the first refinancing, and after the second time, it was up to $570,000.

3. Under cross-examination by counsel for the Wife, Mr T Dang remembered the letter in 2000 to the Department of Immigration.  When it was put that what was in that letter was true, Mr T Dang said that he wrote to the best of his knowledge what he knew.  His brother had told him she was a general manager. He had heard the evidence about the agreements but had no involvement.  He used to be a professional and used to be a professional but did not have a qualifications.

4. When asked why he was not put on title, he said one reason was because of the first home owner grant.  He already possessed several properties, but his brother did not.  He paid the deposit and did the settlement and submitted all his financial records.  The balance of the mortgage was $252,000.  $113,000 was what he put in, and the balance was the mortgage.  He had not placed a caveat over the property because he trusted his brother.  They had grown up together and he had never lied to him.

5. He was the one who created the agreement dated 5 June 2002.  He, his brother and a witness signed it.  This was at Street R Suburb S, which was his home.  His wife was not there and only one original document was signed.  When it was put that he had kept the original, he said who kept the document was not important.  What matters was the truth.  He had a copy of the document in his computer, which he had scanned to his brother.  He created the document in his computer.  The Wife took away all the documents.  The witness was Ms AA.  The Wife had joined him as a respondent to the proceedings.  Ms AA was a friend of his who he had known for six to seven years.  He last saw her towards the end of 2003 and had not heard from her since.  He had heard she might go back to China (it should be noted that the Husband put the gender of the witness as a male). 

6. Ms AA was an international student.  When asked why they had not go to a Justice of  the Peace or a lawyer, Mr T Dang gave an answer to the effect that it was common business practice to use a lawyer but he wholly trusted his brother.  He said he first heard of the redraw in August 2015, when he was told this by Ms Choi.  It should be noted that this means that paragraph 11 of his first affidavit is misleading or wrong.  He said he was always angry and is still angry.  In his affidavit, he used the word “loan” but that is in English.  It is not necessary that it be repaid. 

7. When it was put to him that it was a joint investment in B Street, Suburb C, Mr T Dang said it was never a joint investment. 

8. When asked about the $83,000 (sic) refinancing, Mr T Dang said he only found this out in this proceeding.  His brother had not told him earlier.  Since the first refinancing, he has not received bank statements.  He was not aware that his brother changed the address.  It was not his intention that the money provided was a loan with interest. 

9. Mr T Dang conceded there were extensive renovations in D Street, Suburb E but these were not undertaken by Ms Choi.  She was not a plasterer or tiler.  The renovations were done by his brother before 2004, when the Wife arrived. 

10. Yet again, I am sorry to have to say that the witness was just as exaggerated and self-serving and non-responsive as the others.

11. It was put that the Husband had repaid his loan by doing substantial renovations at Street R, Suburb S but Mr T Dang denied this.  He said he provided 20 per cent of the property (I took this to be the D Street, Suburb E property) and paid for stamp duty and renovations.  His brother was responsible for collecting rent and paying the mortgage.  He only topped up when there was a shortfall.  He did not tell his own wife about his brother’s redraw until this proceeding.  He possesses multiple investment properties.  He had told his wife about the $83,000 redraw but could not remember when.  It was on Tuesday or Wednesday of this week. 

12. Under cross-examination by counsel for the trustee, Mr T Dang was asked why he had no proof of the initial investment. He said he had no formalised evidence but he had provided the plans. When asked who was present when the agreement was signed in 2002, he said his brother and Ms AA.  Most of his properties are owned jointly by him and his wife.  Both are registered on mortgages.  When asked if Ms AA was a waitress or a student, he said there was no mention of her working in a restaurant.  He has three or four investment properties.  He had engaged the renovators for D Street, Suburb E.  Then his brother and Ms Choi had helped collect the rent when he was absent. 

13. Under cross-examination by counsel for Mr F Dang, he said he always believed that Mr F Dang owned B Street, Suburb C.  He could not remember if this had been said in the presence of Ms Choi.  He denied paragraph 61(g) of the Wife’s February 2019 affidavit. 

14. Re-examination did not take the matter further. 

The Evidence of Ms J

1. Ms J is a professional.  She adopted her affidavit as true and correct. 

2. Under cross-examination by counsel for the Wife, Ms J said that the Husband had not been long in Australia in 2002.  The money put forward was invested, not a loan.  The property was bought for $315,000, and they were going to keep it for about 20 years.  She was working in Hong Kong in 2001 to 2002.  Everyone was residing at Street R, Suburb S .  They decided to help her husband’s brother to find somewhere to live, and she requested her husband to draft an agreement.  She did not sign it, but it was discussed with her at her house.  It was agreed that they could pay the deposits and legal fees.  They had the money to pay 20 per cent.  The brother would get 50 per cent for collecting rent and managing the property.  She is a professional, but her husband manages their investments.

3. When asked if she was aware that D Street, Suburb E property had been refinanced, she said she had heard this now.  It was $230,000.  She had heard this last Tuesday.  She had not told Ms Choi it was a loan.  She was not aware that her husband had been told about the redraw of $230,000 in 2015.  She did not know about $80,000.  Mr T Dang had told her the previous Tuesday.  There were no discussions with the Wife about this.  Ms Choi talks to her all the time, most of the time for over an hour.  The loan was not repaid by work done by Ms Choi and her husband.

4. Under cross-examination by counsel for the Trustee, Ms J said that she paid $31,500 for the deposit.  Other documents were with their solicitor.  25 per cent included miscellaneous costs.  The Husband would receive 50 per cent of the margin on sale.  She had not lodged a caveat to protect her interests. 

5. Under cross-examination by counsel for the Husband, Ms J said that she first met Ms Choi when she came to Australia.  She had not met her before the property was bought. 

Final submissions of Counsel for the Trustee

1. Counsel submitted that the Husband was the sole registered proprietor and the mortgagor of the D Street, Suburb E property. He had contributed $230,000 to purchase the B Street, Suburb C property. The Husband’s share would go to the trustee. Section 42 of the Transfer of Land Act 1958 (Vic) gave paramountcy of title. The D Street, Suburb E property was clear, save for the Wife’s caveat. The B Street, Suburb C property was less clear. There was a $230,000 investment, and a caveat lodged.

2. Mr T Dang and his brother submitted a document from 2002.  At best, this document is suspicious, and at worst it was a sham.  Any claim for constructive or resulting trust was out of time because of the statute of limitations.  Mr T Dang was a professional and landowner.  He had not lodged a caveat.  He had not contributed to the upkeep or the collection of rents in respect of the D Street, Suburb E property.  He had only contributed $31,500.  There was no mention of any agreement until after the Husband went bankrupt in 2019.  The agreement was brought into evidence in February 2019, and the person who signed it as a witness was apparently in China.

3. There was a remortgage of $230,000 for B Street, Suburb C and a further $83,000 for Western Australia.  The will left the Husband’s properties to the Wife.  There were four different versions of the agreement.  The document was a sham.  It was created this year to reduce the size of the pool.  The Husband put in $230,000.  There was no evidence that Ms G had contributed $300,000.  There were joint venture agreements, but the B Street, Suburb C joint venture document was said to be under duress.  The father had lodged a caveat.  The son had never sought to lapse the caveat. 

4. The presumption of advancement applied, and the monies were a gift.  (Counsel referred to authority in this regard).  The presumption can be rebutted by evidence.  The father lodging the caveat rebutted the presumption of advancement, and it was therefore not a gift.  The bankrupt gets an interest pursuant to an express trust.  The joint venture agreement created an express trust.  There should be 59 per cent to the Husband and 41 per cent to the son.  Alternatively, there was a constructive trust.  The Husband acted to his detriment by paying money to his son.  The son got the mortgage as a result.  The father, at the very least, should get back the money he had invested.  Alternatively, there was a resulting trust of some $230,000 in favour of the Husband.

5. Mr T Dang has no interest in the D Street, Suburb E property, which should be divided between the Husband and Wife.  The Husband should get his proper proportion of B Street, Suburb C, and both properties should be sold. 

Final Submissions of Counsel for the Third Respondent, Mr T Dang

1. Counsel submitted Mr T Dang did assert an interest in the D Street, Suburb E property.  The total cost was $330,000, including stamp duty.  $252,000 was obtained from the first mortgagee, but the $42,000 that was otherwise unexplained must have come from Mr T Dang.  Mr T Dang had a resulting trust interest in the property.  The statute of limitations did not apply.  There had been an agreement since 2002, which was consistent with the parties’ conduct.  The Husband took the bank loan and mortgage, and the mortgage was paid with the rent.  The property was not sold, as it was a long-term investment.  The document was drawn up by the families, and there was nothing sinister about it.  The Husband was entitled to half the capital appreciation.  Mr T Dang  was entitled to everything else. 

2. The Husband had drawn down $230,000 and $84,000, but Mr T Dang  did not know.  This was unconscionable conduct, which should be taken into account.  These two amounts should be repaid together with interest since the drawdowns.  D Street, Suburb E was held on trust, pursuant to an agreement.  Counsel sought a declaration that Mr T Dang had an interest in D Street, Suburb E and also of the B Street, Suburb C property. 

3. No submission was made that articulated in any clear way why Mr T Dang should be held to have an interest in the B Street, Suburb C property if he was repaid the $230,000 and $84,000.

Final Submissions of Counsel for the Second Respondent, Mr F Dang

1. Counsel submitted that the chronology was indicated in her amended Outline of Case document.  The proceeds of the Suburb JJ property of some $400,000 went to B Street, Suburb C.  Money from Country FF went to Western Australia.  There were declarations of trust in respect of the Suburb JJ and B Street, Suburb C properties, and the title showed Mr F Dang as the registered owner.  The B Street, Suburb C property should be excluded from the pool.  There are agreements in 2011 about Western Australia, as well as B Street, Suburb C.  These agreements were signed under duress.  The Wife’s application should be dismissed.  Counsel sought a declaration in respect of the ownership of B Street, Suburb C and the removal of the Wife’s caveat.  Counsel pointed to the Mr F Dang’s first affidavit.  He did not want to involve his mother at that stage.  The declarations of trust were contemporaneous documents. 

Final Submissions of Counsel for the Husband

1. Counsel submitted there should be no adjustment at all in favour of the Wife.  He was a 61 year old tradesman in poor health.  If Mr F Dang  keeps the D Street, Suburb E property, the Husband will have the benefit of negative gearing and 50 per cent of capital gain.  There should be no adjustment unless it is just and equitable that there be one.  It is not just and equitable here.  The Wife’s Financial Statement declares nothing.  She was evasive under cross-examination.  The documents proffered should be given little weight.  The joint venture agreement in 2011 was years after the purchase.  The Husband was struggling to survive and signed to appease the Wife.  The Husband did not understand his Statement of Affairs.  He failed to file tax returns. 

2. The Wife had failed in her obligations of disclosure and has interests in multiple companies.  Bank records show her business activities which she had not declared.  Since family violence in August 2015, the Wife has said this affects her capacity to work and her business is bankrupt.  Between January and March 2015, O Pty Ltd achieved $150,000 of income, not including cash receipts.  Between April to June 2015, the figure was $211,000.  Between July and September 2015, it was $227,000.  Between October to December 2015, it was $282,000.  Over two years, the cumulative total was $1.93 million.  It was then sold to M Pty Ltd.  M Pty Ltd then made $2.3 million over two years.  The Wife said that she had no access to bank accounts but Mr X had disagreed.  There was $1.1 million in cash.  The Court had no idea about the income or needs of the Wife. 

3. The caveat filed ostensibly by the Husband was not right.  The Husband says the Wife instructed him to do so and forced him to sign.  He withdrew it as soon as possible after separation. 

4. The Wife forced the Husband to sign when he was vulnerable.  The Wife has not proved that the presumption of advancement is rebutted.  The Wife found out she was not on title in 2009 but had done nothing for 10 years. 

Final Submissions of Counsel for the Wife

1. Counsel referred to section 8 of the Limitation of Actions Act 1958 (Vic). Section 8 of the Limitation of Actions Act 1958 (Vic) provides that actions to recover land can be pursued within 15 years after the right of action accrues.

2. Ms G had an interest in the Suburb JJ property, which was then effectively transferred to Western Australia.  The Husband’s money was put in before.  The marriage had lasted from 2003 to 2015.  The Wife was 47 and the husband was 61.  There was no medical evidence as to the parties’ health.  According to Mr X, the Wife is paid $3,000 per month.  The Wife has no superannuation to provide for her future needs. 

3. Both B Street, Suburb C and the D Street, Suburb E property have been valued.  The Wife still has the Motor Vehicle 2, which has now been paid off but it is still registered in the Husband’s name.  Both parties contributed through the business.  There was no request for valuations of the companies in which the Wife had had an involvement.  The Wife had performed the usual domestic offences by way of contributions, which should be assessed as equal.  Counsel conceded that the Husband’s more advanced age made a slight adjustment appropriate.  The D Street, Suburb E property was registered in his name but the joint venture document was a fraud.  The Husband refinanced in 2008 by redrawing $230,000 to invest in B Street, Suburb C.  He then withdrew $84,000 in 2011, which was a clear add-back.  Mr F Dang had not protected his position, even though he knew about the $230,000 in 2015.  Mr F Dang would have had the original agreement.  No witness has been produced. 

4. The Husband’s interest in B Street, Suburb C was bound by the investment agreement and effected equal shares and was the subject or should be the subject of a constructive trust.  The Husband believed he was entitled.  Mr F Dang borrowed from the Husband and borrowed from his mother also.  Counsel pointed to the will dated 8 June 2009 and the agreement number 1, faxed back from Western Australia.  He pointed to the pharmacy agreement.  The threat of divorce was not enough for duress.  The Husband placed a caveat, which was prepared by his solicitor.  There was a clear intention to invest.  The Husband had been found guilty of assault and there had been an Intervention Order against him. 

Some brief additional remarks about the evidence

1. I have already referred in unflattering terms to the evidence of a number of the witnesses.  I should make it clear at this stage that Ms J was no better than any of the others.  It is always regrettable and inherently undesirable to have to make observations about witnesses that may be distressing to them.  In this case, it simply cannot be avoided.  All the primary witnesses (that is to say, everyone except Mr CC) gave their evidence in a matter in which heightened emotion was very evident.  Albeit that their evidence was being interpreted, the vigour of the addresses they made, often accompanied by physical gesticulation as well, left me in no doubt as to the significant animosity that had ranged between the various parties. 

2. None of the witnesses was able to be controlled by counsel.  All the witnesses were determined to say whatever they wanted, whether it was responsive to the questions put to them or not.  Notwithstanding the cultural issues involved in dealing with persons all of whom were of Chinese origin and ethnicity, and making every allowance for the fact that there may be different commercial approaches within that culture, the fact is that each and every one of the witnesses impressed me as being utterly unconcerned to tell the truth.  I have no doubt that the parties have executed documents from time to time that do not mean what they say and the forensic challenge in trying to strain from this tangled web any kind of coherent factual narrative is a significant one. 

Findings about the facts

1. Doing the best I can, it seems to me reasonably clear that the Wife and Husband first met in about 1993, when she became an employee at the family business run by the husband’s family in City OO, China.  Both of them were at that time married to other people, although I accept that the Husband did not know that the Wife was in fact married.  They became intimate relatively quickly but he went to Country FF in an endeavour, it would seem, to reconcile with Ms G, and after being there for some years, in 1998, he came to Australia. 

2. It is Ms G and the Husband’s case that in some sort of unspecified way, Ms G gave all her interests in business or otherwise to the Husband at the time that he came to Australia to be held, as it were, on trust for her son, Mr F Dang.  I do not accept this evidence.  There is nothing to support it.  Furthermore, Ms G, like all three of the female witnesses, impressed me as a person with an extraordinarily acute and accented interest in her financial affairs.  She did not strike me as being the sort of person who would give anything to anybody, except perhaps her son.  In circumstances where her marriage to the Husband had come to an acrimonious end (see paragraphs 9 and 10 of Ms G’s affidavit), the idea that she would have given all her financial resources to him, even on trust for her son, is quite ridiculous.

3. The Husband had, notwithstanding his absence in Country FF, continued, in some fashion, the relationship with the Wife, and in 1998 the Husband, of course, came to Australia.  He and his son appear to have lived with Mr F Dang and his wife in B Street, Suburb C for some years.  It then apparently occurred to the Husband and his brother to invest in a property at D Street, Suburb E. 

4. I should, before advancing to that, deal briefly with exhibit “C-1”, being Mr F Dang’s letter to the Australian embassy in City EE, China on 12 December 2000 in the context of one of Ms Choi’s visa applications. It describes Ms Choi, in plain terms, as general manager in the family business in City OO.  In his evidence, Mr F Dang professed an insouciant lack of care as to whether what he had written was true and attributed this statement, in effect, to his brother.  I have no doubt that both Mr Dang and his brother were quite prepared to mislead the authorities in this regard.  I note that it is the Wife’s own position that following the husband’s departure to Country FF she did not work while she was waiting for her visa.  For what it is worth, I think that Ms Choi did become a manager working for the Dang family interests at some point but that the document in 2000 is almost certainly, at least in part, untrue.

5. The next document it is appropriate to deal with is “C-2”, being the statement of current marital status signed by the Husband on 17 July 2001.  This, inter alia, asserts that Ms Choi looked after Mr F Dang while the Husband was working.  Once again, this contradicts his later evidence.  It would appear he was perfectly prepared to misstate the matter to the Australian authorities.  This brings us, then, to the alleged property purchase agreement signed ostensibly on 5 June 2002.

6. The one thing I can say for certain is that the deposit on the D Street, Suburb E property was advanced by withdrawal by Ms J on or about 21 June 2002 because her bank records are sufficiently clear.  The Contract for Sale shows that the $31,500 deposit was due to be advanced on 20 June 2002 (see “-1” to Ms J’s affidavit). 

7. In this context it is apparent that the funds, so far as any actual funds were advanced, to purchase the D Street, Suburb E property clearly came from Mr F Dang and his wife.  Although the way in which this document has come to light is suspicious, I think that the property purchase agreement ultimately means what it says.  I accept that the evidence about the witness to the document, Ms AA is utterly unsatisfactory.  Nonetheless, the events with which the document was concerned took place some 17 years ago.  It is perhaps not wholly unsurprising that neither the Husband or Mr F Dang can now remember much about the witness including, it would seem, their sex.  Likewise, I accept that it is strange that a document of such significance was perhaps not executed and witnessed by a more formally qualified person.  Nonetheless, it would seem that actual cash was advanced by Mr F Dang and his wife.  The agreement was that the Husband would, in effect, get half the capital appreciation for the work that he did on the property and for managing it and ensuring that the mortgage was paid.

8. To my way of thinking, this was scarcely an equal bargain, but it should be noted that the net effect was to give the Husband a genuine capital appreciation over what was proposed, clearly, to be a lengthy investment, in respect of which he had made no capital available at all.

9. I accept that the renovation work was all completed before the Wife arrived in Australia.  These parties are all highly commercial in their nature.  They would have done the renovations to increase the number of bedrooms and the like as a matter of urgency in order to get rent flowing as quickly as possible.

10. As earlier indicated, I reject almost in its entirety the Wife’s evidence that she conducted actual building renovation work.  She did not impress me as being a woman for whom such work would have any attraction, nor has she any skills or qualifications or experience in it.  I note the evidence of Mr CC, which I accept, that the Wife would often come down to work late in the day dressed still in her pyjamas.  She is not a plasterer, a tiler or the like.

11. What Ms Choi is, however, is an extremely astute and forceful personality.  I fully accept that both in respect of the D Street, Suburb E property and later the B Street, Suburb C property she organised and chivvied tenants for their rent and generally conducted the financial affairs necessary to ensure that both mortgages were paid.

12. From this, and I will return to the B Street, Suburb C property in a moment, it is apparent that the Husband and his brother are the joint owners of the D Street, Suburb E property.  It should be noted that the reason why the Husband was solely put on title was plainly so that the parties could fraudulently obtain the benefit of the first home owner grant, yet another incident of conscious dishonesty by the two brothers.

13. This brings us to the B Street, Suburb C property.  I accept the evidence of Mr F Dang and Ms G that they bought a property in Suburb JJ in 2006 and sold it several years later with a net profit of in excess of $400,000.  In some fashion not at all clearly denoted, those profits were sent to Western Australia where Mr F Dang still owns the property which, as I find, he bought with those proceeds.  The first thing to be noted about this passage of events, of course, is that it is entirely inconsistent with the declaration of trust that Mr F Dang and his mother entered into.  That envisaged a division of the profits upon the sale of the Suburb JJ property in the proportions of 80 to 20 per cent.  This is not what they did.  Quite what the original declaration of trust was really intended to do is something I am not able to make any finding about as the evidence is wholly incomplete and unsatisfactory, but on any view of the matter, it did not govern the way in which the parties actually dealt with the relevant funds.  This, of course, is relevant to the execution of the second declaration of trust in 2008.

14. It seems clear beyond any doubt that the Husband gave his son, Mr F Dang, $230,000 in 2008 to contribute towards the purchase of the B Street, Suburb C property.  He did this without the knowledge of his brother and in clear breach of the 2002 agreement.  He effectively acknowledged this in his own evidence. Given the purchase price of $1,150,000 (I accept the Husband rather than the Wife’s evidence as he was more closely involved), the $230,000 would prima facie require a mortgage of $920,000, a figure notably close to that asserted by Ms G and Mr F Dang.

15. By the same token, it seems equally clear that the additional funds that enabled the purchase of B Street, Suburb C, such as stamp duty and the like, must have come from Mr F Dang and his mother. I think such funds, which I can in no way quantify exactly, more probably came from Ms G, as she was the person who had sufficient clear funds to invest in Suburb JJ originally. This, together with their ongoing matters generally, would explain the otherwise incomprehensible declaration of trust entered into in respect of the B Street, Suburb C property. As I find, Mr F Dang obtained funds from his mother without telling her about his father’s investment in the property and took funds from his mother without telling the father of her investment.  Although Mr F Dang was adamant that he could have obtained all the funds he needed either from other sources or from his mother, the fact is that he was more than happy to take the funds from his father.  I do not accept that this was the repayment in some sort of inchoate fashion of funds allegedly given to the father on trust for Mr F Dang by Ms G for the reasons I have already given.  Rather, it was some kind of joint commitment.

16. Exactly what the parties agreed is rendered all the more difficult by Mr F Dang’s dishonesty in concealing, as it were, the sources of the joint funds from each of the other contributors.  It is quite beyond me to come to any definite conclusions.

17. What is clear is that once the B Street, Suburb C property was bought, Ms Choi and the Husband moved in and, as I have indicated, she proceeded to organise and corral the tenants and ensure that the mortgage was paid.

18. I accept the Wife’s evidence that she had thought that the investment in B Street, Suburb C was one pursuant to which she and her Husband would have an interest.  I accept that when she saw bills that suggested otherwise she broached the subject with her Husband and the truth came out.  Having seen Ms Choi give her evidence over a protracted period of time, I have no doubt that she would be a formidable force when her interests were crossed.  I accept, as both the Husband and Mr F Dang effectively say, that she got into her Husband’s ear and gave him no peace until he took steps to execute the documents in 2011.

19. It should be noted in this regard that the caveat lodged by the Husband was plainly one prepared on instructions of the Wife.  The letter from the solicitors about the caveat erroneously describes Ms G as Mr F Dang’s girlfriend.  The only person involved who did not know the true identity of Ms G was plainly Ms Choi.

20. Quite why Mr Dang agreed to sign any of these documents is beyond me.  One of them at least was signed when he was in Western Australia.  He was then, and I accept his evidence in this regard, duped into coming to Melbourne by Ms Choi.  Despite his initial reluctance to do so, a Confucian element of filial obligation ultimately persuade him to sign a document that he must have known was likely to give rise to significant difficulties later.

21. I accept, in the ultimate, the obvious proposition advanced by the respondents that if a joint venture had really been entered into to purchase both a property in Western Australia and a property in B Street, Suburb C, then the agreements would have been entered into contemporaneously rather than some years after the purchase had taken place. 

22. So far as the B Street, Suburb C property is concerned, as I find, the Husband contributed some $230,000 towards a total purchase price of $1.15 million, together with ancillary costs.  Thereafter, from 2008 until 2015, when Ms Choi was finally evicted, Ms Choi and/or the Husband managed the affairs of the property, if I can so describe them.

1. It is clear that Ms G always thought she had an interest in the property.  She lodged a caveat to this effect contemporaneously with the purchase of the B Street, Suburb C property.  As I have indicated, however, her earlier conduct in relation to the Suburb JJ property does not suggest that this was the true state of affairs. 

2. In my view, and doing the best one can to try and disaggregate this impossibly difficult conundrum, I am going to construe a trust in favour of the Husband to the extent of 50 per cent of the B Street, Suburb C property’s value.  As I find, the advancement of $230,000 was indeed in part given by the Husband to advance his son’s interests. He effectively stole from his own brother to do so. Nonetheless, it is clear that as soon as possession took place, the Husband and the Wife moved into the property and at least until 2015, they so to speak, ensured that the loan was paid under the necessary tenants and the rent were obtained to do so. I am unable to say to what extent Mr F Dang may have topped up from time to time. I do not think having seen and heard them give their evidence, that either the Husband or the Wife would have done all of this for nothing. It was plainly contemplated that they would have an interest in the property.

3. In advancing the $230,000, the Husband clearly relied on an assumption which can only, despite the lack of actual evidence, have come from discussions with Mr F Dang. While both of these parties do not now acknowledge the substance of their agreement about the B Street, Suburb C property (in order as I find to defeat the Wife’s asserted interest), the way in which they in fact conducted themselves leads to the inexorable conclusion that the Husband and Mr F Dang intended them both to have an interest in the B Street, Suburb C property.

4. The Husband put up the deposit and thereafter together with the Wife organised affairs so that the mortgage was met. Given, as I have said above, that none of these parties do anything for nothing, the Husband must have relied on an assumption created by Mr F Dang that he (the Husband) would have an interest in the B Street, Suburb C property.

5. Once that reliance is established, as I find it is, the matter moves into the well-established waters of a constructive trust (see Baumgartner v Baumgartner (1987) 164 CLR 137 (“Baumgartner”)). In that case, Mason CJ, Wilson and Deane JJ quoted with approval, the observations of Deane J in Muschinski & Dodds (1985) 160 CLR 583 at p.148:

   His Honour pointed out (at p 614) that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention "to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle".

1. That test is clearly satisfied here. Indeed the facts of this case go further as I find that there was an intention that both the Husband and Mr F Dang should benefit from the B Street, Suburb C property.

2. The next task, as Mason CJ, Wilson and Deane JJ made clear in Baumgartner at p.149, is to determine the terms of the trust.

3. In circumstances where, whatever Mr F Dang’s capacity to obtain funds might not have been, he and/or his mother contributed much less to the purchase of the B Street, Suburb C property than the Husband, and doing the best one can in circumstances that really effectively almost defy proper legal analysis, it seems to me that a 50% division as between the two of them is appropriate. This finding reflects a balancing of the following considerations. Mr F Dang was put on title as sole owner and contributed some (albeit lesser than the Husband and not precisely quantifiable) funds towards its purchase. The Husband contributed the larger portion of the purchase funds and he and the Wife, at least until 2015, organised the tenants and repayment of the loan.

4. I should make it clear that I do not regard the $230,000 advanced by the husband to purchase B Street, Suburb C as a loan.  It was plainly monies advanced in part to further the Husband’s own interests.  The desire now to set these transactions aside is manifestly one designed to defeat the Wife’s interest.

5. That is, however, not the end of the matter.  The $230,000 was improperly obtained from the Husband’s brother, and I accept that he should account to him not only for that sum but for interest from the date of its accrual. It would appear sufficiently clear that the Husband made a further withdrawal of some $82,000 by drawing down on the mortgage on the D Street, Suburb E property without his brother’s permission.  (Various iterations of $82,000, $83,000 and $84,000 suffuse the materials but the written document refers to two investments of $41,000 each). I accept Mr F Dang’s evidence that he refused to co-invest with his father and Ms Choi because of his distrust of her.  That money came back to the Husband in some fashion simply not revealed, and he should, once again, account for it, together with interest from the date of the draw-down.

Conclusions on the Pool

1. In the light of these matters, I find that the property in D Street, Suburb E is owned jointly by the Husband and his brother pursuant to the terms of the 2002 agreement. The Husband is therefore entitled to half the capital appreciation of the property since its purchase.

2. I further find that the Husband unlawfully withdrew $232,000 and $82,000 on the mortgage of that property without his brother’s knowledge or consent.  He must account for those monies, together with interest thereon from the date of the withdrawals.

3. Finally, I declare that the property in B Street, Suburb C is in equity jointly owned by the Husband and by Mr F Dang.  Whether Mr F Dang has to account to his mother for some proportion of his portion of the property is a matter as between him and Ms G.  It should be noted that Ms G did not enter into the fray until the absolute last moment.  Her intervention has all the appearance of being yet another endeavour by the Dang family interests, representing something of a loose coalition, it must be accepted, to try and defeat the interests of Ms Choi, whom they all clearly dislike. 

4. I note that the Motor Vehicle 2 is now in the possession of the Wife and has been paid off.  It should clearly be transferred to her ownership. 

5. Against these findings, we come to the question of Stanford v Stanford [2012] HCA 52.

6. In my view, this is a case in which there should be a property adjustment.  Albeit that Ms Choi contributed, in many ways, very little to the creation of the property pool, she did not do nothing.  She was married to the husband from 2003 until 2015.  In some fashion, she may have given him assistance when they were both living in China, particularly with the upbringing of his son, Mr F Dang.  The notion that her contribution is so limited that she should receive nothing at all flies in the face of established and orthodox methodology in relation to property division.  It is plain there ought to be an adjustment.   

The Pool Itself

1. For the reasons given, the Husband plainly has an interest in both the D Street, Suburb E and B Street, Suburb C properties.  The properties will either have to be valued or sold.

2. Only once the pool is thus ascertained will it be practicable to come to dollars and cents as between the parties.

The Contribution Issues

1. It should be noted that while all the major players had much to say as to what they had contributed to the property pool, in truth very little was actually advanced by the parties themselves.  Mr F Dang and his wife put up the deposit and costs of renovations of the D Street, Suburb E property in a total, it would seem, of something of the order of $60,000.  Thereafter, all the extra accrual of value has come from the rent paid by the students.  These students were lodged in what appear to have been highly overcrowded circumstances, and I doubt that the occupation of both the D Street, Suburb E and B Street, Suburb C premises would really pass muster with the relevant authorities controlling rooming houses and the like.  The administration of the affairs, so to speak, of the properties was plainly not a small matter.  So far as the B Street, Suburb C property was concerned, the deposit was effectively advanced by the unlawful drawdowns by the Husband, and the rest of the necessary funds were advanced, one way or the other, by Mr F Dang.  Once again, the vast bulk of the residual value of the B Street, Suburb C property derives from the rental paid by students.

2. Insofar as contribution issues between the Husband and Wife are concerned, I would find that of the Husband to be substantially greater.  He was the person who did the renovation work on the D Street, Suburb E property before the Wife arrived in Australia.  To the extent that there were renovations in B Street, Suburb C, those were plainly done or almost all done by him.  The role of the Wife appears to have been to work in the business that she and the Husband jointly ran, and this is a matter to which it is now necessary to turn. 

3. There is no doubt that the Wife has had involvement in a considerable number of corporations.  Nothing has emerged with any clarity as to quite what the scope and scale of these corporations is.  I accept that the documents appear to suggest that corporations in which she had some form of nominal interest dealt with very substantial amounts of money over time.  This brings us, however, to the evidence of Mr X.  Mr X was by no means a wholly convincing witness.  His denial that he was in a relationship with Ms Choi is not one that I accept.  She referred to him as her partner, and, while this might be thought to be equivocal, it is a fact that Mr X attended trial each day for the entire five days of the trial, so far as I could see, with Ms Choi, and this is an act of devotion far beyond that of a mere business partner.  Furthermore, his assertion that he gave her 10 per cent of his business out of the goodness of his heart because she was, so to speak, down on her luck in 2015 is not an assertion I am prepared to accept.  I repeat again all of these parties struck me as being acutely financially self-conscious, and generosity of that sort is not one I am prepared to infer. 

4. Where Mr X’s evidence was convincing, however, was of his business affairs in Country RR.  While the evidence did not in any way condescend to a sufficient degree of precision to enable one to make any very definite findings, it is clear that Mr X is a wealthy man whose businesses appear to attract investors who invest in hundreds of thousands of dollars.  Contrary to the submissions so vigorously advanced by counsel for the Husband, I do not accept that Ms Choi has squirrelled away millions of dollars to her benefit or that she has control of anything more than the business she apparently conducts from GG Street, Suburb HH.

5. I accept that the Wife has not complied with her obligations of disclosure in relation to that business and this is a matter it would be necessary to return to under the heading of Future Needs.

6. Doing the best one can in this evidentiary wasteland caused by the lack of veracity on the part of all concerned, I will assess the Husband’s contribution at 70 per cent and that of the Wife at 30 per cent.

Future Needs

1. The husband is 61.  There is no medical evidence as to his health, but I accept that the net result of the various dealings with which we are concerned has been to leave him in difficult circumstances.  He does not appear to have any superannuation, and this property settlement will be, it would seem, his best chance to set himself up for the remainder of his life.

2. The Wife has a business, the scope and scale of which have not been revealed.  She is in a relationship with Mr X and, as I find, has been since 2015.  She struck me as being a woman of vigorous determination who, to the extent that she may not have done so, will fully re-establish her interests as a businesswoman.  She is quite some years younger than the Husband.

3. Once again, doing the best one can in this unsatisfactory evidentiary arena, I would assess that there should be a further 10 per cent adjustment to the Husband.

Just and Equitable

1. In my view, a division of the property pool of the Husband and Wife of some 80 per cent to the Husband and 20 per cent to the Wife is in all the circumstances just and equitable.  It will not be possible to make the necessary calculations to achieve this end until the D Street, Suburb E and B Street, Suburb C properties are sold.

2. I should note finally that this was an extraordinarily difficult case to hear.  I had to take adjournments on a number of occasions simply because I found the behaviour of the litigants insupportable.  I have never had to do this in any other case before.  These are parties to whom the obligation to tell the truth seemed to me to be wholly absent, and the universal lack of candour that they have displayed has made trying to come to any kind of resolution of this matter all but impossible.  I am conscious that there are all sorts of things I may well have overlooked or perhaps misunderstood.  The description of what was said at the hearing is taken from my notes, and those notes themselves may reflect certain degrees of inaccuracy given the interpretation issues that the case gave rise to.

3. This judgment does the best I can in the circumstances.

4. It will be readily apparent that there are all sorts of loose ends in this case, and I propose, rather than creating any draft orders, to give the parties an opportunity to consider them and make further submissions.

I certify that the preceding two hundred and forty-eight (248) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  31 January 2020