FAMILY COURT OF AUSTRALIA
| CHONG & SUNG AND ORS | [2020 FamCA 766 |
| FAMILY LAW – PROPERTY – Application by husband and wife for alteration of property interests – husband did not participate in the final trial – second respondent is the parties’ adult daughter – third respondent is a company in which the wife and second respondent hold shares – neither the second or third respondents participated in the trial – orders made for the trial to proceed undefended – consideration of composition of the asset pool for division between the parties – assessment of contributions of both parties – a property of which the second respondent is the registered proprietor found to be held on trust for the husband and wife – the second respondent’s shares in the company held on trust for the wife – orders made substantially in accordance with the proposal of the wife. |
| Family Law Act 1975 (Cth) ss75, 79, 117 Evidence Act 1995 (Cth) ss 140 |
| Stanford v Stanford [2012] HCA 52 In the Marriage of Hickey [2003] FamCA 395 Bevan & Bevan [2013] FamCAFC 116 Chancellor & McCoy [2016] FamCAFC 256 Dickons & Dickons [2012] FamCAFC 154 In the Marriage of I & I (No 2) (1995) 22 Fam LR 557 Worth & Worth (No. 2) [2019] FamCAFC 126 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 |
| APPLICANT: | Ms Chong |
| FIRST RESPONDENT: | Mr Sung |
| SECOND RESPONDENT | Ms Sung |
| THIRD RESPONDENT: | B Pty Ltd |
| FILE NUMBER: | MLC | 12064 | of | 2017 |
| DATE DELIVERED: | 15 September 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Williams J |
| HEARING DATE: | 20 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hall |
| SOLICITOR FOR THE APPLICANT: | Robinson Gill |
| THE FIRST RESPONDENT: | No Appearance |
| THE SECOND RESPONDENT: | No Appearance |
| THE THIRD RESPONDENT: | No Appearance |
Orders
Within 7 days of the date of these orders the applicant serve the first, second and third respondents with a copy of these orders and reasons for judgment.
Service as provided in the preceding paragraph be effected by email to the respective respondent’s usual email address.
IT IS DECLARED THAT:
The 2nd and 3rd Respondents hold their interest in the real property situate at and known as C Street, Suburb D being the whole of the land more particularly described in Certificates of Title Volume … Folios …, … and … (“C Street”) on trust for the Husband and Wife
The 2nd Respondent holds her interest in B (Aust) Pty Ltd on trust for the Wife.
IT IS ORDERED THAT:
E Street
Within 30 days of these orders, the Husband do all acts and things necessary to transfer to the Wife all of his right title and interest in the property situate at E Street, Suburb D being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“E Street”).
Pending the transfer of E Street:
(a)the Wife have the sole right to occupy E Street and during such right of occupation she…
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- Chong and Sung & Ors [2020] FamCA 766
- Case
- [2020] FamCA 766
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the second and third respondents held their interests in the C Street property on trust for the Husband and Wife, and whether the second respondent held her interest in B (Aust) Pty Ltd on trust for the Wife. Additionally, the court needed to make orders regarding the transfer of interests in the E Street property and the C Street property, as well as the disposition of shares in B (Aust) Pty Ltd and B Pty Ltd. The court also had to consider the allocation of liabilities and the payment of costs.
Williams J declared that the second and third respondents held their interests in the C Street property on trust for the Husband and Wife. The court further declared that the second respondent held her interest in B (Aust) Pty Ltd on trust for the Wife. The court then made detailed orders for the transfer of the Husband's interest in E Street to the Wife, granting the Wife sole occupation pending transfer and imposing restrictions on encumbrances. Similar orders were made for the transfer of the second respondent's interests in C Street to the Wife, including provisions for the discharge of a mortgage and sole occupation by the Wife pending transfer. The second respondent was also ordered to transfer her shares in B (Aust) Pty Ltd to the Wife and to forego any claims to entitlements in that company, while being solely liable for liabilities relating to B Pty Ltd. The Wife was to retain C Street to the exclusion of the Husband. The court also made provisions for the enforcement of these orders, including the appointment of a Registrar to execute documents if a party refused to do so, and ordered the Husband to pay the Wife's costs. Finally, the court made omnibus orders regarding the division of other property, joint bank accounts, superannuation, insurance policies, and liabilities, and expressly severed any joint tenancies.
Orders
Orders of the court
1.
Within 7 days of the date of these orders the applicant serve the first, second and third respondents with a copy of these orders and reasons for judgment.
2.
Service as provided in the preceding paragraph be effected by email to the respective respondent’s usual email address.
IT IS DECLARED THAT:
3.
The 2nd and 3rd Respondents hold their interest in the real property situate at and known as C Street, Suburb D being the whole of the land more particularly described in Certificates of Title Volume … Folios …, … and … (“C Street”) on trust for the Husband and Wife
4.
The 2nd Respondent holds her interest in B (Aust) Pty Ltd on trust for the Wife.
IT IS ORDERED THAT:
E Street
5.
Within 30 days of these orders, the Husband do all acts and things necessary to transfer to the Wife all of his right title and interest in the property situate at E Street, Suburb D being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“E Street”).
6.
Pending the transfer of E Street:
(a) the Wife have the sole right to occupy E Street and during such right of occupation she pay all outgoings of or with respect to the property;
(b) neither party encumber the property without the written consent of the other; and
(c) each party holds their interest in E Street on trust pursuant to these orders.
B (Aust) Pty Ltd and B Pty Ltd
7.
Within 30 days from the making of these orders, the 2nd Respondent do all such acts and things and sign all such documents as may be necessary to:
(a) transfer all of her right title and interest including her shares in B (Aust) Pty Ltd to the Wife; and
(b) forego and abandon any claim she may otherwise have had in respect to any entitlements in B (Aust) Pty Ltd.
8.
The 2nd Respondent be solely liable for and indemnify the Wife against any past, current or future liabilities owed by or relating to B Pty Ltd.
C Street
9.
The Wife retain C Street to the exclusion of the husband.
10.
Within twenty four (24) months of the making of these orders (“the date”) and within 30 days of a written request from the Wife, the 2nd Respondent in her personal capacity and in her capacity as the director and shareholder of the 3rd Respondent, do all acts and things as may be required to:
(a) transfer to the Wife all of her right title and interest in C Street;
(b) facilitate the discharge of the mortgage to F Bank encumbering C Street including but not limited to signing a discharge authority.
11.
Contemporaneously with the transfer of C Street, the Wife discharge the mortgage to F Bank encumbering C Street.
12.
Pending the transfer of C Street:
(a) the Wife have the sole right to occupy C Street and during such right of occupation the Wife pay all outgoings thereon;
(b) all parties are restrained from encumbering or further encumbering C Street without the written consent of all other parties; and
(c) the parties hold their interests in C Street on trust pursuant to these orders.
13.
The Wife be at liberty to provide a copy of these orders to F Bank.
Enforcement
14.
Should any party to these proceedings refuse or neglect to execute any document necessary to give effect to these orders, upon proof by affidavit of the defaulting party’s refusal or neglect to do so, a Registrar of the Family Circuit Court of Australia at Melbourne be appointed pursuant to section 106A of the Family Law Act 1975 to execute all deeds and or instruments in the name of the defaulting party and do all acts and things to give validity and operation to the deeds and or instruments.
15.
A party shall be deemed to have refused or neglected to execute any documents in the event that the same are not received back from the said party duly executed within five business days of the date upon which they were emailed to the said party.
16.
The Wife may provide a copy of these orders to any Chinese court in any proceedings involving the Wife and the Husband.
Costs
17.
Within 30 days of the date of these orders, the Husband pay the Wife’s costs of and incidental to the applications of 22 November 2017, 15 February 2018, 11 February 2020 and 6 May 2020 calculated on a party/party basis, and fixed at $17,041.
Omnibus
18.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(i) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party at the date of these Orders;
(ii) monies standing to the credit of the parties in any joint bank account are to become the property of the Wife;
(iii) each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(iv) insurance policies remain the sole property of the beneficiary named therein;
(v) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(vi) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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