Chung v Yang

[2021] QDC 68

DISTRICT COURT OF QUEENSLAND

CITATION: 

Chung v Yang [2021] QDC 68

PARTIES:

TIENKUEI YANG

(Applicant/defendant)

v

LI-TING CHUNG

(Respondent/plaintiff)

FILE NO/S:

3228/20

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 April 2021 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2021

JUDGE:

Reid DCJ

ORDER:

1.   It is declared that this proceeding has not, for want of jurisdiction, been properly started.

2.   The claim and statement of claim in this proceeding are set aside.

3.   The plaintiff is to pay the defendant’s costs of and incidental to this proceeding on the standard basis.

CATCHWORDS:

FAMILY LAW – JURISDICTION – DE FACTO RELATIONSHIPS – where the applicant and the respondent were in a de facto relationship – where the respondent instituted proceedings in the Federal Circuit Court for property settlement – where the respondent discontinued the Federal Circuit Court proceedings and commenced proceedings in the District Court – where the applicant seeks a declaration that the District Court proceedings have not, for want of jurisdiction, been properly started and ancillary orders – whether the District Court has jurisdiction to hear this matter – whether the claim is a “de facto financial cause” as defined in the Family Law Act

LEGISLATION:

Family Law Act 1975 (Cth), ss 4, 39A(5)

District Court of Queensland Act 1967 (Qld), s 68

Uniform Civil Procedure Rules 1999 (Qld), r 16(a)

CASES:

Farrall v Money [2012] QCA 262

Fenton v Marvel (2013) 51 Fam LR 142

Scanlon v McLeay [2018] QDC 17

COUNSEL:

M P Amerena for the Applicant
M D Thompson for the Respondent

SOLICITORS:

Accuro Maxwell for the Applicant
Robinson Locke Litigation Lawyers for the Respondent

1. The applicant and the respondent were in a de facto relationship from about 2011 until 2017.  On the 10^th of May 2018, the respondent instituted proceedings in the Federal Circuit Court of Australia (FCCA) for property settlement.  Interestingly, the orders sought in that application were: 

(1)   That within seven days, the respondent repay the applicant $191,789.47. 

(2)   That the respondent do all acts within 30 days to return the properties that belong to the applicant including precious jewelleries, electronic items, clothing and other personal accessories as listed in annexure A. 

(3)   That the parties do all acts to sell the car, and the proceeds of the sale will be split 50 per cent to the applicant and 50 per cent to the respondent. 

1. It must, of course, be remembered that the identification of the parties in that case was different from here.  The applicant in that case is the respondent here, and the respondent in that case is the applicant in the matter before me. 

1. The applicant in these proceedings filed an affidavit in those proceedings in response to the application.  It is unnecessary to set out the conflicting views identified in the affidavits filed, other perhaps than to observe that there appears to have been a real factual contest in that Court. 

1. On 13 November 2019, an…