Cun & Zhihui (No 2) - [2022] FedCFamC1F 598

Federal Circuit and Family Court of Australia
(DIVISION 1)
Cun & Zhihui (No 2) [2022] FedCFamC1F 598

File number(s): SYC 3261 of 2015

Judgment of: HARPER J

Date of judgment: 19 August 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Where the First to Third Respondents are self-represented – Where final hearing dates had previously been vacated – Husband presses an application for summary dismissal of wife’s application for final orders – Allegations of malicious lawsuits and fraudulent conduct by the wife and her legal representatives – Allegations of obstruction of justice and manipulation – No evidence to support contentions – Application dismissed – Wife seeks orders for updated valuation of properties – Where husband has denied access to valuers – Orders made for updated valuation.

Legislation:
Criminal Code Act 1995 (Cth) s 137.1

Corporations Act 2001 (Cth) s 601AH(2)

Family Law Act 1975 (Cth) ss 78, 79, 106B

Cases cited:
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251; [1996] HCA 14

Reichel v Magrath (1889) 14 App Cas 665

Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66

Ritter & Ritter (2020) FLC 93-957;

Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28

UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45

Division: Division 1 First Instance

Number of paragraphs: 31

Date of hearing: 15 August 2022

Place: Sydney

Solicitor for the Applicant: Goh Lawyers

The First Respondent: Self-represented litigant

The Second Respondent: Self-represented litigant

The Third Respondent: No appearance
ORDERS

SYC 3261 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CUN

Applicant

AND:
MR ZHIHUI

First Respondent

MR CHEN

Second Respondent

MS CHEN

Third Respondent

order made by:

HARPER J

DATE OF ORDER:

19 August 2022

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the First Respondent Husband on 25 July 2021 and amended on 26 July 2022 be dismissed.
2.The parties jointly engage F Valuers (“F Valuers”) to provide an updated valuation report with respect to the properties situated at:
(a)G Street, Suburb D, NSW; and
(b)H Street, Suburb E, NSW.

3.The First, Second, and Third Respondents do all things necessary to cooperate with F Valuers for the purpose of the valuation referred to in Order 2, including permitting F Valuers access to the properties for the purpose of both an internal and external inspection as may be necessary and appropriate to complete an updated valuation.
4.The Applicant Wife and First Respondent Husband share equally in the cost of the valuation referred to in Order 2.
5.The Application in a Proceeding filed by the Applicant Wife on 26 July 2022 be otherwise dismissed.

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

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Cun & Zhihui (No 2)

Details

AGLC: Cun & Zhihui (No 2) [2022] FedCFamC1F 598
Case: [2022] FedCFamC1F 598
Decision Date

CaseChat Overview and Summary

In the matter of Cun & Zhihui (No 2), the husband sought the dismissal of his wife’s application for final orders in family law proceedings. The wife sought orders for the declaration of interests in property and for property adjustment on a just and equitable basis. The husband claimed the wife’s application was malicious, frivolous, vexatious, or an abuse of process, and sought dismissal of her claims. He also sought orders for costs against the wife’s legal representatives and an order for a certificate of vexatious proceedings. The wife sought an updated valuation of the properties in dispute.

The court considered whether the husband’s allegations of fraud, malicious lawsuits, and abuse of process demonstrated that the wife had no reasonable prospects of success or that her claims were vexatious, frivolous, or an abuse of process. The court found the husband’s allegations to be unsupported and fanciful, and dismissed his application for summary dismissal. The court then considered the wife’s application for updated valuation of the properties. The husband had failed to comply with a previous order for updated valuation, and the court made the orders as sought by the wife.

The court dismissed the husband’s application for summary dismissal of the wife’s claims and made orders for updated valuation of the properties. The court reserved all questions of costs.

Orders