Fing & Ma

Case [2025] FedCFamC1A 168

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Fing & Ma [2025] FedCFamC1A 168

Appeal from: Fing & Ma (No 2) [2025] FedCFamC1F 294
Appeal number: NAA 261 of 2025
File number: MLC 321 of 2022
Judgment of: ALDRIDGE, CAMPTON & CHRISTIE JJ
Date of judgment: 15 September 2025
Catchwords: FAMILY LAW – APPEAL – Property – Role of Pleadings – Where the appellant’s grounds are overly expansive, overlapping and repetitive – Where the appellant’s sole contention was that funds that he transferred from a bank account in Country H to Australia were charged with a resulting trust in his favour – Where the appellant could not demonstrate in the appeal that the funds were beneficially his – Where the appellant could offer no support for the proposition that he had an unrebuttable proprietary interest in those funds – Appeal dismissed – Orders made for written submissions as to costs.
Cases cited:

Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11

Barnes v Addy LR 9 Ch  App 244

Bosanac v Commissioner of Taxation (2022) 275 CLR 37; [2022] HCA 34

Citigroup Pty Ltd v National Australia Bank Ltd (2012) 82 NSWLR 391; [2012] NSWCA 381

Clifton & Aspen [2023] FedCFamC1F 376

Croton v The Queen (1967) 117 CLR 326; [1967] HCA 48

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Quincey & Quincey (2024) FLC 94-178; [2024] FedCFamC1A 30

Russell v Scott (1936) 55 CLR 440; [1936] HCA 34

Wei & Xia (2024) FLC 94-186; [2024] FedCFamC1A 65

Yong & Weng (2024) 70 Fam LR 1; [2024] FedCFamC1F 440
Number of paragraphs: 46
Date of hearing: 27 August 2025
Place: Heard in Melbourne, delivered in Sydney
Counsel for the Appellant: Mr Lim
Solicitor for the Appellant: Francis Lim Barristers and Solicitors
Counsel for the First and Second Respondents: Mr Seelig with Mr Tesoriero
Solicitor for the First and Second Respondents: Destra Law
Counsel for the Third Respondent: Ms Chia
Solicitor for the Third Respondent: Lakey Law

ORDERS

NAA 261 of 2025
MLC 321 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR FING (DECEASED) BY HIS LEGAL PERSONAL REPRESENTATIVE MS FING

Appellant
AND:

MS LIAN

First Respondent

B PTY LTD

Second Respondent

MS MA

Third Respondent

ORDER MADE BY:

ALDRIDGE, CAMPTON & CHRISTIE JJ

DATE OF ORDER:

15 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.The first and second respondents’ solicitors are to file and serve any application for costs and evidence relied upon by them within 21 days of the date of these orders.

3.The third respondent is to file and serve any application for costs and any evidence relied upon by them within a further seven days.

4.The appellant is to file and serve any reply within a further seven days.

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

Note: This copy…

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AGLC
Fing & Ma [2025] FedCFamC1A 168
Case
[2025] FedCFamC1A 168
Decision Date

CaseChat Overview and Summary

In the case of Fing & Ma, the Federal Circuit and Family Court of Australia considered an appeal regarding the ownership of certain funds. The appellant, represented by Ms Fing as the legal personal representative, contested the decision of the lower court in relation to property disputes. The respondents were Ms Lian, B Pty Ltd, and Ms Ma. The court was tasked with determining whether the lower court had erred in its assessment of the ownership of funds transferred from an account in Country H to Australia.

The legal issues before the court involved the interpretation of the principles of resulting trusts, particularly whether the presumption of a resulting trust applied to the funds in question. The appellant argued that the funds were held under a resulting trust in his favour. However, the court found that the appellant could not demonstrate that the funds were beneficially his, and thus, the presumption of a resulting trust did not apply. The appellant's grounds for appeal were extensive, overlapping, and repetitive, primarily focusing on the source and beneficial ownership of the funds. The court concluded that the primary judge had correctly applied the relevant legal principles and found no error in the lower court's reasoning.

The court dismissed the appeal, finding that the appellant's arguments were without merit. The judges held that the appellant failed to provide any evidence to support the claim that he had an unrebuttable proprietary interest in the funds. The presumption of a resulting trust was found to be inapplicable since the funds were never beneficially owned by the appellant. Consequently, the appeal was dismissed, and the court ordered that the first and second respondents' solicitors file and serve any application for costs within 21 days, with the third respondent and the appellant given further time to file their respective applications and replies.

Orders

Orders of the court

NAA 261 of 2025

MLC 321 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FING (DECEASED) BY HIS LEGAL PERSONAL REPRESENTATIVE MS FING

Appellant

AND:

MS LIAN

First Respondent

B PTY LTD

Second Respondent

MS MA

Third Respondent

ORDER MADE BY:

ALDRIDGE, CAMPTON & CHRISTIE JJ

DATE OF ORDER:

15 SEPTEMBER 2025

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The first and second respondents’ solicitors are to file and serve any application for costs and evidence relied upon by them within 21 days of the date of these orders.

3. The third respondent is to file and serve any application for costs and any evidence relied upon by them within a further seven days.

4. The appellant is to file and serve any reply within a further seven days.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

These grounds are not made out.Did the primary judge ‘over rely’ on uncorroborated oral evidence in preference to independent contemporaneous documentary evidence’? (Ground 4) The appellant submitted that there were serious credibility issues with the evidence of Mr G who gave evidence as to the source of the funds in the appellant’s account. The substance of this ground is the same as those just discussed and it fails for the same reason. Did the primary judge fail to apply the principles as to a resulting trust? The law makes a presumption known as a presumption of a resulting trust: “that a person who advances purchase moneys for property, which is held in the name of another person, intends to have a beneficial interest in that property”: Bosanac v Commissioner of Taxation (2022) 275 CLR 37 at [8] per Keifel CJ and Gleeson J. A similar statement of principle was recorded by his Honour at [67]. The difficulty facing the appellant is that if the funds were never beneficially his, he could not be the provider of them and the presumption would not arise. This was noted at [175(a)]. The presumption is a weak one easily rebutted by evidence of actual intention. This was found at [175(d)], consistently with the findings of fact made by his Honour. That fact finding process has not been shown to be erroneous. This ground does not succeed. The final ground raises the indefeasibility of registered title. It arises only if one of the earlier grounds succeeds. It is therefore not necessary to consider it in any detail other than to say that the primary judge correctly did not deal with it because it was not pleaded. Accordingly, all of the appellant’s grounds are without merit, the appeal fails.Costs As requested by the respondents, directions will be made for the provision of evidence and submissions on the question of costs.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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