Fing & Ma (No 2)

Case [2025] FedCFamC1F 294

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fing & Ma (No 2) [2025] FedCFamC1F 294

File number: MLC 321 of 2022
Judgment of: MCNAB J
Date of judgment: 8 May 2025
Catchwords: FAMILY LAW – PROPERTY – where the husband and wife were married for about 15 years – where funds were transferred from Country H to Australia – where the wife states that the funds were the inheritance of her daughter from a previous marriage after the passing of her former husband – where those funds were used to purchase properties in Australia under the daughter and a company’s name – where the husband says that the funds belonged to him by way of his successful business ventures in Country H and the properties are held by the daughter and the company as a first limb Barnes v Addy constructive trustee – where, in the alternative, he claims that the properties belong to him under a purchase money resulting trust – where the husband seeks an adjustment of property as between him and the wife after declarations that the properties are held on trust for him – where the wife, daughter and third respondent seek the dismissal of the husband’s application – where, in the alternative, the wife seeks an adjustment of property as between her and the husband of 60 per cent in her favour – Orders made dismissing the husband’s application.   
Legislation:

Family Law Act 1975 (Cth) s 79

Transfer of Land Act 1958 (Vic) s 42

Cases cited:

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11

Barnes v Addy LR 9 Ch App 244

Belmont Finance Corp Ltd v Williams Furniture Ltd (No 2) [1980] 1 All ER 393

Clifton & Aspen [2023] FedCFamC1F 376

Dovgan & Dovgan [2021] FamCA 306

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Fing & Ma [2023] FedCFamC1F 938

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143; [2003] FamCA 395

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kaplan & Hankel [2025] FedCFamC1F 41

Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68

Paragreen v Lim Group Holdings Pty Ltd (2020) 61 VR 293; [2020] VSCA 84

Quincey & Quincey [2024] FedCFamC1A 30

Re Richflow Pty Ltd (In Liq) [2024] VSC 618

Simmons v NSW Trustee and Guardian [2013] NSWSC 1688

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Watson v Foxman (1995) 49 NSWLR 315

Wei & Xia (No 5) (2023) 67 Fam LR 421; [2023] FedCFamC1F 679

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Yong & Weng [2024] FedCFamC1F 440

Division: Division 1 First Instance
Number of paragraphs: 176
Date of last submissions: 25…

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AGLC
Fing & Ma (No 2) [2025] FedCFamC1F 294
Case
[2025] FedCFamC1F 294
Decision Date

CaseChat Overview and Summary

In the case of Fing & Ma (No 2), the husband, Mr Fing, sought an adjustment of property as between him and his wife, Ms Ma, after asserting that certain properties in Australia were held on trust for him. The wife, along with the daughter and a company, opposed the husband's application, arguing that the properties were purchased using inheritance funds from the wife's former husband, Mr G. The husband claimed either that the properties were held as a constructive trustee for him or that they belonged to him under a purchase money resulting trust. The wife sought, in the alternative, an adjustment of property in her favour of 60%.

The court was required to determine several legal issues, including whether the husband had established a proprietary interest in the funds used to purchase the properties, whether a trust agreement existed between the parties, whether the daughter or the company had requisite knowledge of any trust obligations, whether there was a clear and contemporaneous intention to support a resulting trust, and whether there was fraud on the part of the daughter. The court also needed to assess if the husband's claims under a purchase money resulting trust or as a constructive trustee were valid.

The court found that the husband had failed to prove his claims. The husband could not establish that he had a proprietary interest in the funds used to purchase the properties, nor could he demonstrate a clear and contemporaneous intention to support a resulting trust. The court held that any claim under a purchase money resulting trust or as a constructive trustee must fail. Additionally, the husband did not establish that there was fraud on the part of the daughter, which would have defeated the indefeasibility of title established by the Torrens system. Consequently, the court dismissed the husband's application and ordered that he vacate the Town D property and remove any caveats lodged against the properties owned by the second and third respondents. The court also set out a process for any party to apply for costs in relation to the proceedings.

In summary, the court's decision was based on the husband's inability to substantiate his claims regarding the properties' ownership and the absence of fraud. As a result, the court dismissed the husband's application and ordered him to vacate the Town D property and remove any caveats against the second and third respondents' properties. The court further outlined the process for any party to apply for costs related to the proceedings.

Orders

Orders of the court

MLC 321 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR FING

Applicant

AND:

MS MA

First Respondent

MS LIAN

Second Respondent

K PTY LTD

Third Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

8 MAY 2025

THE COURT ORDERS THAT:

1. The applicant’s second further Amended Initiating Application filed 14 May 2024 be dismissed.

2. The applicant vacate and give to the second respondent vacant possession of C Street, Town D (“Town D property”) by no later than 8 July 2025.

3. Within 14 days the applicant at his expense remove any caveat lodged against the titles of properties owned by the second and/or third respondents being:

(a) The Town D property; and

(b) E Street, Suburb AJ.

4. Within 28 days of the date of this order:

(a) any party shall notify the Court of any application for costs accompanied by a written submission limited to (10) A4 pages together with a schedule of costs claimed;

(b) within 14 days thereafter any submission in response limited to (10) A4 pages be filed; and

(c) any application for costs be determined on the papers in chambers.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Conversely, the respondents maintain that the husband cannot prove that he was the source of the funds and that it was Mr G (“Mr G”), the wife’s deceased former husband, who had purchased apartments in City P, Region Q in Country H (“the apartments”) and was a successful businessman who was the source of the funds. They say the sale proceeds arising from the sale of the apartments were transferred to Australia via the maternal aunt and were used to benefit the daughter. They seek that the husband’s application be dismissed in its entirety.BACKGROUNDKey Non-Party Witnesses The history of this matter is highly contested and central to the findings I must make. The detail that the parties descended into in relation to the background was significant. In order to assist I set out the relevant actors in the narrative:(a)Mr G, the former husband of the wife and the father of the daughter;(b)Ms L, the maternal aunt who assisted in facilitating the transfer of moneys from Country H to Australia; (c)R Ltd, previously known as R1 Ltd and alternatively known as R2 Ltd; (d)Mr S, the nephew of the wife and the cousin of the daughter who was involved in the business dealings in Country H including with R Ltd;(e)Ms T, a distant relative who was involved in R Ltd;(f)Ms U, who was involved in R Ltd;(g)Mr V, the daughter’s uncle and to whom the husband transferred his interest to R Ltd;(h)Mr W, an alleged business associate of the husband;(i)Mr X, an alleged business associate of the husband;(j)Mr Y, an alleged business associate of the husband;(k)Mr Z, an alleged business associate of the husband;(l)Mr AA, an alleged business associate of the husband; and(m)Mr BB, an alleged business associate of the husband.The Parties The husband was born in Country H in 1960. In 1997, he migrated to Australia with his first wife and their daughter. They were divorced in 2004.[1] [1] Affidavit of Mr Fing filed 27 October 2023 ‘Husband’s affidavit’ at [6]. The wife was born in Country H in 1962. She was married to Mr G in 1985. They cohabitated from 1985 until 1996, although she says that from 1991 to 1996 this was “not so much as husband and wife.” They were divorced in late 2001.[2] The daughter is the only child to that marriage. The wife says that even after divorcing, she and Mr G were amicable and they continued to have a close relationship, with Mr G supporting the wife financially.[3][2] Affidavit of Ms Ma filed 14 November 2023 ‘Wife’s affidavit’ at [5].[3] Wife’s affidavit at [37]. In 2001, Mr G became unwell and had surgery.[4] In 2005, Mr G was diagnosed with a medical condition. He passed away in 2005.[5] The wife alleges that as a result of his successful business ventures, Mr G was wealthy and this wealth enabled him to own a luxurious house, cars, have nannies, housekeepers and a cook, as well as sending the daughter to a private international school.[6] [4] Wife’s affidavit at [38].[5] Wife’s affidavit at [41].[6] Wife’s affidavit at [28], [30], [32] and [33].

Evidence

Evidence Before The Court

At [20], his Honour referred to Quincey & Quincey [2024] FedCFamC1A 30 at [28] where Tree J referred to Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 296–297 (‘Banque’), where Dawson J said:It is, of course, the purpose of pleadings to define the issues between the parties so that they may know the case which they have to meet and in order that the proceedings upon trial may be conducted in an orderly fashion by reference to those issues. The defined issues provide the basis upon which evidence may be ruled admissible or inadmissible upon the ground of relevance. But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. Special procedures apart, cases are determined on the evidence, not the pleadings. It is incumbent upon the trial judge to see that the pleadings or particulars are amended so that the record reflects the proceedings as they have been conducted, but his failure to do so will not result in the invalidity of those proceedings: Dare v Pulham (1982) 148 CLR 658 at 664; Water Board v Moustakas (1988) 62 ALJR 209 at 211; 77 ALR 193 at 197; Leotta v Public Transport Commission (NSW) (1976) 50 ALR 666 at 668; 9 ALR 437 at 446; Maloney v Commissioner for Railways (NSW) (1978) ALJR 292 at 295; 18 ALR 147 at 151.(Emphasis added by Tree J) At [23] of Yong, Strum J then concluded after referring to further relevant authority: 23In the circumstances, I consider that, especially in this Court, the purpose of pleadings, where ordered and/or filed, is to define the issues between the parties so that they may know the case which they have to meet and in order that the proceedings, at trial, may be conducted in an orderly fashion by reference to those issues. However, they are not determinative of proceedings, which are delineated by the orders sought in applications, responses and/or replies, and the evidence adduced in support thereof. In Clifton & Aspen [2023] FedCFamC1F 376 at [112], Aldridge J took a more rigid approach to the role of pleadings in family law proceedings: 112Points of claim and points of defence identify the metes and bounds of the dispute that the applicant seeks to make against other respondents and, as with the statements of claim and defence, parties are bound by their pleadings. The case they seek to run is to be heard and determined by reference to the pleadings. Pleadings are not therefore not a general invitation to dance, but a precise articulation of the allegations made against the respondents. Contrary to the submissions of at least junior counsel for the wife in this matter, there is no right to amend the points of claim at any time the applicant feels fit. In line with that approach, which in my view is a conventional approach in commercial cases, when determining an application in this proceeding regarding the adequacy of pleadings and where the matter was at a point of devolving into an extended fight about pleadings, I stated (Fing & Ma [2023] FedCFamC1F 938 at [26]):26…I am not minded to order further and better particulars of the [Statement] of Claim or to strike out parts of the claim. The question of whether the claims made by each party in their respective pleadings are established by the evidence that they file is a matter for trial and final submissions. The parties have fixed the case that they intend to make by the pleadings and they shall not be permitted to move beyond the pleaded cases.

Decision

Reasons for decision

The husband raises in relation to the submission that the pleading does not refer to fraud, that this Court is not a court of pleadings and, in any case, parties should be able to depart from the strict form of the pleading. As acknowledged above, this is not a court of pleadings and generally matters do not proceed by way of pleadings. Where the case is of a nature that pleadings may assist the parties and the Court by fixing the claims that are being made with an explanation of how they are made and the material facts supporting the claims set out, then it is obviously important that parties conduct the case on the basis of the pleaded claims. This is particularly important where an allegation of fraud is made or needs to be made in order to make good a cause of action. Irrespective of the status of pleadings in this Court, rules of conduct for both solicitors and members of the independent bar require that an allegation of fraud must be clearly made and there must be a proper basis to raise such an allegation: Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 573. The claim of fraudulent conduct was not pleaded or clearly raised in the husband’s evidence and he has failed to defeat the indefeasibility of title established by this section. Any alternate claim under a purchase resulting trust or tracing fails because the husband has not established a proprietary right in the funds used to purchase the properties. CONCLUSION The husband has failed to prove:(a)that he has a proprietary interest in the funds used to purchase the properties in Australia and any claim arising under a purchase money resulting trust or as constructive trustee must therefore fail;(b)that there was a trust agreement as alleged as between himself, the wife and the maternal aunt; (c)that the daughter or third respondent had requisite knowledge of any trust obligations;(d)a clear and contemporaneous intention existed to support a resulting trust; or(e)fraud on the part of the daughter such as to defeat the infeasibility of title established by s 42 of the TLA. As the husband has not established ownership of the Australian properties and the wife does not contend that she has any interest in those properties, the asset pool is limited to the parties’ modest cash and household goods and there is essentially no asset pool. On the evidence of each the husband and wife, the asset pool minus the Australian properties is in the negative. I will therefore not make any orders pursuant to s 79 of the Act. For these reasons, the application must be dismissed, and I will make the orders sought by the respondents.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.