Gong & Zao

In the case of Gong & Zao, the appellant sought to appeal the Family Court's dismissal of their application to summarily dismiss the respondent's application for a division of funds held in Australia. The appeal raised two primary issues: whether the primary judge correctly applied the principles concerning summary dismissal and claims of res judicata and claim estoppel. The primary judge's decision was based on the doctrine of res judicata, claim estoppel, and Anshun estoppel, arguing that the respondent was estopped from prosecuting their proceedings due to a previous division of property in China. The court had to determine if the primary judge correctly applied these principles.

The court found that the primary judge failed to apply the correct principles regarding summary dismissal and the doctrine of res judicata. The court highlighted that the primary judge incorrectly applied the "doomed to fail" test instead of the current "no reasonable prospect of success" test. Additionally, the primary judge did not adequately consider whether the funds in Australia were an issue in the Chinese proceedings or whether the Chinese court intended to deal with the funds. The court concluded that the primary judge's approach was incorrect and that the principles in Clayton & Bant (2020) 95 ALJR 34 were not appropriately applied.

The court allowed the appeal for leave, dismissed the appeal, and ordered the appellant to pay the respondent's costs in a fixed sum of $13,025.76. This decision underscores the importance of correctly applying legal principles and tests, particularly in matters involving international elements and summary dismissal applications. The court's ruling emphasises the need for judges to be cautious when considering applications for summary dismissal and to apply the correct legal standards to avoid unjust outcomes.