GONGSUN & PALING

Case [2020] FamCAFC 244


FAMILY COURT OF AUSTRALIA

GONGSUN & PALING [2020] FamCAFC 244

FAMILY LAW – APPEAL – Appeal from orders made by a judge of the Supreme Court of New South Wales – Financial Agreement – De facto relationship – Where s 90UM(1)(f) of the Family Law Act 1975 (Cth) applies – Where the subject property was only registered in appellant’s name – Where the respondent executed a will leaving the property to the appellant – Undue influence – Where the findings made by the primary judge were inadequate to support a conclusion of undue influence – Unconscionable conduct – Where although a ground of appeal succeeded, the orders remain supported by the primary judge’s undisturbed conclusions in relation to unconscionability – Where circumstances of special disadvantage were identified by the primary judge, namely the respondent’s “infatuation” with the appellant and his consequent “vulnerability” – Where the primary judge found that the respondent was entitled to 50 per cent of the property on the basis of equitable principles and would have arrived at the same outcome under s 90SM of the Family Law Act 1975 (Cth) – Appeal dismissed.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where appellant made an oral application to amend the Notice of Appeal to include a further ground of appeal – Where the proposition referred to in the proposed ground of appeal was put to the appellant in cross-examination – Amendment refused.

FAMILY LAW – APPEAL – NOTICE OF CONTENTION – Where the respondent challenges the primary judge’s determination that there was an intention to transfer the beneficial interest in the property to the appellant – Interpretation of s 90SA of the Family Law Act 1975 (Cth) – Notice of Contention dismissed.

Family Law Act 1975 (Cth) ss 90SA, 90SM, 90UB, 90UF, 90UL, 90UM

Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66

Calderbank v Calderbank [1975] 3 All ER 333

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25
Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61
Quek v Beggs (1990) 5 BPR 11,761
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

APPELLANT: Ms Gongsun
RESPONDENT: Mr Paling
APPEAL NUMBER: EAA 24 of 2020
DATE DELIVERED: 30 September 2020
PLACE DELIVERED: Cairns
PLACE HEARD: Sydney (via video link)
JUDGMENT OF: Aldridge, Watts & Tree JJ
HEARING DATE: 22 April 2020
LOWER COURT JURISDICTION: Supreme Court of New South Wales
LOWER COURT JUDGMENT DATE: 2 August 2019
LOWER COURT MNC: [2019] NSWSC 1022

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Bedrossian
SOLICITOR FOR THE APPELLANT: North Shore Lawyers & Associates
COUNSEL FOR THE RESPONDENT: Mr Zipser
SOLICITOR FOR THE RESPONDENT: Vaarzon-Morel Solicitors

Orders

  1. Appeal No. EAA 24 of 2020 is dismissed.

  2. The Amended Notice of Contention…

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AGLC
GONGSUN & PALING [2020] FamCAFC 244
Case
[2020] FamCAFC 244
Decision Date

CaseChat Overview and Summary

The appeal in Gongsun & Paling was heard by the Family Court of Australia, with the appellant contesting the orders made by the primary judge regarding a financial agreement and property division in a de facto relationship. The property in question was registered solely in the appellant's name, and the respondent had executed a will leaving the property to the appellant. The central legal issues before the court were whether the primary judge's findings adequately supported a conclusion of undue influence and whether the primary judge correctly assessed unconscionability and equitable principles in determining the respondent's entitlement to half of the property.

The court found that the primary judge's findings were insufficient to establish undue influence, as the respondent's infatuation and vulnerability did not sufficiently demonstrate that the appellant had taken advantage of these circumstances. However, the court upheld the primary judge's conclusions regarding unconscionability, affirming that the respondent was entitled to 50 per cent of the property based on equitable principles. The court noted that the primary judge would have reached the same outcome under section 90SM of the Family Law Act 1975. Additionally, the court dismissed the appellant's oral application to amend the Notice of Appeal to include a further ground of appeal and the respondent's challenge to the primary judge's intention to transfer the beneficial interest in the property.

The appeal was ultimately dismissed, and the court set out specific timelines for any subsequent applications for costs. The primary judge's decision was upheld, and the appeal did not alter the equitable distribution of the property between the parties.

Orders

Orders of the court

1.

Appeal No. EAA 24 of 2020 is dismissed.

2.

The Amended Notice of Contention in Appeal No. EAA 24 of 2020 is dismissed.

3.

Within 14 days of these orders:

(a) Any application for costs is to be made, filed and served;

(b) Any affidavit material in support of such application is to be made, filed and served; and

(c) Any written submissions in support of that application for costs are to be made, filed and served.

4.

Within 28 days of these orders, the respondent to any application for costs is to:

(a) Make file and serve any affidavit sought to relied upon to resist the application; and

(b) Make file and serve any written submissions resisting the application for costs.

5.

Within 35 days of these orders, any party seeking an order for costs is to make, file and serve any affidavit material and written submissions strictly in reply to any material filed under order (4) hereof.

6.

Otherwise the decision of the Full Court in relation to any application for costs is reserved.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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