Hai and Shoo

[2014] FCCA 2299

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAI & SHOO [2014] FCCA 2299

Catchwords:
FAMILY LAW  ̶  Whether husband or wife provided the purchase price of the matrimonial home  ̶̶  where there was a short marriage with no contribution by either party to the other’s property at commencement.

Legislation:

Family Law Act 1975 (Cth) ss.75,79

Applicant: MS HAI

Respondent: MR SHOO

File Number: DGC 1430 of 2013

Judgment of: Judge Phipps

Hearing dates: 10 & 11 April 2014

Date of Last Submission: 11 April 2014

Delivered at: Dandenong

Delivered on: 14 October 2014

REPRESENTATION

Counsel for the Applicant: Mr Weil

Solicitors for the Applicant: Hymans Solicitors

The Respondent In person by his litigation guardian

ORDERS

1. That the husband execute all deeds and instruments and do all things necessary to transfer to the wife at the wife’s expense all his right title and interest in the property contained in Certificate of Title Volume (omitted) Folio (omitted) being the whole of the land situate at and known as Property T.

2. Pursuant to s.106A of the Family Law Act 1975 (Cth), in the event that the husband fails or refuses to execute any deed or instrument to affect the transfer described in paragraph 1 a Registrar of the Federal Circuit Court of Australia is appointed to execute the deed or instrument in the name of the husband and to do all acts and things necessary to give validity and operation to the deed or instrument.

3. Otherwise each party is declared to have no interest in any property, including bank accounts, choses-in-action and superannuation, in the name or possession of the other party.

IT IS NOTED that publication of this judgment under the pseudonym Hai & Shoo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1430 of 2013

MS HAI

Applicant

And

MR SHOO

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant wife and the respondent husband are joint proprietors of Property T.  Its value is $360,000.  In this property dispute each applies for an order that the property be transferred to her or to him.  Each party owns other property but neither proposes that any of that property be included in any order the court makes.  Each party says that he or she provided the whole of the purchase price for the Property T property using partly their own money and partly borrowed money.  The principal issue in the case is whose version is correct.

2. The wife was represented by counsel at the hearing.  The husband was not legally represented.  He had been initially but his solicitors had filed a Notice of Discontinuance.  By an order made 10 July 2013, made when the husband was still represented by solicitors, the husband’s son Mr B was appointed litigation guardian for the husband.  At the hearing the litigation guardian appeared accompanied by the husband.  The husband was in a wheelchair and was slumped to one side.  According to his son he had suffered a stroke but would not go to hospital.  The son produced a brief certificate from a medical practitioner which said that he had seen the husband and advised that he should attend at hospital.  It did not give a positive diagnosis of stroke.  An earlier medical certificate dated 8 July 2013 states “this man suffers from several severe health conditions -including severe depression.  He is fully dependent on others.  He cannot venture out on his own.”  It lists a number of ailments under the heading “current problems”.  They are left lower tibia injury – fracture 2001, depression, diabetes – insulin, hypertension, left lower leg injury 2000, low back pain, reduced left lower leg and perfusion, reduced left foot sensation, right eye blindness and shoulder pains.

3. Neither of the medical certificates was verified by affidavit and neither was admitted into evidence by consent.  Consequently, while I consider it necessary to record their existence as part of the background to the case they are not admissible evidence.  Thus, there is no admissible evidence of the husband’s medical condition.

4. The husband filed two affidavits, one sworn or affirmed on 9 July 2013 and the other on 10 October 2013 and a financial statement dated 9 July 2013.  An affidavit by an interpreter verified that the interpreter had translated the response, the financial statement and the respondent’s affidavit of 9 July 2013 along with annexures and the oath of affirmation from the English language to the Mandarin Chinese language. 

5. An affidavit by Ms G sworn or affirmed on 16 August 2013 was filed on behalf of the husband.  She deposes to lending money to the husband.  She gave evidence at the hearing and was cross-examined.

6. The wife filed two affidavits, the first affirmed 29 May 2013 and the second affirmed 11 February 2014.  She filed a financial statement dated 29 May 2013.  Both affidavits were affirmed through interpreters.  She gave oral evidence and was cross examined.

Background by wife

1. The wife’s first affidavit sets out what she says is the background, the circumstances of purchase of the Property T property and the separation.

2. She was born on (omitted) 1947 in the People’s Republic of China and is now aged 67 years of age.  She is a Chinese citizen with an Australian permanent residence visa  She has lived in Australia since 15 November, 2010.  She worked as an (occupation omitted) in China and retired at the age of 55 years old.  She married in China in 1971 and divorced in 2002.  She has one son born in 1972.

3. She says that the husband was born on (omitted) 1951 in China.  He was previously married in China and divorced in about 2007 in Australia.  He has an adult son.  The husband is an Australian citizen.

4. She says she first met the husband in November 2005 through her niece.  They started dating about the middle of 2007 after he divorced his ex-wife.  The husband was residing in Melbourne Australia.  She says that the parties saw each other about 7 to 10 days every three months in China.  She entered Australia on a tourist Visa of three months duration in 18 August 2008.  She says that in the company of the husband she purchased the property in Property T for $305,000 plus costs of purchase of approximately $17,000.  She says she provided the entire amount of $327,000 to complete the purchase.

5. She says that amount includes $120,000 she borrowed from her son and daughter in law in October 2008 and $203,000 being the proceeds of sale of shares she owned in China.  She says she repaid $70,000 back to her son and daughter in law in 2011 after she sold one of her real estate properties in (omitted) China.  She still owes $50,000 to her son and daughter in law.

6. She says that the solicitors who acted on her behalf in the purchase of the Property T property advised her that as a foreigner she was not allowed to purchase properties in Australia.  She says that therefore only because of that advice she instructed the lawyers to register the title as tenants in common with 80% for her and 20% for the respondent.

7. She says that she needed to go back to China to arrange money for settlement so on 1 October 2008 she executed a Power of Attorney in favour of the husband.  She returned to China on 6 October 2008.  The parties were registered as joint proprietors of the Property T property on 10 November 2008.  The wife says she was unaware that they were registered as joint proprietors until April 2011.

8. The wife remained in China and she and the husband were married there on (omitted) 2009.  She says that between February 2009 and April 2010 she and the husband spent 7 to 10 days together every three months in China

9. The wife says that the respondent and his son and daughter in law lived in the Property T property and the husband let part of the house to others and kept the rent.  She says that in July 2009 and October 2009 the husband received cheques from the State Revenue Office, the first was $1,738 and the second $5,779 for overpayments on the purchase of the property.  She says the husband kept the entire amount and she did not know about it until April 2011.

10. On 29 September 2010 the joint tenancy of the Property T property was severed and the property transferred to the parties as tenants in common in equal shares.  The wife says this was done by the husband using the power of attorney without her knowledge.  The husband responded to the wife’s affidavit in his affidavit of 9 July 2013.  He was represented by solicitors at this time.  The wife’s claim that the property was transferred into tenants in common is described in paragraph 29 of her affidavit.  The husband does not respond to this paragraph.

11. Copies of both Certificates of Title and Transfers are in evidence.  The transfer into joint names in 2009 shows that it was executed by the wife by the husband using the power of attorney dated 1 October 2008.  The transfer was prepared by solicitors.

12. The transfer into the parties’ names as joint proprietors as tenants in common in equal shares is handwritten and not identified as being prepared by solicitors.  The purported execution by the wife is not stated to be done by power of attorney.  The signature in the execution clause for the wife does not appear to resemble the signature of the wife on her affidavits and the style of writing appears to resemble more the style of the husband’s signature on his affidavits and the signature in the execution clause for the husband on the transfer.  Expert handwriting evidence, of which there is none, would be necessary for a conclusion one way or the other.  The best that can be said is that examination of the transfer into the parties’ names as tenants in common does not disprove what the wife alleges.

13. The wife alleges that the property was transferred into the parties’ names as tenants in common by the husband without her knowledge.  The husband has had the opportunity to deny that it was done without her knowledge but has not taken it.  The only conclusion on the balance of probabilities is that what the wife says is correct.

14. On 29 September 2010 the wife was still living in China.  The spouse visa was granted in October 2010 and she arrived in Australia on 15 November 2010 and began residing with the husband at the Property T property.  She says that the husband’s son and daughter-in-law moved out to live with his ex-wife.  She says that upon arrival she had $10,000 in her possession.  The husband did not support her and took all her money to pay expenses.  She says she performed all the household duties, prepared all the meals, did the laundry, cleaned the house and took care of them.

15. She says that in April 2011 she found out that the Property T property had been registered with the Registrar of Titles as being jointly owned and then as being owned equally by her and the husband as tenants in common in equal shares.  She requested the husband to transfer his interest to her but he refused.

16. The wife then says that on 11 April 2011 at the Property T property the husband, his ex-wife and daughter-in-law with threats of violence forced her to sign an “IOU” in favour of the husband for the sum of ¥900,000 RMB to affect the transfer of the husband’s interest in the Property T property to her.  She says that the amount was approximately $138,461 if the exchange rate is $1 =  ¥ 6.50 RMB.

17. The wife says that on 12 April 2011 she called police for help and later obtained an intervention order against the husband.  The husband in his first affidavit acknowledges the intervention order and says he received it when he was at the dentist.  The parties separated on 11 April 2011 and the husband has been living with his ex-wife and their son and daughter.  The wife says that in July 2012 she moved out of the Property T property and rented another residence because she was afraid of the husband.  She applied for an extension of the intervention order in March 2013.

Husband’s affidavit’s

1. The husband says that he has known the applicant since 1966.  The annexure to his affidavit is a statement which the husband says was made by her to the Australian Immigration Department.  In that the wife says that she first met the husband in 1966 when a student.  In that statement she says that in November 2005 she came across the husband again.

2. The husband says that the Property T property was purchased with money from his Chinese bank account ($100,000) and the remaining amount borrowed from a friend Ms G.  Annexed to his affidavit (S2) is a document which the husband says is a loan agreement but it is not conventionally.  It is a statement by Ms G dated 24 May 2011 which describes a request from the husband to borrow money, meeting the wife in China, the wife giving Ms G an “IOU” from the husband and then handing cash to the wife in several amounts, a total of ¥900,000.  The same document is annexed to Ms G’s affidavit and she describes as a loan agreement.  It is not a loan agreement but a statement.  Significantly it says that the wife gave Ms G an “IOU” by the husband for ¥$900,000.  In cross examination Ms G acknowledged that there was no “IOU”.

3. The husband says in his affidavit of 9 July 2013 that he is in the process of obtaining his bank statement showing the $100,000 withdrawal.  His second affidavit of 4 October 2010 annexes a bank statement which he says shows a transfer of ¥484,176.85 out of his account.  He says he transferred the money to the wife’s account to cover part of the cost of the home.  This cannot be correct because the date of the transaction is 2 February 2008 well before the purchase in August 2008.  The wife’s analysis of this transaction I will deal with later in these reasons.

4. The affidavit of 9 July 2013 annexes an “IOU” from the wife dated 11 April, 2011 it states:

   I, Ms Hai, have borrowed on several occasions the total amount of 900,000 Yuan (RMB).

   I promise that I will repay 900,000 Yuan to Mr Shoo by August 2011.

   Additional information:

   The property purchased in Melbourne was paid in full by Ms Hai.  A full repayment will be made once the property is transferred to Ms Hai’s sole ownership

5. This is the document the wife says she was compelled by force to sign.  The document is confusing.  ¥900,000 is the amount the husband says he borrowed from Ms G.  The amount he says he gave the wife to transfer to Australia for the purchase is ¥484,176.85.  The statement that the property purchased in Melbourne was paid in full by the wife is consistent with the husband’s case if what it means is that the money from him and from Ms G was given or transferred to the wife so that it could then be transferred to Australia.  Whatever it does mean the real issue is whether it was signed by the wife under duress, something she deals with in little detail and which the husband does not deal with at all.

6. Ms G in her affidavit of 16 August 2013 states that she confirms the loan to the husband and she annexes the document which the husband also annexes as the loan agreement.  She attaches copies of bank statements which she describes as “true copies of the bank withdrawals proving that I gave the cash to Ms Hai.”  In her second affidavit, which I deal with in more detail later in these reasons, the wife establishes that the bank statements are for an account in the name of the husband.  In cross examination Ms G at first continued to maintain that the statement was for her account, but when the documents which the wife annexes to her second affidavit were put to her she acknowledged that they are statements of the husband’s account.  Ms G, when cross-examined about the source of the money she says she loaned to the husband, said that it did not come from her account but that she borrowed it from friends.  She says there are no documents for these loans.  Given the conflicting accounts from Ms G, I can give her evidence no credibility.

Wife’s second affidavit

1. The wife’s second affidavit of 11 February 2014 contains a detailed account of the source of the money for the purchase of the Property T home and how that money was transferred to Australia.  She says that she has speculated in stock market shares since the 1980s and in this way built her wealth.  She repeats that when she was in Australia on or around 18 August 2008 on a tourist Visa she purchased the Property T property for $305,000 plus the costs of purchase of approximately $17,000.  She says that in addition she gave $30,000 to the husband at his request for the purchase of furniture, household appliances and a car.

2. The wife then gives the detail of where the money came from and annexes bank statements and bank documents as proof of what she says.  She says that due to Chinese foreign exchange control a Chinese citizen is only allowed to exchange USD $50,000 per annum and therefore her son, daughter-in-law and friends helped to transfer money overseas.  The following is a summary of her account.  I use the Australian dollar amounts.  The wife in her affidavit refers to the amounts in Yuan Renminbi and then calculates the exchange but I will not repeat them in every case.  I have examined the documents the wife’s annexes and they are consistent with what the wife states in her affidavit.  Each transaction she describes is supported by documents.  I will not refer to all the documents.

3. She says that the contract note for the property was on 15 September 2008 and both the first deposit of $5,000 and the second deposit of $15,250 were paid by her.  Settlement was on 20 October 2008.

4. She says the $353,000 came from $120,000 that she borrowed from her son and daughter in law in October 2008 and $233,000 being the proceeds of sale of shares she owed in China.  She paid $70,000 back to her son and daughter in law on 1 June 2012 after she sold one of her real estate properties is in China.  She annexes the sale document.

5. When she arrived in China on 7 October 2008 she borrowed $60,000 from her son, the equivalent of USD $50,000, and the same amount from her daughter-in-law.  She describes in detail how this was done.  Her son transferred ¥500,000 RMB on 18 June 2008, ¥300,000 RMB on 11 August, 2008 and ¥220,399.75 RMB on 16 October 2008 from his account with the Bank of China to her account in the Bank of China.  She said this was done because her son and daughter-in-law trusted her 30 years’ experience in financial and stock investment and they gave their income to her to financially deal with on their behalf.

6. On 13 October 2008 she transferred ¥340,000RMB to her son and daughter-in-law’s bank accounts and they then transferred the equivalent of $60,000 to her Australian HSBC bank account.

7. The wife describes how she transferred equivalent of $60,000 to a friend, (omitted) who then transferred the equivalent amount to her HSBC Australia account on 13 October 2008.

8. Another friend, (omitted), helped the wife transfer the equivalent of $20,000 which the wife says was for the purchase of furniture, household appliances and a car.  She transferred the money to (omitted)’s account on 3 November 2008 and (omitted)  transferred the same amount to the wife’s HSBC Australian account on 4 November 2008.

9. The wife says that she had her own money at (omitted) Bank (Hong Kong) Limited.  She transferred HK$269,000 to her account at HSBC Bank Hong Kong on 10 October 2008.  On 10 October 2008 she exchanged ¥20,000 RMB to HK$22,652 and deposited that amount and a further HK$88,000 to her HSBC Hong Kong account.  On the same days she exchanged HK$205,316 to $40,000 and deposited in her HSBC Hong Kong account.  As well she directly deposited $10,290 to her HSBC Hong Kong account.

10. On 16 October 2008 she exchanged HK $100,000 to $19,120.46 and deposited it to her HSBC Hong Kong account.  On 20 October 2008 she exchanged HK$84,000 to $15,486.73 and deposited it to her HSBC Hong Kong account.  On the same days she deposited $40,700 to her HSBC Hong Kong account.

11. On 20 October 2008 she transferred $123,000 from her HSBC Hong Kong account to her HSBC Australian account.

1. In addition to the descriptive paragraphs in her affidavit and the annexed documents the wife’s sets out in her affidavit a diagram or chart summarising the transactions.

2. Next in her affidavit the wife sets out material which she says shows that Ms G did not lend the husband money.

3. The wife says that the husband has a term deposit in the Industrial and Commercial Bank of China (ICBC).  She states the account number and annexes a copy of the term deposit record.  She says that on 2 February 2008 the husband transferred ¥484,176.85RMB from his securities/investment account to his savings account in ICBC.  She says this is the amount which the husband, in his affidavit of 4 October 2013, says he transferred to the wife’s account to cover part of the cost of the home.  Examination of the document annexed to the husband’s affidavit and annexure 22 of the wife’s affidavit, which identifies the account as the husband’s, shows that what the wife says is correct.  The husband’s statement must be wrong.

4. On 22 February 2008 the husband transferred RMB ¥461,900 to his account in China Merchants Bank with account number 622588780968 278.  This is the account which Ms G says is her account in annexure “G2” to her affidavit but which she subsequently acknowledged is the husband’s account.  The documents the wife annexes to her affidavit demonstrate that the account is in the name of the husband.

5. The wife says that on 5 January 2009 ¥$200,000RMB was transferred from account number (omitted) to her account and then to the respondent’s son’s account.  She said this was the way the husband saved the transfer fee.  It is further evidence that the account is the husband’s and not Ms G’s account.

6. The wife’s affidavit with its annexures demonstrates that in October 2008 she transferred amounts of money to pay the purchase price for the Property T property, the incidental expenses and a further $30,000 that was spent on furniture, household appliances and car.  I find that she did.

7. The wife’s affidavit and its annexures demonstrates that the money Ms G said in her affidavit came from her account did not.  It came from the husband’s account and went into another account in the husband’s name.  Ms G now acknowledges that it is so.  Given her change of evidence I can give no credibility to Ms G’s evidence that she borrowed money from friends to give to the wife as a loan to the husband.  I find that she did not make a loan to the husband and that she did not give or transfer to the wife money when both were in China.

8. The husband did not give evidence and he appeared as if he was incapable of doing so although no medical evidence in admissible form was put forward.  I do not need to consider how I should take this into account in assessing the weight to be given to the husband’s affidavits in determining who paid the purchase price for the Property T property.  The documents the wife annexes to her affidavit and her analysis demonstrates that what she says is correct.  She provided the whole of the purchase price for the house.

9. The wife signed documents which states that she and the husband purchased the Property T property together.  The wife said she did this on advice that as a foreigner she could not own real estate in Australia.  She says she told the husband that she wanted the property transferred into her name once she became a permanent resident.  The documentary evidence the wife has produced that she transferred sufficient money to Australia to pay the purchase price of the Property T property and other expenses corroborates what she says about the reason for the statements she and the husband owned the property together or had provided the money together.  Those documents also provide corroboration for the wife’s claim that she signed the IOU in April 2011 under duress.  I find that she did.

Other property

1. The wife says that at the commencement of the marriage she had the following assets and liabilities (using exchange rate of $1 = ¥6.5 RMB)

   a)An apartment in (omitted), China bought in 2004 for ¥680,000 ($104,615) registered in the names of her son and her as tenants in common in equal shares.  She says her son and daughter-in-law have lived there since;

   b)An apartment in (omitted), China bought in 2002 for ¥400,000 ($61,538) registered in the names of her and her son as tenants in common in equal shares.  One of her friends is staying there without paying rent;

   c)An apartment in (omitted), China bought in 2007 for ¥400,000 ($61,538}, registered under her name and her son’s as tenants in common in equal shares;

   d)Two small apartments in (omitted) China bought in May 2007 under her name alone.  She lives in one of the apartments when she is in (omitted) and the other is vacant.

   e)Shares and a small amount of cash at bank in the sum of approximately ¥1,500,000 ($230,769);

   f)She received a superannuation pension from China of $661 monthly.

2. Her liability was $120,000 she borrowed from her son and daughter-in-law to assist in the purchase of the Property T property.

3. She says that her assets at separation were the same real estate, her shares and cash at bank were much less, her superannuation pension from China was $753 monthly and she owed $50,000 to her son and daughter-in-law.

4. Her assets at the date she commenced the application on 29 May, 2013 were the real estate except for the apartment in (omitted), which she had sold, shares of approximately ¥200,000 ($30,768) and cash at bank ¥100,000 ($15,284).  Her superannuation pension from China, was $846 a month and she was receiving $1200 per rent from the Property T property.  She borrowed ¥200,000 ($30,769), from a friend to cover living expenditure and legal costs.

5. In addition the wife has her interest in the Property T property.

6. The husband says that at the commencement of the relationship his assets were:

   a)an apartment in (omitted) China with an estimated value of $400,000;

   b)money in bank estimated $300,000;

   c)(businesses omitted) estimated $1 million.

7. The husband says at the time of filing his response on 9 July 2013 he had $7000 in cash, 2 Rado watches, some chains and gold rings and his interest in the Property T property.

8. The husband gives no further information about his property.  The wife says at the commencement of the marriage the husband had these assets:

   a)about $1 million bought from China for the purpose of investment in (business omitted) and (business omitted) in about 2006;

   b)two apartments in (omitted), China bought for ¥$500,000 ($76,923) registered under his name;

   c)three apartments in (omitted) bought in May 2007 for the sum of ¥500,000 ($6123).  She says two are registered in his ex-wife’s name and one is registered under his name;

   d)shares and cash in hand or at bank.  The wife gives no value.

9. The wife says that at separation so far as she was aware the husband had the same assets.  She was not sure of the value of the (business omitted) and (business omitted).  She says he had a term deposit at ICBC Bank, China of ¥125,000 ($19,230).

Asset by asset approach

1. Neither party proposes that any property apart from the Property T property should be the subject matter of any order.  They adopt the asset by asset approach to assessing contributions rather than the global approach.  This is understandable.  The parties married on (omitted) 2009.  The parties’ period of cohabitation was from (omitted) 2010 when the wife arrived in Australia to live permanently, until (omitted) 2011.  Prior to that they had spent 7 to 10 days together in China every three months.  Leaving aside the Property T property, in terms of s.79(4) of the Family Law Act 1975 (Cth):

   a)neither party had made a financial contribution directly or indirectly to the acquisition, conservation or improvement of any of the property of the other party;

   b)neither party had made a contribution (other than a financial contribution,) directly or indirectly to the acquisition conservation or improvement of any of the property of the other party;

   c)The period of cohabitation was so short that any contribution made by a party in the capacity of homemaker is insignificant.  There are no children of the marriage;

   d)Neither proposed order will affect the earning capacity of either party.

2. Adopting the asset by asset approach there is no dispute that the order should provide for each party to retain the property they have apart from the Property T property.

Just and equitable

1. It is just and equitable to make an order.  The marital relationship has broken down of the parties are now divorced.  The basis upon which they shared their lives and any sharing of finances is gone.

Property T

1. So far as the Property T property is concerned I have found that the wife made the whole of the financial contribution.  The only contribution the husband made was his participation in the purchase process which is an insignificant contribution.  There is no evidence that during the period that he lived in the house from late 2008 until 11 April 2011 that he made any non-financial contribution.  I have already found that the period of cohabitation was so short that any contribution made by either party in the capacity of homemaker is insignificant.  Thus, I find that the wife made the whole of the contributions for the Property T property.  The wife has received rent for the property since separation but I am satisfied the husband received the State Revenue funds and that the wife contributed $30,000 for furniture household appliances and car and $10,000 for living expenses.  None of these matters affect my assessment that the wife made all the financial contribution.

Section 75 (2)

1. The next step is to consider whether there should be any adjustment made for the matters described in s.75(2) of the Family Law Act. The wife is aged 67 and the husband 61. Neither is in paid employment.

2. The wife has a pension which at the time of the hearing was $846 a month.  At the time of the hearing she was receiving the rent from the Property T property.  The husband gives his occupation as disability pensioner and his income as $435 per week.  He lives with his son and daughter-in-law.  The wife does not allege any ill health.  I have already referred to the husband’s appearance but there is no medical evidence about his health.  The husband was represented for a time.  The case was fixed for a final hearing on an earlier occasion and then adjourned.  The husband and his litigation guardian have had ample time to prepare the case.  The husband was represented by his son as litigation guardian and at the hearing the son appeared without legal representation.  While the husband’s disadvantages have to be acknowledged the case remains one where there is no admissible evidence before the court about the husband’s medical condition.

3. This probably does not matter.  The wife has property in China already described in these reasons.  The wife disputes the husband’s claim of having very little.  No explanation is given of what happened to the (businesses omitted) with a value of $1 million and the $300,000 that the husband says he had at the commencement of the relationship.  The wife says he had other property and she has produced evidence of a term deposit bank account the husband has not disclosed.  I am satisfied that the wife has established by documentary evidence that the husband’s claim that he provided money for the purchase of the Property T property is wrong.  His statements in his affidavits cannot be given any credibility.  I am left in a position where it may be that the husband has a (business omitted) and (business omitted) of substantial value which presumably is an income producing asset.  The husband does not allege there was any debt associated with the (businesses omitted) at the time of the commencement of the relationship.  The husband gives no explanation of the $300,000 in cash he said he had.

4. The position I am in for assessing whether there should be any adjustment under s.75(2) is that I have evidence of the wife’s modest income and assets in China and evidence from the husband that he had a substantial and presumably income producing asset in Australia and a substantial amount of cash at some stage with no explanation of what happened to it in circumstances where I cannot give any credibility to the evidence I do have from him. The husband’s income, property and financial resources might exceed the wife’s. In the circumstances there can be no adjustment under s.75(2).

Conclusion

1. The consequence is there will be an order that the husband transfer his interest in the Property T property to the wife.  I am satisfied it is just and equitable to make the order.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 14 October 2014