Heng and Long and Ors - [2018] FamCA 682

FAMILY COURT OF AUSTRALIA

HENG & LONG & ORS

[2018] FamCA 682

FAMLY LAW – PROPERTY – Where the husband and wife sought orders regarding the family trust’s rights under two contracts for purchase of two “off the plan” properties – Where the wife sought disclosure orders directed at Bank of China – Where the wife sought variation of previous interim orders regarding education expenses for children – Where the husband and wife have temporary resident visas due to expire in March 2019 – Where all applications dismissed and matter expedited for trial in February 2019

Jones v Dunkel (1959) 101 CLR 298
Gao v Zhu [2002] VSC 64
Gucci America Inc., et al v Weixing Long, et al [2015] No 10 Civ. 4974 (RJS), SDNY, USA
MacKinnon v Donaldson, Lufkin and Jenrette Securities Corporation [1986] Ch 482

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT:

Ms Heng

FIRST RESPONDENT:

Mr Long

SECOND RESPONDENT:

Mr Song

THIRD RESPONDENT:

Ms Long

FILE NUMBER:

BRC

12699

2016

DATE DELIVERED:

6 September 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

27 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Yu

SOLICITOR FOR THE APPLICANT:

Mr Hsu

THE FIRST RESPONDENT:

In Person

THE SECOND RESPONDENT:

No Appearance

THE THIRD RESPONDENT:

In Person

Orders

That the applications for interim orders contained in the First Respondent Husband’s Amended Application in a Case filed by leave on 27 August 2018 are dismissed.
That the applications for interim orders contained in the Applicant Wife’s Amended Response to an Application in a Case filed 24 August 2018 are dismissed.
That paragraphs (10)(vi) and (vii) of the Orders of Justice Forrest made 25 October 2017 be discharged, in respect of each of the Applicant Wife and First Respondent Husband’s son and daughter, as and when each of those children finishes school this year, 2018.
That on or before Friday, 28 September 2018, the First Respondent Husband shall file and serve an affidavit in which he deposes to the circumstances as to the making of his claim on an insurance policy that was held with Company B insuring the motor car that was registered in his name that was written off in an accident that occurred on 16 May 2107 whilst driven by the Applicant Wife, and as to his receipt and expenditure of the funds paid out on the claim by Company B, with reference to the specific dates when the claim was first made by him, when the money was received by him and when he disbursed those funds. In that same affidavit, he shall depose to the factual circumstances by which he asserts his adult daughter, the Third Respondent, has a 27 per cent beneficial interest in the Suburb C property registered in his sole name.
That on or before Friday, 28 September 2018, the Third Respondent shall file and serve an affidavit in which she deposes to the factual circumstances by which she asserts she and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Heng and Long and Ors

Details

AGLC: Heng and Long and Ors [2018] FamCA 682
Case: [2018] FamCA 682
Decision Date: 6 September 2018

CaseChat Overview and Summary

The case of *Heng and Long* involved applications by the Applicant Wife and the First Respondent Husband for interim orders, as well as applications to discharge existing orders concerning the parties' son and daughter. The proceedings were before Justice Forrest. The dispute centred on property adjustment and parenting matters.

The court was required to determine whether to grant the interim orders sought by both parties, and whether to discharge existing orders relating to the children. Further, the court needed to establish directions for the progression of the case towards trial, including the filing of specific affidavits, the preparation of a joint balance sheet, and the submission of case outlines.

Justice Forrest dismissed the applications for interim orders made by both the Applicant Wife and the First Respondent Husband. The court also ordered the discharge of specific paragraphs from previous orders concerning the parties' son and daughter, to take effect as each child finished school in 2018. The court then set out detailed directions for the parties to file affidavits addressing specific claims regarding an insurance policy payout and beneficial interests in a property, and for the First Respondent Husband to keep the Applicant Wife's solicitors informed about a property purchase. A trial was scheduled for February 2019, with directions for the filing of further affidavits, a joint balance sheet, and case outlines. A compliance hearing was also scheduled.

Orders

Orders of the court

That the applications for interim orders contained in the First Respondent Husband’s Amended Application in a Case filed by leave on 27 August 2018 are dismissed.

That the applications for interim orders contained in the Applicant Wife’s Amended Response to an Application in a Case filed 24 August 2018 are dismissed.

That paragraphs (10)(vi) and (vii) of the Orders of Justice Forrest made 25 October 2017 be discharged, in respect of each of the Applicant Wife and First Respondent Husband’s son and daughter, as and when each of those children finishes school this year, 2018.

That on or before Friday, 28 September 2018, the First Respondent Husband shall file and serve an affidavit in which he deposes to the circumstances as to the making of his claim on an insurance policy that was held with Company B insuring the motor car that was registered in his name that was written off in an accident that occurred on 16 May 2107 whilst driven by the Applicant Wife, and as to his receipt and expenditure of the funds paid out on the claim by Company B, with reference to the specific dates when the claim was first made by him, when the money was received by him and when he disbursed those funds. In that same affidavit, he shall depose to the factual circumstances by which he asserts his adult daughter, the Third Respondent, has a 27 per cent beneficial interest in the Suburb C property registered in his sole name.

That on or before Friday, 28 September 2018, the Third Respondent shall file and serve an affidavit in which she deposes to the factual circumstances by which she asserts she and her mother have a joint 27 per cent beneficial interest in the Suburb C property registered in the First Respondent Husband’s sole name.

That until further Order the First Respondent Husband shall keep the Applicant Wife’s solicitors informed in writing as to developments in respect of the contract to purchase an apartment in the D development located at E Street, Brisbane in which F Pty Ltd ATF G Trust is the purchaser, as and when any such developments occur.

That the directions hearing currently listed before a Registrar on 13 September 2018 be vacated.

That the matter be listed for trial before Justice Forrest in Brisbane commencing at 10.00 am on Monday, 11 February 2019 at which all competing applications for property adjustment orders and parenting orders will be heard.

That the trial fee shall be paid by all of the parties in equal shares within one month of the date of these orders.

10.

That leave be granted to the parties to, on or before Friday, 30 November 2018, file and serve one affidavit each, and one affidavit from each witness upon which each intends to rely as his or her evidence in chief at the trial in February 2019.

11.

That except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavit, without the leave of the Court.

12.

That the Applicant Wife’s solicitor and the First Respondent Husband shall collaborate on the preparation of a document being a balance sheet in which they set out the property of the parties or either of them as contended for by each of the Applicant Wife and the First Respondent Husband with all matters, including as to the identification and value of items of property, upon which they agree being clearly stated and with all matters upon which they disagree being clearly stated, including as to the identification and value of items of property. That balance sheet should also have set out on it any amounts contended for by either party as being amounts to be notionally taken account of by the Court when determining any just and equitable property adjustment orders as being amounts representing property or capital already had and/or spent by one or other of the party with explanations as to why they should be taken into account. The Applicant Wife’s solicitor shall file that balance sheet when it has been finalised with the First Respondent Husband but at least on or before Friday, 30 November 2018.

13.

That on or before Friday, 1 February 2019, each of the four parties shall make, file and serve a Case Outline document that contains:

(i) A list of all affidavits they rely upon as their evidence for the trial;

(ii) A draft of the property adjustment orders and, in respect of the Husband and the Wife, the parenting orders each requires;

(iii) A summary of argument and a list of any legal authorities each seeks to rely upon.

14.

That the matter be listed for a compliance hearing before Justice Forrest at 9.30 am on Monday, 3 December 2018 where the Court will be advised that the matter is ready for the trial and approximately how long the trial will take to complete.

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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