FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hien & Waldron (No 3) [2023] FedCFamC2F 1293
File number(s): ADC 1763 of 2021 Judgment of: JUDGE MCGINN Date of judgment: 10 October 2023 Catchwords: FAMILY LAW – Interim Property Application – Third respondent company – Applicant’s claim of “equitable interest” in property held by Third Respondent company – resulting trust – constructive trust – security for costs – summary dismissal application dismissed – alternative disclosure application – sale of property order made Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Banham & Banham [2021] FamCAFC 132
Calverley v Green [1984] 155 CLR 242
D & D [2006] FamCA 339; (2006) FLC 93-260
Ebner & Pappas [2014] FamCAFC 229; (2014) FLC 93-619
Gong & Zao [2021] FamCAFC 110
Karlsson & Karlsson [2020] FamCAFC 207
Ritter & Ritter & Anor [2020] FamCAFC 86
Division: Division 2 Family Law Number of paragraphs: 179 Date of hearing: 28 August 2023 Place: Adelaide Solicitor for the Applicant: Doconade Adelaide Lawyers Counsel for the First Respondent: Ms Read Solicitor for the First Respondent: Starkie Family Law Counsel for the Second and Third Respondents: Ms Miller Solicitor for the Second and Third Respondents: Stanley & Co Lawyers Solicitor for the Independent Children's Lawyer: Denise M Rieniets & Associates Pty Ltd ORDERS
ADC 1763 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HIEN
Applicant
AND: MR WALDRON
First Respondent
MS WALDRON AND MR B WALDRON
Second and Third Respondents
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MCGINN
DATE OF ORDER:
10 OCTOBER 2023
IT IS ORDERED:
1.That pursuant to s 192(4) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that the de facto wife’s claim of seeking a declaration in respect of C Street, Suburb D be limited to a claim on the basis of the existence of a constructive trust.
2.That paragraphs 2 and 3 of the third respondent’s Application in a Proceeding dated 29 May 2023 and sealed 14 June 2023 do stand dismissed.
3.That paragraph 5 of the said Application be adjourned to 9:30am on 30 November 2023 (20 minutes allowed) for directions, including trial directions and receive submissions from the parties in respect of the order referred to in paragraph 171 of the judgment delivered this day.
4.That order 2 of the orders of 18 November 2022 be discharged and the third respondent be at liberty to offer the property at C Street, Suburb D, for public sale.
5.That the third respondent do all things and execute all documents necessary to cause the proceeds of sale of Suburb D to be applied:
(a)Firstly, in payment of the outstanding mortgage, sales costs and any other expenses…
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- Hien & Waldron (No 3) [2023] FedCFamC2F 1293
- Case
- [2023] FedCFamC2F 1293
- Decision Date
CaseChat Overview and Summary
The court faced several legal issues, including the scope of Ms Hien's claim against the third respondent company, whether a resulting or constructive trust existed, and whether security for costs should be granted. The court also considered an application for summary dismissal and an alternative application for disclosure and sale of the property. Ms Hien's claim was initially dismissed on the basis of an equitable interest but was allowed to proceed on the basis of a constructive trust. The court also dismissed an application for security for costs and granted an alternative application for the sale of the property.
The court's reasoning led to several orders. Ms Hien's claim was limited to a constructive trust, and the application for security for costs was dismissed. A sale of the property was ordered, with the proceeds to be applied to outstanding debts, a sum to the third respondent’s solicitor, and the balance held pending further orders. The question of compensation and costs was reserved for trial. The third respondent was permitted to sell the property, with specific instructions on how the proceeds should be handled.
In summary, the court ordered the property to be sold and the proceeds to be applied in a prescribed manner, while reserving the issues of compensation and costs for a later trial. The specific orders reflect the court's determination of the property dispute and procedural issues presented in the case.
Orders
Orders of the court
ADC 1763 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS HIEN
Applicant
AND:
MR WALDRON
First Respondent
MS WALDRON AND MR B WALDRON
Second and Third Respondents
AND:
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MCGINN
DATE OF ORDER:
10 OCTOBER 2023
IT IS ORDERED:
1. That pursuant to s 192(4) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that the de facto wife’s claim of seeking a declaration in respect of C Street, Suburb D be limited to a claim on the basis of the existence of a constructive trust.
2. That paragraphs 2 and 3 of the third respondent’s Application in a Proceeding dated 29 May 2023 and sealed 14 June 2023 do stand dismissed.
3. That paragraph 5 of the said Application be adjourned to 9:30am on 30 November 2023 (20 minutes allowed) for directions, including trial directions and receive submissions from the parties in respect of the order referred to in paragraph 171 of the judgment delivered this day.
4. That order 2 of the orders of 18 November 2022 be discharged and the third respondent be at liberty to offer the property at C Street, Suburb D, for public sale.
5. That the third respondent do all things and execute all documents necessary to cause the proceeds of sale of Suburb D to be applied:
(a) Firstly, in payment of the outstanding mortgage, sales costs and any other expenses attached to Suburb D;
(b) Secondly, in the sum of $135,000 to the third respondent’s solicitor’s trust account;
(c) Thirdly, the balance then remaining be held in the third respondent’s solicitor’s trust account to abide further order of this Court.
6. That the question of compensation and/or damages payable pursuant to the applicant de facto wife’s undertaking given to this Court on 18 November 2022 be reserved to trial.
7. That the third respondent’s costs in respect of its Application in a Proceeding sealed 14 June 2023 and the de facto wife’s costs of her Response to an Application in a Proceeding sealed 16 July 2023 be reserved to trial.
8. That the said Application in a Proceeding and the said Response to an Application in a Proceeding do otherwise stand dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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