Hsu & Lau
[2024] FedCFamC2F 1165
•23 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hsu & Lau [2024] FedCFamC2F 1165
File number(s): SYC 5813 of 2022 Judgment of: JUDGE BECKHOUSE Date of judgment: 23 December 2024 Catchwords: FAMILY LAW – PROPERTY– Where wife seeks to vary or set aside Final Orders made on 2 May 2013 pursuant to s 90SN(1)(b) – (c) – Where husband seeks to enforce those Final Orders – Finding of default by both parties – The Final Orders be varied or set aside in substantive proceedings. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 79A, 90SM, 90SN, 106A
Cases cited: Blackwell & Scott (2017) FLC 93-775
Cawthorn & Cawthorn (1998) FLC 92-805
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Guild & Stasiuk [2020] FamCA 348
La Rocca & La Rocca (1991) FLC 92-222
Monticone & Monticone (1990) FLC 92-114
Oastler & Oastler (1993) FLC 92-390
Re Young and Harston’s Contract (1885) 31 Ch D 168
Rohde & Rohde (1984) FLC 91-592
Wernham & Campagnola [2012] FamCAFC 137
Macquarie Dictionary, Pan Macmillan Australia, 2024
Division: Division 2 Family Law Number of paragraphs: 135 Date of hearing: 26-27 April 2023, 20-21 February 2024 & 5 April 2024 Place: Sydney Counsel for the Applicant: Mr Morahan Solicitor for the Applicant: Chen Shan Lawyers Counsel for the Respondent: Mr Connor Solicitor for the Respondent: Taylor & Scott Lawyers ORDERS
SYC 5813 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HSU
Applicant
AND: MR LAU
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
23 DECEMBER 2024
THE COURT ORDERS THAT:
1.The final property orders made by the Honourable Justice Aldridge on 2 May 2013 be varied or set aside pursuant to s 90SN(1)(c) of the Family Law Act 1975 (Cth).
2.The substantive proceedings be listed for Directions before Judge Beckhouse on 22 January 2025 at 9.30 am by Webex for the making of trial directions.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The parties to these proceedings are the applicant de facto wife, Ms Hsu and the respondent de facto husband, Mr Lau.
They were in a de facto relationship of around 17 years duration and finally separated in 2008. On 2 May 2013, Aldridge J (“the trial Judge”) made orders on a final basis adjusting the parties’ interests in property (“the Final Orders”).
The parties set about implementing the Final Orders but for various reasons, which are the subject of these proceedings, they did not effect a final division of the assets of the relationship pursuant to the Final Orders.
Both parties now approach the Court for relief in circumstances where the final property settlement has not been carried out pursuant to the Final Orders.
Ms Hsu sought to set aside some of the Final Orders and sought alternative relief pursuant to s 90SN(1)(b) – (c) of the Family Law Act 1975 (Cth) (“the Act”). She sought several consequential orders, in effect, to replace the Final Orders. Her application is opposed by Mr Lau. He argued that the Final Orders should be enforced.
On 26 September 2022, whilst procedural orders were made to progress this matter to hearing, it was noted that the matter be listed for a threshold hearing on the issue of whether or not the Final Orders should be varied or set aside. Subsequently, at the Compliance and Readiness Hearing on 17 November 2022, the matter was listed for hearing over two days for that threshold issue to be determined.
The threshold matter was listed for a hearing over two days but ultimately required five days to hear the Amended Initiating Application filed by Ms Hsu on 20 October 2022 (“the s 90SN Application”) and the Enforcement Application filed by Mr Lau on 26 September 2022 (“the Enforcement Application”). This is deeply regrettable for reasons that will be discussed later in this Judgment.
EVIDENCE
Each of the parties filed Case Outline documents setting out the material they relied upon at the final hearing.
Ms Hsu relied upon the following documents:
·The s 90SN Application
·Financial Statement of Ms Hsu filed on 20 October 2022
·Affidavit of Ms Hsu filed on 19 August 2022
·Affidavit of Ms Hsu filed on 21 April 2023
Mr Lau relied upon the following documents:
·Amended Response to Initiating Application filed on 13 April 2023
·Enforcement Application
·Affidavit of Mr Lau filed on 13 April 2023
·Affidavit of translator filed on 29 November 2022
·Financial Statement of Mr Lau filed on 13 April 2023
·Financial Questionnaire of Mr Lau filed on 16 November 2022
·Judgment of the trial Judge of 2 May 2013 (“2013 Judgment”)
I have also had regard to the material marked and tendered as exhibits.
The parties were both legally represented.
The parties were each cross-examined.
Whilst I have not referred to every aspect of the evidence, I have taken it all into account and considered it.
There were some factual matters in dispute that I have had to determine. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities and, in what follows, statements of fact constitute findings of fact.
PROPOSALS
In the s 90SN Application, Ms Hsu sought that the Final Orders be declared as not just and equitable and for them to be set aside or varied. She proposed to retain the property at D Street, Suburb S (“the Suburb S Property”) and distribute 45 per cent of the asset pool which she contended should consist of the Suburb S Property and the property at L Street, Suburb C, Country AA (“the Suburb C Property”) and the property at M Street, Suburb B, Country AA (“the Suburb B Property”). She argued that the properties in Country AA should be included (and valued at today’s date) because they have “not been dealt with by effect of a final property settlement”.
Mr Lau contended that the Final Orders made by the trial Judge on 2 May 2013 should not be discharged, set aside or varied (except in respect of enforcement to give effect to those Final Orders). In the Minute of Order dated 26 April 2023, Mr Lau proposed that the Final Orders be enforced by selling the Suburb S Property and splitting the proceeds of sale so that he receives 45 per cent of the net value of the asset pool, and Ms Hsu receives 55 per cent. To give effect to this, he proposed that values are taken at the date of the Final Orders, with the exception of the Suburb S Property.
RELEVANT FACTS AND PROCEDURAL BACKGROUND
Ms Hsu was born in 1964 and she is aged 60.
Mr Lau was born in1961 and he is aged 63.
The parties have two daughters, Ms Y, aged 32, and Ms Z, aged 29. They live with Ms Hsu.
The parties lived in a de facto relationship from 1991 to 2008.
Following a four-day contested hearing on 4, 5, 6 and 7 February 2013 (“the 2013 final hearing”), Final Orders were made by the trial Judge on 2 May 2013. The parties’ total asset pool at that time comprised of:
·the Suburb S Property
·E Street, Suburb F
·the Suburb C Property
·the Suburb B Property
·Motor Vehicle 1
By way of summary the Final Orders provided that:
(a)Ms Hsu is to have all right and entitlement to the Suburb B Property;
(b)Mr Lau is to have all right and entitlement to the Suburb C Property; and
(c)the parties are to take all necessary steps to sell the Suburb S Property and the Suburb F Property with the balance divided between the parties so that, considering the property retained by the parties, there be a distribution of the net total assets of 45 per cent to Mr Lau and 55 per cent to Ms Hsu. Notably, this order was not time bound, rather the Final Orders required the Suburb S Property and the Suburb F Property to be listed “for sale by public auction at the earliest possible date.”
Events since the making of the Final Orders
In 2013, the Suburb F Property was sold at auction in compliance with the Final Orders. I observe the method of sale was not in accordance with the Final Orders. Mr Lau deposed that the Suburb F Property was sold by Westpac Bank under the powers of mortgagee foreclosure. Regardless of the process for sale, the net sale proceeds were distributed on a 45/55 per cent basis.
The properties in Country AA have remained with the same ownership status as at the 2013 final hearing. Namely, the Suburb B Property is registered in the name of Ms Hsu’s sister and the Suburb C Property is registered in the name of Mr Lau’s parents.
In 2013, the Suburb S Property was put up for auction but not strictly in accordance with the Final Orders (“the 2013 auction”). The property was passed in. Mr Lau did not attend the auction to sign the contract for sale. I will need to determine a range of controversies around this event.
In 2014, Ms Hsu applied to the Australian Property Institute for the appointment of a valuer to undertake a valuation of the Suburb S Property. In 2014, Mr BB was appointed. There were delays encountered due to a lack of cooperation by Mr Lau, but eventually a valuation report was completed in 2015 (“the 2015 valuation report”).
After the 2015 valuation report was received, correspondence passed between the legal representatives for the parties sporadically for a 12 month period. In that correspondence, each party made proposals as to how they might resolve the impasse that had arisen between them.
From 2016 until 2020, there appears to have been no communication between the parties and/or their legal representatives. Ms Hsu remained living in the Suburb S Property with the adult children.
In early 2020, the legal representative for Mr Lau wrote to Ms Hsu. He sought to enforce the Final Orders to “finalise all financial matters as between the parties.” Ms Hsu resisted the sale of the Suburb S Property because she:
(a)was concerned about selling the house during COVID;
(b)argued that the proceeds of sale could not be distributed without having regard to the values of the properties in Country AA; and
(c)proposed that she retain the Suburb S Property.
On 29 October 2020, the legal representative for Mr Lau proposed that he would “resume residence” at the Suburb S Property from 10 November 2020, and he requested the provision of a set of keys to the property and proposed allocating rooms for use on the basis of a marked-up floor plan.
On 13 April 2021, the legal representative for Mr Lau proposed that the Suburb S Property be sold in accordance with the Final Orders. Ms Hsu did not agree.
On 14 May 2021, a further letter was sent by the legal representative for Mr Lau requesting that the Suburb S Property be auctioned.
On 7 June 2021, Mr Lau filed an Application in a Proceeding seeking that a Registrar, pursuant to s 106A of the Act, sign an Australian Property Institute valuer nomination form, to execute the sale of the Suburb S Property pursuant to the Final Orders (“the s 106A Application”). On 21 December 2021, Judicial Registrar Mordaunt did so.
In mid-2022, property valuer Mr CC, who was nominated by the Australian Property Institute, released his valuation report dated mid-2022 (“the 2022 valuation report”) valuing the Suburb S Property at $3,500,000. The report was served upon Ms Hsu on 8 July 2022.
On 19 August 2022, Ms Hsu applied to set aside and vary the Final Orders seeking alternative relief pursuant to s 79A(1)(b)-(c) (“the Initiating Application”). She later filed the s 90SN Application. By way of response, Mr Lau filed the Enforcement Application.
The matter was listed for final hearing over two days on 26 and 27 April 2023 with respect to the s 90SN Application filed by Ms Hsu and the Enforcement Application filed by Mr Lau. The parties spent much of this time in negotiation and then on objections. Consequently, it was stood over part heard until 20 and 21 February 2024. The matter had still not concluded after those two days of hearing and finally, on 5 April 2024, the hearing concluded.
THE LAW
Section 90SN(1)(b) – (c) of the Act relevantly provides:
(1)If, on application by a person affected by an order made by a court under section 90SM in property settlement proceedings, the court is satisfied that:
…
(b)in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c)a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 90SM in substitution for the order so set aside.
The hearing focused on the s 90SN application. Ms Hsu sought to update valuations for the properties in Country AA as this would have allowed the Court to deal with the substantive s 90SM application. That application was denied.
The Full Court in Oastler & Oastler (1993) FLC 92-390 at 80,006 observed that “there should be one proceeding only in which the proceedings to vary or set aside the order and if appropriate, to make another order, should be disposed of.”
However, in Wernham & Campagnola [2012] FamCAFC 137, the Full Court observed at [23] (in relation to the mirror provision):
As is well-known, s 79A of the Act is not a provision which is intended to, or operates as an avenue of redress for a party who has, or believes he or she has, in the light of subsequent events, made a bad bargain. That is why, as the authorities reveal, there are cases, particularly where a long period has intervened between the making of the orders which give rise to the s 79A application and the s 79A application, for having a threshold determination.
(Citations omitted)
Whilst case law has found that the applications are best dealt with together, earlier procedural and trial directions made had the effect of listing this matter for hearing of the threshold issue only.
Accordingly, this Judgment determines:
(a)whether or not circumstances have arisen since the making of the Final Orders that make it impracticable for the Final Orders to be carried out; or alternatively,
(b)did either party default in the carrying out of an obligation imposed by the Final Orders and, if so, is it just and equitable to vary the Final Orders or to set the Final Orders aside and make another order in substitution for the Final Orders?
If I am satisfied that one of the grounds to vary or set aside the Final Orders is made out, I will then hear from the parties at a separate hearing on how that discretion should be exercised.
In his Enforcement Application, Mr Lau sought to enforce Orders 5 to 7 of the Final Orders contending that it is neither impracticable for the Final Orders to be carried out nor impracticable for a part of the Final Orders to be carried out. Specifically, he stated “[t]here is nothing that prevents the sale of the [Suburb S] Property finally taking place”.
Therefore, if I answer each of the two questions arising from s 90SN(1)(b) – (c) in the negative, I will proceed to deal with Mr Lau’s Enforcement Application.
HAVE CIRCUMSTANCES ARISEN THAT MAKE IT IMPRACTICABLE FOR THE ORDER TO BE CARRIED OUT? (S 90SN(1)(B))
Order 6(i) of the Final Orders required that the Suburb S Property and the Suburb F Property be listed for auction “at the earliest possible date.” Ms Hsu deposed that in 2013 after Ms Z’s exams, she started to prepare for the Suburb S Property to be listed for auction. During cross-examination, Mr Lau accepted that in 2013 he had agreed to a postponement of the auction because Ms Z was sitting exams.
Ms Hsu deposed that she took the following steps to sell the property:
(a)tidied the house, undertook repairs and refurnished the home;
(b)appointed a real estate agent, including signing an agency agreement;
(c)appointed her legal representative to act on the sale and prepare a contract for sale; and
(d)attended the auction in 2013.
Mr Lau did not attend the 2013 auction. During cross-examination, he said that he did not attend because he only found out about it in late 2013. He also said that his legal representative sent him a copy of the contract for sale in late 2013, and he did not have time to read or instruct his legal representative about it.
Ms Hsu gave a different account. During cross-examination, she said that Mr Lau was notified about the 2013 auction in mid-2013, which is when she informed him, through a friend, that an auction would take place after Ms Z’s exams.
During cross-examination, Mr Lau was asked whether he was aware that in late 2013 the legal representative for Ms Hsu had sent his legal representative a copy of the sales inspection report and the auction agency agreement in respect of the 2013 auction. He replied, “I don’t know” and when asked why he did not know, Mr Lau responded:
Because my lawyer did not provide any documents to me stating that the property would be auctioned on […]. And my lawyer did not ask me to sign any document either.
(Transcript 21 February 2024, p.218 lines 25 – 27)
During cross-examination, Mr Lau confirmed that he “knew [in late] 2013 that the auction was going to occur [in late] 2013”.
After the failed 2013 auction, the parties corresponded via their legal representatives, sometimes regularly and at other times sporadically.
(a)On 11 March 2014, Mr Lau, through his legal representative, sent Ms Hsu correspondence raising complaints about the 2013 auction process for the Suburb S Property.
(b)Over the next 12 month period, the parties corresponded about these issues.
(c)On 7 May 2015, Mr Lau’s legal representative proposed that the parties list the Suburb S Property for sale with the price of listing to be determined by the appointed real estate agent. Mr Lau also requested that Ms Hsu propose three real estate agents and for him to nominate one to sell the Suburb S Property. At least two more pieces of correspondence were exchanged without progress.
(d)Twelve months later, on 3 May 2016, Ms Hsu’s legal representative sent a letter to Mr Lau noting that to list the Suburb S Property back to auction would cause “enormous inconvenience including but not limited to the wasted time, costs and legal fees” specifically in circumstances where due to Mr Lau’s “refusal to cooperate and delay… the [2013] auction was not successful”.
(e)Inexplicably little happened to progress the matter for another four years until 22 January 2020, when Mr Lau’s legal representative sent correspondence seeking compliance with the Final Orders to finalise the financial matters between the parties.
(f)By late 2020, perhaps in frustration, Mr Lau attended the Suburb S Property with his wife on two occasions. The police were called on each occasion to move them on.
(g)On 16 April 2021, Ms Hsu’s legal representative sent correspondence that she was not opposed to the auction but would prefer to pay out Mr Lau since the auction and settlement process could take “6-9 months and would be incredibly invasive and emotionally stressful for her and the parties two daughters”.
Clearly, there have been attempts by both parties to sell the Suburb S Property. Initially, the parties consented to delaying the sale to minimise disruption for Ms Z. Subsequently, there have been attempts to sell which have been hindered by the parties’ failure to agree on the sale process.
When Ms Hsu proceeded with the 2013 auction, she did not do so in accordance with the Final Orders. She unilaterally appointed a solicitor to act on the conveyance and a real estate agent to act on the sale, without first reaching agreement with Mr Lau in accordance with the Final Orders.
I prefer Ms Hsu’s account of the 2013 auction process. I concluded that Mr Lau knew that the property was listed for sale and yet he decided that he would not participate in the process because he believed that it was not listed in accordance with Order 6 of the Final Orders.
Relevant Legal Principles
“Impracticability” in s 90SN(1)(b) of the Act may concern “the happening of events which cannot be reasonably foreseen, which will have the effect of causing an injustice to one of the parties if the happening of such events is not given effect to” (La Rocca & La Rocca (1991) FLC 92-222 at 78,538).
But “impracticability” has been held to be something less than an impossibility. In Rohde & Rohde (1984) FLC 91-592 (“Rohde”), Gee J observed that an order may be “impracticable” because it is “unmanageable” and with regard to “impracticability” in s 79A(1)(b) Gee J states at 79,768 that:
(a)It is not enough that circumstances have arisen since the order was made which make it unjust for the order or part of the order to be carried out; …
(b)The word “impracticable” means, gleaning a definition from the Shorter Oxford Dictionary, “not practicable”; “that cannot be carried out or done”; “practically impossible”; “unmanageable'”; “intractable”.
(c)“‘Impracticability’ is a conception different from that of ‘impossibility’; the latter is absolute, the former introduces at all events some degree of reason and involves some regard for practice”…
(d)Provided that more than one circumstance exists, and that the circumstances [arose since the orders], it does not matter what the circumstances are or by whom they are brought about.
(Emphasis in original; citations omitted)
As a concept, impracticability “involved something more than making it more difficult but less than proof that it was impossible to comply with the orders” (Guild & Stasiuk [2020] FamCA 348 at [430] citing Rohde).
In Cawthorn & Cawthorn (1998) FLC 92-805 (“Cawthorn”) the Full Court said at 85,059:
My own view is that the concept of impracticability, as referred to in this section, is akin to the application of the doctrine of frustration in contractual matters. What the Parliament is concerned with and what ought to be concerning the Court is the happening of events which cannot be reasonably foreseen, which will have the effect of causing an injustice to one of the parties if the happening of such events is not given effect to.
The appropriate application of s 90SN(1)(b) here requires asking whether circumstances have arisen which make it impracticable to carry out the orders, and whether those circumstances could not reasonably have been contemplated.
Is it impracticable for the Final Orders to be carried out?
Order 5 provided:
(5)That the parties are to take all necessary steps to sell the properties at [D Street Suburb S] and [E Street Suburb F].
It has to be read in conjunction with Order 6 which provides a mechanism for the sale of those properties:
(6) That for the purpose of implementing the sales referred to in Order 5 above the parties shall do the following:
(i)the parties shall list the properties for sale by public auction at the earliest possible date at a price to be agreed between the parties and failing such agreement, at a price nominated by the President of the NSW Division of the Australia Property Institute or his/her nominee;
(ii)with such agent as the parties may agree to appoint and failing agreement as to the agent within fourteen (14) days to any such agent nominated by the President of the NSW Division of the Australian Property Institute, ("the agent"), the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;
(iii)the parties shall each cooperate in every way with the agent including (without limiting the generality of the foregoing):
(a)making the keys available to the agent;
(b)allowing inspection of the properties at all reasonable times requested by the agent;
(c)doing or saying nothing to hinder or prevent a sale being effected;
(d)ensuring that each property including the grounds are in a neat and tidy condition at the time of inspection by the agent and prospective purchasers; and
(e)signing all documents requested by the agents in relation to the listing for sale of each home except contracts or agreements for sale which have not been authorised by the parties' solicitors.
(iv)the parties shall each execute contracts for sale in the forms prepared by the solicitors having the conduct of the sales at a price agreed upon by the parties or, in the absence of any agreement, at or above the prices nominated by the President of the NSW Division of the Australian Property Institute;
(v)the parties shall do all things and sign all documents necessary to instruct a solicitor or licensed conveyancer within seven (7) days of the date of these orders to have the primary conduct of the sales on behalf of both parties and failing agreements such solicitor or conveyancer as nominated by the President of the NSW Division of the Australian Property Institute and any costs properly paid to the solicitors will form part of the legal costs of sales and be deducted from the proceeds of sale;
(vi)neither party may confer on any agent without the consent of the other party any right, any sole or exclusive agency in respect of the properties or to any commission; and
(vii)if the agent shall certify in writing to the parties' solicitors that it is reasonably necessary for the work specified in a Notice of Repairs to be carried out to the properties so as to assist in effecting a sale and provided the cost of any such work is less than $500.00 either party may cause such work to be carried out and the costs shall be recoverable by that party from the proceeds of sale.
Notably the Final Orders provided no timeframe for the sale of the Suburb S property.
Order 7 made provision for the distribution of the proceeds of sale of both the Suburb S Property and the Suburb F Property by providing:
(7)That the proceeds of the sale of the properties referred to in Order 5 and Order 6 is to be dispersed as follows:
(i) in payment of the usual sale costs;
(ii)in discharge of any mortgages or other encumbrances over the properties;
(iii)in payment of any capital gains tax arising out of the sale of the properties and to enable this to be paid a sum is to be set aside and retained by the wife then paid when the capital gains tax is due and for that purpose the sum to be retained is to be calculated by the wife's accountants;
(iv)the balance divided between the parties so that taking into account the property retained by the parties there be a distribution of the net total assets of 45 percent to the husband and 55 per cent to the wife.
(v)prior to payment to him of the husband’s share of the proceeds of sale pursuant to Order 7(iv) there is to be deducted from that share and paid to the wife $7 850 being half the cost of the valuations obtained by the wife for use in this case.
Is the implementation of Order 5 impracticable?
Order 5 required the parties to “take all necessary steps” for the sale of the Suburb S Property and the Suburb F Property.
The Suburb F Property was sold and the proceeds of sale were divided partly in accordance with Order 7. The balance was divided in the proportion of 55 per cent to Ms Hsu and 45 per cent to Mr Lau, but that distribution did not consider the “property retained by the parties.” Presumably, it was the intention of the parties that this final adjustment would be made upon the sale of the Suburb S Property.
Much of the evidence focused on the conduct of both parties in the implementation of the Final Orders and this is analysed later. It should be observed however that Ms Hsu, from as early as 2013, began requesting Mr Lau’s consent to transferring his interest in the Suburb S Property to her instead of it being sold. She has not wavered from this position since. Ms Hsu in her s 90SN Application wishes to now retain the Suburb S Property, but regardless of what she wishes to do, I need to consider whether the sale of the Suburb S Property in accordance with the Final Orders is impracticable or not. The controversy here really arises from the calculation of a final adjustment, not the capacity of the parties to place the Suburb S Property on the market for sale.
Therefore, I find that it is not impracticable to implement Order 5.
Is the implementation of Order 6 impracticable?
Order 6 is a mechanical provision. The Order for the sale of the Suburb S Property was not timebound and the only requirement regarding time was for the parties to “list the properties for sale by public auction at the earliest possible date”.
Is the implementation of Order 7 impracticable?
When the Final Orders were made, the balance sheet adopted by the trial Judge was:
BALANCE SHEET Assets Joint Husband Wife D Street, Suburb S 1,950,000 E Street, Suburb F 900,000 Motor Vehicle 1 7,000 The Suburb B Property 83,000 The Suburb C Property 400,000 Total 3,333,000 7,000 Add Back Joint Husband Wife Suburb K 35,000 35,000 Total 3,333,000 42,000 35,000 Assets Total assets $3,410,000 Liabilities Joint Husband Wife D Street, Suburb S 876,000 E Street, Suburb F 500,000 Husband’s family 128,000 Liabilities 1,376,000 128,000 Total Liabilities $1,504,000
Husband’s superannuation 47,050 Wife’s superannuation 23,270 Total superannuation $70,320 Total Assets $3,480,320 Less Total Liabilities $1,504,000 Net Assets $1,976,320
The controversy around the impracticability of implementing the Final Orders arose from the words “taking into account the property retained by the parties”.
Since the making of the Final Orders, the Suburb F Property has been sold and the net proceeds were divided with Mr Lau receiving $133,927.01 and Ms Hsu receiving $163,688.58 plus a reimbursement for Mr Lau’s share of valuation costs in sum of $7,850 (in accordance with Order (7)(v) of the Final Orders). These funds have been retained by the parties and can be included in a balance sheet accordingly.
Ms Hsu’s business G Pty Ltd was to be wound up. During cross-examination, Ms Hsu gave evidence that in 2022 she became aware that it was deregistered and there was no money to distribute in accordance with the Final Orders. I accept her evidence about this. There is no value to be attributed to it on the balance sheet.
The parties are in dispute as to how the properties in Country AA should be approached. The trial Judge determined that:
(a)“[Suburb C Property] was acquired with funds of the parties and is owned by them notwithstanding it is registered in the name of the husband’s parents”. Accordingly, it was included as an asset of the parties in the balance sheet and a value of $400,000 was attributed to it.
(b)It was an agreed fact that the Suburb B Property “was acquired from funds of the parties and that it was owned by them notwithstanding it was held in the name of the wife’s sister”. Accordingly, it was included in the balance sheet with a value of $83,000 attributed to it.
The result of those assets disposed of or dispersed in accordance with the Final Orders can be reflected in the following table:
Assets Mr Lau Ms Hsu Sale proceeds of the Suburb F Property 133,927 163,688 Motor Vehicle 1 7,000 The Suburb B Property 83,000 The Suburb C Property 400,000 Total Assets 540,927 246,688 Add Backs Mr Lau Ms Hsu Suburb K 35,000 35,000 Total 575,927 281,688 Liabilities Mr Lau Ms Hsu Mr Lau’s family 128,000 Total Liabilities 128,000 Total Net Assets Retained $447,927 $281,688
The property division structure was based on the value of the asset pool in 2013, and there has been a significant change in value for the Suburb S Property. Whilst I do not accept it as the current value, I note that the parties agreed that the Suburb S Property had increased in value substantially with Ms Hsu asserting that it is valued at $3,500,000 relying upon the 2022 valuation report prepared by Mr CC.
Conclusions on impracticality
If the Suburb S Property was placed on the market for sale and sold, Ms Hsu would, in accordance with the Final Orders, receive an amount equal to a 55 per cent division of the overall asset pool, considering the values of assets at the time they were distributed to the parties. Whilst the outcome produced is not necessarily what was intended, the trial Judge could not have known it would take over 10 years to sell the property. In determining the threshold issue, the Court has no knowledge of what has happened with the assets already distributed to the parties nor whether there have been changes to the respective financial positions of the parties, but this enquiry is unnecessary for the purpose of determining whether the Final Orders should be set aside under s 90SN(1)(b).
Whilst the conduct of the parties might result in Ms Hsu receiving less than she anticipated, it does not follow that the Final Orders were therefore impracticable, or unable to be put into effect. The parties have been in communication about the implementation of the Final Orders for over 10 years. Their own correspondence highlights that they were aware of the consequences of delaying a final settlement. And despite those consequences, there were lengthy periods of time where they each took no steps to resolve the impasse. The effect of this delay was reasonably contemplated by both parties, as evidenced by the communication between them. I am not satisfied that their delay renders the implementation of the Final Orders impracticable even if it produces a different outcome to that which was intended.
I have concluded that a finding that it is impracticable to carry out the Final Orders can not be made.
The next consideration then, is whether Ms Hsu or Mr Lau defaulted in carrying out an obligation imposed by the Final Orders.
DID A PARTY DEFAULT IN CARRYING OUT AN OBLIGATION IMPOSED ON BY THE FINAL ORDERS? (S 90SN(1)(C))
In his Case Outline, Mr Lau contended that he has not defaulted in carrying out an obligation imposed on him by the Final Orders and further contended that no circumstance has arisen by any alleged default to make it just and equitable to vary the Final Orders or to set any order aside and make another order in substitution.
Relevant Legal Principles
The term “default” is not defined in the Act and so could be given its natural and ordinary or legal meaning (Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389). An ordinary meaning of default is a “failure to perform an act or obligation legally required” (Macquarie Dictionary, Pan Macmillan Australia, 2024). In ReYoung and Harston’s Contract (1885) 31 Ch D 168 (“Re Young and Harston’s Contract”), at 174 Bowen LJ held that the term means “nothing more, nothing less, than not doing what is reasonable under the circumstances … having regard to the relations which [a person occupied] towards the other persons interested in the transaction”.
Upon that ordinary meaning of the term and the principles stated in Re Young and Harston’s Contract, I consider that the meaning of the term “default” is to be construed in the context of the Final Orders as a whole and by reference, in particular, to both Orders 5 and 6 of the Final Orders.
Did the parties take all necessary steps to sell the Suburb S Property?
The circumstances leading to the sale of the Suburb S Property have been recited.
From the outset, I make the observation that since separation, Ms Hsu has sought to retain the Suburb S Property. The Final Orders made no provision for this because the trial Judge had found that Ms Hsu did not have the capacity to do so. At that time, the trial Judge observed at [107] that:
No evidence was given by the wife as to her ability to refinance using either or both of the [Suburb F] and [Suburb S] properties to obtain funds in that amount to pay to the husband. The fact that the [Suburb S] mortgage is three months in arrears, that the car lease is about to fall into arrears and that she has just commenced an entirely new business venture lead to the inference that she does not. In my view, it is therefore necessary that both the [Suburb S] property and the [Suburb F] property be sold and the proceeds divided in a manner to give effect to the appropriate division I have determined.
Only three months later, Ms Hsu, in correspondence dated 13 August 2013, again proposed that the parties reach agreement as to its value, whereupon Mr Lau would transfer his interest in the Suburb S Property to Ms Hsu.
Whilst Ms Hsu did arrange for the Suburb S Property to be listed for auction, when it was not sold at the 2013 auction, she took no further steps to sell the Suburb S Property again.
I have found that Mr Lau knew that the Suburb S Property was listed for sale in 2013 and did not participate in the process because he believed that Ms Hsu was not acting in compliance with the Final Orders. It is possible that he felt some distrust for the process that she had embarked upon given that she had proposed to him, only months earlier, that she retain the Suburb S Property.
As to the 2013 auction attempt, I have concluded that neither party took the necessary steps to sell the Suburb S Property. Mr Lau did however continue to agitate for the sale via correspondence from his legal representative throughout 2014. The parties at that time could not reach agreement about the appointment of a real estate agent nor conveyancers to act on the sale.
As mentioned, Ms Hsu sought the 2015 valuation of the Suburb S Property which was undertaken by Mr BB. While it cannot be said that Mr Lau engaged promptly in this valuation process, it was completed in late 2015.
The instructions provided that the Suburb S Property be valued at the date of the Final Orders, being 2 May 2013. This does not appear to be the intent of Order 6(i) of the Final Orders which made provision for the appointment of a valuer if it was necessary to resolve any issues associated with listing the Suburb S Property for sale. It is not clear why it happened; either Ms Hsu intended to use the 2015 valuation as a negotiation tool to support her proposal to buy out Mr Lau’s interest in the Suburb S Property, or she was planning to use the valuation to set a reserve price with a view to her bidding at the auction. I prefer the earlier because had it been the later, she would have taken steps to have the property placed on the market for sale. She appears to have taken no such steps since 2013.
In 2016, Ms Hsu again proposed that the Suburb S Property be transferred to her. Indeed, this request was made in several letters sent by her legal representative. However, the parties could not agree about the calculation of a distribution figure in accordance with the Final Orders. Again, the argument as to whether the value should be taken at the date of the Final Orders or otherwise loomed large. It appears that Ms Hsu’s position was that if the Suburb S Property was to be valued at the current market rate, then the properties in Country AA should be too.
On 3 May 2016, Ms Hsu made clear her position that she did not intend to have the Suburb S Property returned to auction and the following was said in her correspondence:
Additionally, you state that the [Suburb S] Property should be returned back to auction as per Orders 6 however, my client had already fulfilled her obligation to this order considering that the [Suburb S] Property had previously been auctioned in late 2013. It was due to your client's refusal to cooperate and delay that the auction was not successful and ultimately passed in. It is absurd that your client should request that the property be returned to auction again considering the enormous inconvenience including but not limited to the wasted time, costs and legal fees on my client when it was your client's lack of cooperation that resulted in the circumstances we have now.
The offers made on behalf of Ms Hsu were rejected and on 5 July 2016 Mr Lau’s legal representative confirmed that:
Our client reiterates that he would like the [Suburb S] property sold, in accordance with the Orders of May 2013, and for the distribution of net sale proceeds to be calculated in accordance with the actual net sale proceeds, rather than a valuation figure as at May 2013.
Ms Hsu’s intentions were tested during cross-examination. Ms Hsu confirmed that she was opposed to returning the Suburb S Property to auction after 2013:
But after the auction in 2013 and up until 2016 I got enough money to pay that total amount – balance. Okay. That is why I believe that doing another auction would be a waste of time and my energy and legal cost. Okay. So at – at the same time I don’t think the other party would have a genuine intent to carry it out as he had never had genuine intent to carry out anything.
(Transcript 27 April 2023, p.127 lines 20 – 25)
Clearly an impasse had been reached by mid-2016. Neither party was able to adequately explain why there was a complete lack of activity on either of their parts from mid-2016 until 2020, when Mr Lau again sought to have the Suburb S Property sold (which Ms Hsu did not agree to). On 22 January 2020, his legal representative wrote:
•[Mr Lau] now wished to finalise all financial matter[s] as between the parties and demand that the parties abide by the Orders.
•[Mr Lau] now invites your client to comply the Orders. Naturally the first point of call would be the mutual agreement as to the identity of a selling agent and an agreement as to the [reserve] price for the sale of the [Suburb S] property. Failing agreement, our client will, invoke the mechanism prescribed in Order 6(ii) of the Orders.
That letter reiterated Mr Lau’s position that the net proceeds would be distributed in accordance with Order 7 of the Final Orders. However, Mr Lau took no formal steps to resolve the impasse until he filed the s 106A Application.
Some months later, Ms Hsu filed the Initiating Application which was countered with Mr Lau’s Enforcement Application.
Did a party default in carrying out an obligation imposed on by the Final Orders?
Whilst compliance with the Final Orders was not timebound, the parties were required to list the properties by public auction at the “earliest possible date”.
The parties were each in default of the Final Orders when they determined that they would delay the sale of the Suburb S Property until after Ms Z had completed her exams. But the agreed delay of the sale until the end of that year was reasonable under the circumstances and it did not impact upon the capacity of the parties to implement the Final Orders.
Mr Lau argued that he did not act in default of the Final Orders. While he arguably was not obliged to cooperate with the 2013 auction because it was done contrary to the Final Orders, he did not “at the earliest possible date” take any significant steps to resolve the impasse either. I find that he acted in default of the Final Orders for the following reasons:
(a)Order 5 required “the parties to take all necessary steps to sell the properties”. Inaction, even in the event of disagreement about the process, cannot be seen as taking the “necessary steps”.
(b)Order 6 required “the parties” to list the Suburb S Property “at the earliest possible date”. He did not facilitate this.
(c)Whilst Mr Lau from time to time over the years caused letters to be sent to Ms Hsu requesting action, and more bizarrely, attempted to resume occupation of the Suburb S Property with his new wife in 2020, these were not the “necessary steps” required. He did not take any formal steps available to him until in 2021 when he filed the s 106A Application to allow the sale of the Suburb S Property pursuant to the Final Orders. The fact that the s 106A Application was entertained and acted upon by the Registrar solidifies the conclusion that he delayed taking the “necessary steps” for a significant period of time.
The Act provides remedies for non-compliance with orders. Mr Lau’s failure to avail himself of these remedies for nine years places him in default of the Final Orders.
Whilst Ms Hsu argued that she was not in default of the Final Orders, her actions of listing the Suburb S Property for sale were contrary to Order 6 and placed her in default of the Final Orders. Clearly, there is a lack of trust and acrimony between the parties. The Final Orders required the joint appointment of agents and solicitors, and agreement being reached on listing prices (and default clauses when agreement cannot be reached) for this reason. Mr Lau’s failure to attend the 2013 auction in circumstances where his consent was not obtained are perhaps not surprising.
Had Ms Hsu then engaged with Mr Lau about listing the Suburb S Property in accordance with the terms of Order 6, the impasse may have been overcome and the property auctioned successfully. There was no evidence before me to satisfy me that Ms Hsu has taken steps since 2016 to implement the Final Orders because by then, she had formed the view that she wished to retain the Suburb S Property and had the capacity to do so. But her contention that she had the capacity to retain the Suburb S Property was based upon Mr Lau agreeing to accept the value as at the time of the 2013 final hearing.
I have concluded on the evidence before me that Ms Hsu did not list the Suburb S Property for sale in accordance with the Final Orders. Then, from 2016 onwards, she took no active steps to comply with the Final Orders. Indeed, it took her six years after this to file an Initiating Application to set aside and vary the Final Orders and to seek alternative relief. Accordingly, I find that she also acted in default of the Final Orders.
Were the relevant circumstances that have arisen the result of the default?
Having determined that there has been a default, s 90SN(1)(c) of the Act applies and requires that “in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order”.
The Act requires there to be a link between the default and the circumstances which have arisen from it.
In Blackwell & Scott (2017) FLC 93-775 (“Blackwell & Scott”), the Court considered the construction of s 90SN(1)(c). There, Aldridge J at [8] observed that consideration of the words “‘the circumstances that have arisen as a result of that default’, is a question of fact to be resolved as a matter of common sense”. It is therefore necessary here to look at the circumstances that have given rise to the default practically, to see if they have arisen because of the default of either party.
The circumstances that arose as a result of their default were:
(a)The Suburb F Property was sold and the proceeds of sale were distributed to the parties.
(b)The parties had the benefit of all other assets that were distributed to them.
(c)Ms Hsu continued to live in the Suburb S Property with the parties two children rather than paying for alternate accommodation as Mr Lau did.
(d)Ms Hsu has continued to pay the mortgage including principal and interest on the Suburb S Property.
(e)Ms Hsu paid outgoings on the Suburb S Property and presumably spent some money on its maintenance.
(f)The Suburb S Property has increased in value substantially. Ms Hsu asserted that it was valued at $3,500,000 in 2022, relying upon the 2022 valuation report. She adopted a value of $4,000,000 in her Financial Statement.
All of these circumstances can be comfortably described as circumstances arising as a result of the default, in that none of those circumstances would have happened had it not been for the default.
Is it just and equitable that the Final Orders be varied?
Section 90SN(1)(c) of the Act permits the Court to grant relief where certain conditions are satisfied. Having found that the parties are in default of the Final Orders, I need to now consider if, in the circumstances, it would be just and equitable to vary the Final Orders.
Mr Lau asked the Court to enforce the Final Orders. Ms Hsu argued that enforcement is an inadequate remedy to achieve justice and equity.
The question remains whether the default of the parties, and especially Ms Hsu, results in circumstances that now make it just and equitable to exercise my discretion and vary or set aside the Final Orders. Ms Hsu, as the applicant, bears the onus of establishing that it would be just and equitable to do so.
Most cases that have considered the application of s 90SN(1)(c) appear to have much simpler factual matrixes, such as where the default has arisen from the conduct of one party or an unforeseen event has taken place.
In Monticone & Monticone (1990) FLC 92-114 (“Monticone”) the husband was ordered to pay to the wife $325,000 and upon that payment, the wife was to transfer title of the former matrimonial home to the husband. The default provisions in the orders provided that if the husband failed to pay, the matrimonial home would be sold and the proceeds divided equally between the parties. The husband was in default as he had not paid the full amount and the wife sought the sale of the home. She did so on the basis of her assertion that the value of the property had increased in the intervening period. At 77,756, the Full Court found that:
·The husband had “paid over two-thirds of the original sum within the relevant period,” and the delayed payment of the outstanding balance arose “through no fault of his own and … was available at the time when the wife commenced proceedings for enforcement”.
·The husband had also “paid interest on the amount outstanding”.
·As the wife was unable to “point to a particular hardship on her part … which could not be compensated for by the payment of interest”, her Application for Enforcement was refused.
Monticone needs to be differentiated from the facts here. In Monticone, while the wife was seeking the sale of the property arguably because property prices had increased, the husband was able to pay the money owing under the orders plus interest and had taken steps to do so. Furthermore, the proceedings in Monticone took place within 12 months of the date by which the settlement was to have been effected.
Analogous with the husband's actions in Monticone, Ms Hsu wrote to Mr Lau on 16 March 2023 advising that she had funds held on trust to effect a settlement of the monies she calculated were owed to Mr Lau, plus interest. Her letter was written some ten years after the Final Orders, a year after the proceedings had commenced and two days into the hearing. The property division structure she adopted was based on the value of the asset pool in 2013, as set out in the 2013 Judgment. But she was not seeking to comply with the Final Orders. Instead, she sought to vary them to allow her to retain the Suburb S Property.
In Blackwell & Scott, the parties obtained consent orders for a property settlement pursuant to s 90SM of the Act. There, the orders were designed to achieve an equal division of the parties’ net assets. A cash payout figure of $130,000 was to be paid to the wife in 90 days to effect an equal division. This was based on the value of a property at the time the figure was calculated. The husband did not comply with the order for 13 months. The wife argued that when she finally received the payment of $130,000, even with the subsequent payment of interest, she was not then receiving an equal division by reference to the worth of the value of the property at the time of receipt. At [61] it was held that:
The relevant circumstances arising as a result of the husband’s default included that payment of $130,000 even with interest, could no longer achieve the wife receiving anything approximating an equal entitlement at the time the payment was made.
(Emphasis altered)
Here, the Final Orders were not timebound in the same manner. This has led to Ms Hsu consistently agitating in negotiations with Mr Lau, and in these proceedings, for the properties retained by the parties to also be valued, so that a 45/55 per cent division can be achieved. But the real distinction between Blackwell & Scott and this case arises from the circumstances that gave rise to the default. In Blackwell & Scott, it arose from the husband’s default which was found to result in a disadvantage to the wife who would not receive an amount equivalent to the equal entitlement ordered.
In this case, the relevant circumstances when the Final Orders were made, were that the Final Orders, once implemented, were intended and designed to effect a division of property as to 45/55 per cent. The 2013 Judgment was predicated upon the sale of both the Suburb F Property and the Suburb S Property which the trial Judge observed at [107] would allow the proceeds to be divided “in a manner to give effect to the appropriate division I have determined.”
Whilst the Final Orders gave an estimated figure based on the balance sheet, that figure was not one that bound the parties. It can be accepted that there was always a prospect of the sum of money received on the sale of the Suburb F Property and the Suburb S Property to vary from the figures allocated in the balance sheet. Therefore, the outcome was dependent upon the prices realised upon the sale of assets regardless of when those sales took place.
Notwithstanding the finding I have made that both parties were in default of the Final Orders, a determination needs to be made on what should happen with any proceeds of sale of the Suburb S Property.
On Mr Lau’s proposal:
(a)The Suburb S Property would be sold.
(b)He would retain a value of $447,927 for the assets already dispersed (per paragraph 76 of this Judgment).
(c)He would retain his superannuation entitlement.
(d)An adjustment would be made such that Mr Lau would receive 45 per cent of the total asset pool.
Notionally, if the Suburb S Property was sold for $4,000,000 and the mortgage of $671,298 was paid out, the net proceeds would be $3,328,702.
The total pool (ignoring superannuation interests) would have a value of $4,058,317, and 45 per cent would result in Mr Lau receiving $1,826,242.65 and Ms Hsu retaining $2,232,074.35. Deducting from Mr Lau’s share the value attributed to the assets he retained ($447,927), he would be entitled to a cash payment of $1,378,315.65. Ms Hsu would therefore be left with $2,680,001.35 of the proceeds of sale.
Ms Hsu argued that this is neither a just or equitable outcome because it does not have regard for the contributions that she has made towards the Suburb S Property since the Final Orders. She deposed that:
(a)Mr Lau has made no contribution to the Suburb S Property since 2009.
(b)Since May 2013, she has been solely responsible for paying approximately $495,000 in interest payments.
(c)She has paid off approximately $186,000 in principal repayments since May 2013 which she argued had directly resulted in the liability of the mortgage of the Suburb S Property decreasing from $875,000 to the current mortgage liability of approximately $690,000.
(d)In addition, she has paid all outgoings associated with the Suburb S Property including council fees, utilities and the costs of improvements to the property and its fixtures.
(e)She has been the sole contributor to the Suburb S Property since the Final Orders, and any increase in its value is a direct result of her financial contributions towards it.
Mr Lau disagreed. He said that the delay in settlement has caused him great difficulty including that:
(a)He was a joint borrower under the loan and the financial hardship suffered by Ms Hsu has had consequences on his credit rating and ability to borrow funds.
(b)Without the benefit of the proceeds of sale of the Suburb S Property, he has been unable to buy a property or have the benefit of investing the proceeds.
(c)As Suburb S remains in his name, but he was not living there, he was unable to receive Centrelink benefits. This, he says, caused him hardship during COVID.
Conclusions on default
I have difficulty accepting Ms Hsu’s argument that Mr Lau is not entitled to the benefit of the increase in value of the Suburb S Property. He has endured the financial risk as a joint mortgagee. He has paid for rental accommodation while Ms Hsu has had the benefit of occupancy. He has been unable to move on with his life as his funds have been tied up with a finalisation of the settlement. But if I were to enforce the Final Orders and decline Ms Hsu’s s 90SN Application, should he therefore receive the benefit of around $680,000 spent on the Suburb S Property, including $186,000 in principal repayments made by Ms Hsu since the Final Orders? I am left unconvinced that in the circumstances that have arisen as a result of that default, it would be a just and equitable outcome for Ms Hsu.
My resistance to reaching this conclusion arises from my observations of Ms Hsu’s conduct since 2013. Whilst she maintains the position that she complied with the Final Orders by putting the Suburb S Property to auction, I am not satisfied that she ever complied with the letter of the Final Orders. As was observed in Rohde in exercising the discretion to re-open the proceedings, it is in the public interest that Final Orders finalise litigation between parties. Further, that parties who have been the contributor to their own financial troubles should not be allowed to litigate to get themselves out of their troubles. That sadly, is the situation we seem to be left with.
In Cawthorn, the Full Court referred to the concept of “self-induced frustration” and said at 85,061:
However in our view a party cannot successfully seek an order pursuant to s 79A(1) as a result of that party's own default unless such default was due to circumstances quite beyond that party's control. This rests firstly upon the well established principle of law that no-one should profit by their own wrong doing. This principle clearly embraces the obligation to carry out the provisions of a court order. Secondly, it would normally not be just and equitable to grant relief under s 79A(1) in those circumstances. It is in this context that we briefly revisit the doctrine of frustration and observe that a party cannot rely upon what has been termed ‘self-induced frustration’.
(Citations omitted)
I have difficulty finding that the default was beyond the control of each of these parties. But as I have found both parties to be in default, I am concerned that to enforce the Final Orders, would see Mr Lau profit from his wrongdoing.
This means we are left with a mess created by the parties that needs to be fixed.
CONCLUSIONS
Having made these findings, the Court must now proceed to determine whether it should exercise its discretion to either vary the Final Orders or set the Final Orders aside and, if it considers appropriate, make another order under s 90SM in substitution for the order so set aside.
I make the following observations in relation to that process:
(a)Courts have now devoted 10 days to hearing evidence from these parties, over a period of ten years, because they are incapable of finding any middle ground.
(b)The legal costs that have been, and continue to be expended by the parties, are completely disproportionate to the issues in dispute.
(c)Ms Hsu will no doubt agitate for a revaluing of the properties in Country AA. She does so in the hope that they will be brought back into the property pool. The trial Judge found that the two properties in Country AA were acquired with the funds of the parties and were essentially owned by them and therefore included them as assets of the parties. But the same difficulty that has confronted the Suburb S Property again confronts the parties with the properties in Country AA. In the intervening period there will have been different occupancy arrangements, loans may be arisen, improvements made. The Court will not re-open any of the findings already made.
(d)The Court may order the sale of the Suburb S Property to allow the value to be realised.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 23 December 2024
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