HU & QIAN (No.2)

Case [2015] FCCA 2265


FEDERAL CIRCUIT COURT OF AUSTRALIA

HU & QIAN (No.2) [2015] FCCA 2265
Catchwords:
FAMILY LAW − Whether husband has failed to disclose assets.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79A, 106A

Hu & Qian [2015] FCCA 412
Chang and Su [2002] FamCA 156
Weir v Weir (1993) FLC 92-338; 16 Fam LR 154
Applicant: MS HU
Respondent: MS QIAN
File Number: DGC 1533 of 2013
Judgment of: Judge Phipps
Hearing dates: 30 & 31 March & 1 April 2015
Date of Last Submission: 1 April 2015
Delivered at: Dandenong
Delivered on: 21 August 2015

REPRESENTATION

Counsel for the Applicant: Ms Conlan
Solicitors for the Applicant: Belleli King
Counsel for the Respondent: Ms Lowy
Solicitors for the Respondent: Anna Chen & Associates

ORDERS

  1. That the husband sign all documents and do all things necessary to transfer to the wife all his right title and interest in the property situate at and known as Property O.

  2. That the whole of the remaining net proceeds of sale of the (business omitted) at Property B be paid to the wife.

  3. That the parties sign all documents and do all things necessary to sell the property at (omitted) China and upon sale the proceeds be divided as follows:

    (a)firstly in payment of the costs and expenses of the sale;

    (b)secondly in discharge of any encumbrances over the property;

    (c)by paying the balance 65% to the wife and 35% to the husband.

  4. That upon the husband paying the wife the sums of $5,802, $2,901 and $5,802 a total of $14,505 being the total of the costs ordered to be paid by him on 16 March 2015, the wife do all things and sign all documents necessary to transfer any interest she has in (business omitted) Pty Ltd to the husband and resign any office she may hold in (business omitted) Pty Ltd.

  5. That unless specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

    (a)each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders (the furniture, personal possessions and the chattels in Property O being deemed to be in the possession of the wife);

    (b)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

  6. That in the event that the husband does not sign or execute any document which this order requires him to sign or execute within seven days of delivery of that document to him then a registrar of the Federal Circuit Court of Australia is appointed pursuant to s.106A of the Family Law Act 1975 (Cth) to execute any such document in the name of the husband and do all things necessary to give validity to the operation of such document.

  7. Otherwise all extant applications are dismissed.

IT IS NOTED that publication…

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AGLC
Hu and Qian (No.2) [2015] FCCA 2265
Case
[2015] FCCA 2265
Decision Date

CaseChat Overview and Summary

In the matter of HU & QIAN (No.2), Judge Phipps of the Federal Circuit Court of Australia was required to make final orders concerning the division of property and liabilities between the husband and wife. The dispute involved various assets, including real estate at Property O and Property B, a business, and property located in China, as well as specific monetary sums and company interests.

The court was tasked with determining how the parties' various assets and liabilities should be divided. This included the allocation of specific properties, the distribution of business sale proceeds, the division of proceeds from the sale of overseas property, and the transfer of interests in a company. The court also needed to address the payment of costs previously ordered against the husband and to establish a mechanism for the enforcement of its orders.

The court's reasoning, as reflected in the orders, involved a detailed distribution of the matrimonial assets. The wife was to receive the entirety of her interest in Property O, the whole of the remaining net proceeds from the sale of the business at Property B, and a 65% share of the net proceeds from the sale of the China property, with the husband receiving the remaining 35%. The husband was ordered to pay the wife a total of $14,505 in costs, after which the wife was to transfer her interest in a company to him. Other assets and liabilities were to be retained by each party individually. To ensure compliance, the court stipulated that if the husband failed to execute necessary documents, a registrar of the Federal Circuit Court was empowered to do so on his behalf.

Orders

Orders of the court

1.

That the husband sign all documents and do all things necessary to transfer to the wife all his right title and interest in the property situate at and known as Property O.

2.

That the whole of the remaining net proceeds of sale of the (business omitted) at Property B be paid to the wife.

3.

That the parties sign all documents and do all things necessary to sell the property at (omitted) China and upon sale the proceeds be divided as follows:

(a) firstly in payment of the costs and expenses of the sale;

(b) secondly in discharge of any encumbrances over the property;

(c) by paying the balance 65% to the wife and 35% to the husband.

4.

That upon the husband paying the wife the sums of $5,802, $2,901 and $5,802 a total of $14,505 being the total of the costs ordered to be paid by him on 16 March 2015, the wife do all things and sign all documents necessary to transfer any interest she has in (business omitted) Pty Ltd to the husband and resign any office she may hold in (business omitted) Pty Ltd.

5.

That unless specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders (the furniture, personal possessions and the chattels in Property O being deemed to be in the possession of the wife);

(b) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

6.

That in the event that the husband does not sign or execute any document which this order requires him to sign or execute within seven days of delivery of that document to him then a registrar of the Federal Circuit Court of Australia is appointed pursuant to s.106A of the Family Law Act 1975 (Cth) to execute any such document in the name of the husband and do all things necessary to give validity to the operation of such document.

7.

Otherwise all extant applications are dismissed.

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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