HU & QIAN (No.2) - [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

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.
That the whole of the remaining net proceeds of sale of the (business omitted) at Property B be paid to the wife.
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.
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.
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.
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.
Otherwise all extant applications are dismissed.

IT IS NOTED that publication…

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 HU & QIAN (No.2)

Details

AGLC: Hu and Qian (No.2) [2015] FCCA 2265
Case: [2015] FCCA 2265
Decision Date: 21 August 2015

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

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.

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

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;

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.

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.

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.

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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