Jong and Yeng and Ors (No 2) - [2012] FamCA 585

FAMILY COURT OF AUSTRALIA

JONG & YENG AND ORS (NO. 2)

[2012] FamCA 585

FAMILY LAW – PROPERTY –Settlement in relation to marriage – Contributions – Where the husband and wife have both made direct and indirect financial contributions – Where overall contributions are assessed as equal – Where the financial affairs of the husband and wife and the wife’s parents have been enmeshed - Where it is inappropriate to make an adjustment in consideration of the relevant matters under section 75(2) – Just and equitable – Equal distribution of property.

Family Law Act 1975 (Cth) – s 79, s 75(2), s 81
Corporations Act 2001 (Cth) – s 601AH

Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
Lee Steere and Lee Steere (1985) FLC 91-626

APPLICANT:

Ms Jong

RESPONDENT:

Mr Yeng

2^NDRESPONDENT:

W Holdings Pty Ltd

3^RD RESPONDENT:

K Enterprises Pty Ltd

4^TH RESPONDENT:

Mr H Jong

5^TH RESPONDENT:

B Pty Ltd

FILE NUMBER:

SYC

3007

2008

DATE DELIVERED:

26 July 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

15, 16, 17 and 20 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bell

SOLICITOR FOR THE APPLICANT:

James Lee Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Cohen

SOLICITOR FOR THE RESPONDENT:

Cambridge Lawyers

COUNSEL FOR THE 2^ND, 3^RD, & 4^TH RESPONDENTS:

Mr Campton

SOLICITOR FOR THE 2^ND, 3^RD & 4^TH RESPONDENTS:

James Tung & Co

FOR THE 5^TH RESPONDENT:

No appearance

Orders

That not later than 21 September 2012 the wife shall pay to the husband the sum of $66 500 and do all things to discharge the mortgage on Property E1 New South Wales.
That in the event that the wife fails to comply with the above order she shall forthwith do all things and sign all documents necessary to sell the said property for the best price reasonably able to be obtained.
That the proceeds of sale of the above property be paid as follows:
(a)To discharge the mortgage thereon;
(b)To pay the wife’s credit card debt in the amount of $28 000; and
(c)To pay the balance as follows:
i) 54.14 percent to the wife; and
ii) 45.86 percent to the husband
That pursuant to s 79 of the Family Law Act 1975 each of the husband and the wife be declared the sole owner of all other property and superannuation in their possession and/or control respectively.
That the above orders not commence operation until 15 August 2012.
That the husband and the wife have leave to relist these proceedings before Johnston J at any time not later than 14 August 2012 for further submissions in relation only to the form of the orders.
That both parties have leave to relist these proceedings on 14 days notice in…

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.

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Details

Case: [2012] FamCA 585
Decision Date: 26 July 2012

CaseChat Overview and Summary

In *Jong and Yeng and Ors (No 2)*, Johnston J of the Family Court of Australia was required to make final property settlement orders between the husband and wife. The dispute concerned the division of various assets, including a property in New South Wales, credit card debt, and other property and superannuation interests.

The primary legal issue before the court was how to equitably distribute the parties' property and liabilities. This involved determining the appropriate allocation of a specific property, the discharge of a significant credit card debt, and the division of remaining assets and superannuation. The court also had to consider the timing and mechanism for the implementation of its orders.

Johnston J applied the principles of property adjustment under section 79 of the *Family Law Act 1975*. The court ordered that the wife pay the husband a sum of $66,500 and discharge the mortgage on a New South Wales property by a specified date. In the event of non-compliance, the wife was to sell the property, with the proceeds first used to discharge the mortgage, then to pay the wife's credit card debt of $28,000, and the balance to be divided 54.14% to the wife and 45.86% to the husband. The court further declared each party the sole owner of other property and superannuation in their possession. The orders were to commence operation from 15 August 2012, with provisions for relisting the proceedings for further submissions on the form of orders or for implementation.

Orders

Orders of the court

That not later than 21 September 2012 the wife shall pay to the husband the sum of $66 500 and do all things to discharge the mortgage on Property E1 New South Wales.

That in the event that the wife fails to comply with the above order she shall forthwith do all things and sign all documents necessary to sell the said property for the best price reasonably able to be obtained.

That the proceeds of sale of the above property be paid as follows:

(a) To discharge the mortgage thereon;

(b) To pay the wife’s credit card debt in the amount of $28 000; and

i) 54.14 percent to the wife; and

ii) 45.86 percent to the husband

That pursuant to s 79 of the Family Law Act 1975 each of the husband and the wife be declared the sole owner of all other property and superannuation in their possession and/or control respectively.

That the above orders not commence operation until 15 August 2012.

That the husband and the wife have leave to relist these proceedings before Johnston J at any time not later than 14 August 2012 for further submissions in relation only to the form of the orders.

That both parties have leave to relist these proceedings on 14 days notice in relation to the implementation of the orders.

That all exhibits be released.

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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