Jong and Yeng and Ors (No 3) - [2012] FamCA 686

FAMILY COURT OF AUSTRALIA

JONG & YENG AND ORS (NO. 3)

[2012] FamCA 686

FAMILY LAW – PRACTICE AND PROCEDURE – Amendment by way of addendum to Reasons for Judgment – to correct formal error

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:

17 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

7 August 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 paragraph 3 of the orders made on 26 July 2012 be deleted and be replaced by the following:
3.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) 43.16 per cent to the wife; and
ii) 56.84 per cent to the husband.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jong & Yeng has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3007 of 2008

Ms Jong

Applicant

And

Mr Yeng

Respondent

And

W Holdings Pty Ltd

2^nd Respondent

And

K Enterprises Pty Ltd

3^rd Respondent

And

Mr H Jong

4^th Respondent

And

B Pty Ltd

5^th Respondent

ADDENDUM TO
REASONS FOR JUDGMENT

DELIVERED ON 26 JULY 2012

After publishing reasons for judgment in the substantive proceedings on 26 July 2012 but before the orders commenced operation I noticed a formal error in the orders.
This error was at paragraph 3 of the orders which in its erroneous form provided as follows:
3.That the proceeds of sale of the above property be paid as follows:
(d)To discharge the mortgage thereon;
(e)To pay the wife’s credit card debt in the amount of $28 000; and
(f)To pay the balance as follows:
i) 54.14 per cent to the wife; and
ii) 45.86 per cent to the husband
The error in this is that in calculating the percentages in which the balance of the proceeds of sale was to be paid to the parties, I failed to take account of the fact that the wife’s credit card liability of $28 000 would be paid from the proceeds of sale, rather than be borne by her personally. Accordingly, to reflect my substantive determination, the correct percentages in paragraph 3 of the orders should be 43.16 to the wife…

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 686
Decision Date

CaseChat Overview and Summary

This matter came before the Family Court of Australia, presided over by Johnston J, concerning a dispute between Ms Jong (the applicant) and Mr Yeng (the respondent), along with several corporate respondents (W Holdings Pty Ltd, K Enterprises Pty Ltd, B Pty Ltd) and Mr H Jong. The proceedings involved an application to amend orders previously made on 26 July 2012, following the delivery of substantive reasons for judgment.

The primary legal issue before the court was whether to correct a formal error in the orders made regarding the distribution of proceeds from the sale of a property. Specifically, the court was required to determine the correct percentages by which the net proceeds of sale should be divided between the husband and wife, taking into account a credit card debt of the wife that was to be discharged from those proceeds.

Johnston J reasoned that a formal error had occurred in the original orders where the percentages allocated to the parties did not accurately reflect the substantive determination that the wife's credit card liability of $28,000 would be paid from the sale proceeds. This oversight meant the wife would effectively bear the debt personally, contrary to the court's intention. To rectify this, the court applied the principle that orders should accurately reflect the court's findings and intentions. The calculation of the wife's equity in the property was adjusted to account for the discharge of her credit card debt, leading to revised percentages of 43.16 per cent for the wife and 56.84 per cent for the husband.

The court ordered that paragraph 3 of the orders made on 26 July 2012 be deleted and replaced with new orders specifying the distribution of sale proceeds. These revised orders directed that after discharging the mortgage, the wife's credit card debt of $28,000 would be paid, and the remaining balance would be divided with 43.16 per cent allocated to the wife and 56.84 per cent to the husband. This amendment was made after the court raised the issue with the parties' legal representatives and received no submissions to the contrary.

Orders