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^ND RESPONDENT: 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 of 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

1. 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

1. 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. 

2. 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

3. 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 and 56.84 to the husband.

4. To correct this error in the reasons for judgment delivered on 26 July 2012, paragraphs 150, 152 and 153 should be replaced by the following:

   150.On the basis that the wife is to retain her half interest in the corporation the value of this to her would be $315 400.  She has other property in the form of the two motor vehicles which is another $30 000.  Accordingly, she will have property with a value of $345 400 ($315 400 + $30 000 = $345 400).  The wife also has a liability in the form of her credit card debt of $28 000.  But this would be part of the total indebtedness on [Property E1].  In order to achieve property with a value of $395 900 the wife would need an additional payment of $50 500 ($395 900 - $345 400 = $50 500).  Such a payment could only come from the sale of [Property E1], or the wife would retain such value in it if she was to pay the husband for his interest therein.

   …

   152.As indicated above [Property E1] has a value of $645 000.  But it also has a mortgage secured upon it of $500 000 and the wife’s credit card liability should be paid from it.  Accordingly the equity is $117 000 ($645 000 - $500 000 - $28 000 = $117 000).

   153.A payment of $50 500 to the wife would represent 43.16 per cent of the equity.  A payment of $66 500 to the husband would represent 56.84 per cent of the equity.

5. I raised this matter with the legal representatives of the parties in Court on 7 August 2012 and indicated that if I did not receive submissions from them about this matter by today, I would proceed to amend the orders in this manner.  I have received no submissions.

6. I note that I also extended the suspension of commencement of operation of the substantive orders so that they would not commence until tomorrow, 18 August 2012.

I certify that the preceding six (6) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 17 August 2012.

Associate:     

Date:              17 August 2012