KONG & LENDI - [2020] FamCA 1091

FAMILY COURT OF AUSTRALIA

KONG & LENDI

[2020] FamCA 1091

FAMILY LAW – CONTESTED INTERIM APPLICATION FOR PART PROPERTY SETTLEMENT – evidence to support each party’s application defective – each party’s application refused.

Family Law Act 1975 (Cth), ss 75(2), 78, 79
Family Law Rules 2004 (Cth)

Cao & Trong (No. 2) [2019] FamCA 941

Clayton v Bant [2020] HCA 44

Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Lan & Hao (No 2) [2017] FamCAFC 175
Marvel v Marvel (2010) 43 Fam LR 348
Pollard & Nordberg [2019] FamCA 365
Redmond & Redmond [2014] FamCAFC 155
SS & AH [2010] FamCAFC 13
Strahan v Strahan (2009) 42 Fam LR 203

APPLICANT:

Ms Kong

RESPONDENT:

Mr Lendi

FILE NUMBER:

DGC

2858

2020

DATE DELIVERED:

18 December 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

10 November 2020

DATE OF LAST SUBMISSION:

17 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Nevile & Co

COUNSEL FOR THE RESPONDENT:

Mr Smith

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

Each party’s application for disbursement to him or her of the sum of $213,477.61 presently standing in the trust account of B Lawyers is dismissed.
This proceeding is referred to a registrar for ongoing case management.
The registrar must arrange for a mediation in this proceeding to be convened by 4pm on 31 March 2021.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2858 of 2020

Ms Kong

Applicant

And

Mr Lendi

Respondent

REASONS FOR JUDGMENT

Introduction

The husband’s application for a partial property settlement came before me while sitting in the Judicial Duty List on 10 November 2020. On that day I ordered each party to file and serve further affidavit material and submissions following which, after 1 December 2020, I informed the parties that the application for a partial property settlement would be determined on the papers.
This is my determination.

Synopsis

For the reasons that follow, in my judgment –
a)neither party has persuaded me that he or she is entitled to the payment of the sum of $213,477.61 being the funds remaining in the B Lawyers Trust Account;
b)those funds should be preserved pending the hearing and determination of the trial of this proceeding;
c)this proceeding should be referred to a registrar for…

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 KONG & LENDI

Details

AGLC: KONG & LENDI [2020] FamCA 1091
Case: [2020] FamCA 1091
Decision Date: 18 December 2020

CaseChat Overview and Summary

In the matter of *Kong & Lendi*, heard by Wilson J, the parties brought contested interim applications for the settlement of their property. Both parties sought the disbursement of a sum of $213,477.61 held in trust by B Lawyers. However, the evidence presented by each party to support their respective applications was found to be defective.

The central legal issue before the court was whether either party had presented sufficient evidence to warrant the interim disbursement of the funds held in trust. The court was required to determine if the applications met the necessary threshold for such an order, given the deficiencies in the supporting material.

Wilson J dismissed both parties' applications for the disbursement of the funds. The court reasoned that the evidence provided by each party was inadequate to justify an interim order for the release of the money. Consequently, the proceeding was referred to a registrar for ongoing case management, with the registrar directed to arrange for mediation to be convened by 4pm on 31 March 2021.

Orders

Orders of the court

Each party’s application for disbursement to him or her of the sum of $213,477.61 presently standing in the trust account of B Lawyers is dismissed.

This proceeding is referred to a registrar for ongoing case management.

The registrar must arrange for a mediation in this proceeding to be convened by 4pm on 31 March 2021.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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