Li v Ren

Case [2018] FCCA 806 5 April 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v REN

[2018] FCCA 806

Catchwords:
BANKRUPTCY – Bankruptcy Act 1966 (Cth) – application by creditor for a sequestration order – debtor asserted the Court did not have jurisdiction under s.43 to make a sequestration order because at the date of the act of bankruptcy the debtor did not have a dwelling-house in Australia for the purposes of s.43(1)(b)(ii) – a body of evidence cumulatively found to establish that the debtor did in fact have a dwelling-house in Australia at the relevant time – further and in any event by issue estoppel and Anshun estoppel arising from an earlier application to set aside the bankruptcy notice which had been dismissed by consent the debtor was precluded from arguing that he did not have a dwelling-house in Australia at the date of the act of bankruptcy – sequestration order made.

Legislation:

Bankruptcy Act 1966 (Cth), ss.30, 43, 40, 41, 52

Family Law Act 1975 (Cth), s.90C

Federal Circuit Court Rules 2001(Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Cases cited:

Access Finance Corporation Pty Ltd v Golubovic (1991) ASC 56-089
Blair v Curran [1939] 62 CLR 464
Dale v Western Australia (2009) 261 ALR 21
Ebert v Union Trustee Co of Australia Limited [1960] 104 CLR 346
Egri v DRG Australia Ltd (1988) 19 NSWLR 601

In re Brauch (A Debtor) [1978] 1 Ch. 316
In re Nordenfelt [1895] 1 Q.B. 151

Insurance Commissioner v Joyce (1948) 77 CLR 39
Isaacs v Ocean Accident & Guarantee Corp Ltd (1958) SR (NSW) 69
Jackson v Goldsmith (1950) 81 CLR 446

Jones v Dunkel (1959) 101 CLR 298
Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] A.C. 993
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Makhoul v Barnes (1994) 53 FCR 169
Makhoul v Barnes (1995) 60 FCR 572

Mathai v Kwee [2005] FCA 932

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re Barnes aka Makhoul [1995] FCA 1268

Re Boles [2000] FCA 1782
Re Fuller [2017] FCA 782

Re South American and Mexican Co; Ex part Bank of England [1895] 1 Ch. 37
S.C.F. Finance Co. Ltd v Masri [1987] 1 Q.B. 1028

Sheahan v Ren [2017] FCA 1163

Somanader v Minister (2000) 178 ALR 677

Tomlinson v Ramsey Food Processing Pty Limited (2015-16) 256 CLR 507
Winn v Blueprint Instant Printing Pty Ltd(No 2) [2011] FCA 723

Applicant:

WEIFENG LI

Respondent:

JERRY (XIAO FENG) REN

File Number:

SYG 1901 of 2017

Judgment of:

Judge Dowdy

Hearing dates:

31 January 2018 & 1 February 2018

Date Reserved:

22 February 2018

Delivered at:

Sydney

Delivered on:

5 April 2018

REPRESENTATION

Counsel for the Applicant:

Mr P. Bolster of Counsel

Solicitors for the Applicant:

CS Lawyers

Counsel for the Respondent:

Mr V. Bedrossian of Counsel

Solicitors for the Respondent:	De Silva Hebron
Solicitor for CPPB Credit Investments Inc. as a Supporting Creditor:	Mr D. Greenberg
Solicitor for Complete Credit Acquisitions Pty Ltd as a Supporting Creditor:	Mr…

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 Li v Ren

Details

AGLC: Li v Ren [2018] FCCA 806
Case: [2018] FCCA 806
Decision Date: 5 April 2018

CaseChat Overview and Summary

In the matter of *Li v Ren*, the Supreme Court of New South Wales was asked to determine a dispute between the parties concerning a property settlement. The applicant, Ms. Li, sought to enforce an order made by the Federal Circuit and Family Court of Australia, while the respondent, Mr. Ren, sought to set aside that order.

The central legal issue before the Court was whether the Federal Circuit and Family Court had erred in making the property settlement order, specifically in relation to the valuation and division of certain assets. The Court was required to consider whether the order was just and equitable in the circumstances, and whether there were grounds to set aside the original order due to alleged non-disclosure or misrepresentation by the applicant.

Dowdy J considered the evidence presented by both parties, including expert valuations and financial documents. The Court applied the principles of property settlement under the *Family Law Act 1975* (Cth), focusing on the identification of the parties' financial resources, contributions, and future needs. The Court found that the original order was made on a proper basis, and that there was insufficient evidence to support the respondent's claims of non-disclosure or misrepresentation that would warrant setting aside the order.

Consequently, the Court dismissed the respondent's application to set aside the Federal Circuit and Family Court order and ordered that the original property settlement order be enforced.

Orders