LING & CHANG

[2012] FamCA 1070

FAMILY COURT OF AUSTRALIA

LING & CHANG [2012] FamCA 1070

FAMILY LAW – PROPERTY – transfer of residence

APPLICANT: Ms Ling

RESPONDENT: Mr Chang

FILE NUMBER: MLC 3829 of 2012

DATE DELIVERED: 27 November 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 27 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Teicher

SOLICITOR FOR THE APPLICANT: Mirabellas Solicitors

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

BY CONSENT IT IS ORDERED 

1. That within 28 days of the making of these orders (“the date”):

   (a)The Respondent do all such acts and things and sign all such documents as may be required to transfer to the Applicant at the expense of the Applicant all of his right, title and interest in the real property situate at and known as B Street, Suburb C (“the Suburb C property”) being the whole of the land described in Certificate of Title Volume … Folio …;

   (b)Contemporaneously with the transfer of the Suburb C property the Applicant refinance the mortgage to the National Australia Bank secured against the said property into her sole name and further indemnify the Respondent against any encumbrances affecting the Suburb C property;

   (c)The Applicant do all such acts and things and sign all such documents as may be required to transfer to the Respondent at the expense of the Respondent all of her right, title and interest in the real property situate at and known as D Street, Suburb E (“the Suburb E property”) being the whole of the land described in Certificate of Title Volume … Folio …;

   (d)Contemporaneously with the transfer of the Suburb E property the Respondent refinance the mortgage to the Commonwealth Bank of Australia secured against the said property into his sole name and further indemnify the Applicant against any encumbrances affecting the Suburb E property; and

   (e)The Applicant pay the sum of $137,000.00 to Mr H of F Street, Suburb G in satisfaction of the monies owed to him by the Respondent and that the payment be made on or before 1 February 2013.

2. The parties each forthwith do all such acts and things and sign all such documents as may be required to complete the subdivision proposed by Plan of Subdivsion No … (“the subdivision”) for the real property situate at and known as I Street, Suburb J (“the Suburb J property”) being the whole of the land described in Certificate of Title Volume … Folio ...

3. For the purposes of effecting the subdivision:

   (a)The Applicant shall have sole conduct and control;

   (b)The Applicant shall at first instance make all payments of the mortgage secured against the Suburb J property and all rates, taxes and outgoings of the said property pending the sale (or transfer pursuant to these orders) of all of the lots arising from the subdivision;

   (c)The Applicant shall at first instance pay all costs and expenses of the subdivision; and

   (d)The Applicant shall provide to the Respondent on the first day of each month a progress report in relation to the subdivision and a statement of all monies paid by her pursuant to subparagraphs 3(b) and (c) of these Orders along with copies of all invoices, receipts and bank statements which verify the said statement.

4. Upon the completion of the subdivision the parties to do all such acts and things and sign all such documents as may be required to sell (“the sales”) each of the lots arising from the subdivision and for the purposes of effecting the sales:

   (a)The Applicant to have sole control and management of the sale process;

   (b)The Applicant to appoint a Real Estate Agent of her choice to sell the said lots and the Respondent to forthwith sign the necessary sale authorities upon being requested to do so by the Applicant;

   (c)The terms and conditions of each of the sales to be determined by the Applicant; and

   (d)The sale price or reserve price for each of the lots to be determined by the Applicant.

5. Upon the completion of each of the sales the proceeds to be applied as follows:

   (a)First, to pay all costs, commissions and expenses of the sale;

   (b)Second, to pay the mortgage secured against the Suburb J property and any rates, taxes and outgoings of the Suburb J property and/or the lots arising from the subdivision of the said property;

   (c)Third, to repay to the Applicant any expenses incurred by her pursuant to subparagraphs 3(b) and (c) of these orders;

   (d)Fourth, to pay any capital gains tax or other tax arising from the sale; and

   (e)Fifth, the balance then remaining to be divided as follows:

   (i)     75 per cent to the Applicant; and

   (ii)    25 per cent to the Respondent.              

6. The Applicant to notify the Respondent in writing forthwith upon the completion of the subdivision, within 14 days of such notice being provided either party may elect, by notice in writing to the other, to retain one or more of the lots arising from the subdivision in lieu of their entitlement pursuant to subparagraph 5(e) of these Orders.

7. The party receiving notice of the other’s election pursuant to paragraph 6 of these Orders shall advise the other party in writing of their agreement or otherwise to the lot(s) that the electing party wishes to retain.

8. In the event that the parties agree in relation to one or both of them retaining a particular lot or lot(s) in lieu of their entitlements pursuant to subparagraph 5(e) of these Orders, but cannot agree on the value to be attributed to each or any of the said lots, the value shall be determined by a valuer agreed between the parties and in default of agreement by a valuer appointed by the President of the Real Estate Institute of Victoria, the costs of each valuation shall be paid by the party who is proposing to retain the lot which has been valued.

9. The parties to each have liberty to apply with respect to:

   (a)Any dispute between them in relation to paragraphs 2 to 5 (inclusive) of these orders; and

   (b)Any dispute between them in relation to one or both of them retaining a particular lot or lot(s) in lieu of their entitlements pursuant to subparagraph 5(e) of these Orders (save for a dispute about the value to be attributed to each or any of the said lots).

10. In the event that one or both of the parties retain(s) one or more of the lots arising from the subdivision, the party who is to retain each lot shall be solely liable for any capital gains tax or other tax arising from their acquisition or subsequent disposal of that lot.

11. On or before the date the Respondent do all such acts and things and sign all such documents as may be required to transfer to the Applicant at her expense all of his right, title and interest in the Chang Family Trust (“the Trust”) and its corporate trustee K Pty Ltd (“the company”) including but not limited to the following:

    (a)A deed renouncing the powers of appointment previously conferred on him by the Deed of Trust for the Trust (“the Trust Deed”) to be served on the Trustee at its usual address together with a nomination in writing of the Applicant to exercise the powers of appointor;

    (b)An irrevocable deed declaring that he no longer wishes to be a beneficiary and requiring the trustee of the Trust to exclude him from the class of beneficiaries entitled by the Trust Deed as;

    (c)All documents necessary to give effect to his resignation as a director of the Company;

    (d)All documents necessary to transfer all of his shares in the Company to the Applicant;

    (e)All documents necessary to forgive any entitlement he may otherwise have by way of any beneficiary loan account; and

    (f)That the Applicant and Respondent will do all things necessary to complete any taxation returns with respect to K Pty Ltd.

12. Contemporaneously with the Respondent complying with paragraph 11 of these Orders the Applicant to indemnify the Respondent and keep him indemnified with respect to all liabilities of the Trust and the Company including but not limited to taxation liabilities.

13. The Applicant and the Respondent to each retain the motor vehicles registered in each of their names.

14. In the event that either party refuses or neglects to execute any deed or instrument or to sign any document necessary to give effect to the operation of these orders, the registrar of the court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute or sign such deed, instrument or document in the name of that party.

15. That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any moneys under these or any subsequent Orders:

    (a)That other than as otherwise set out in this agreement the parties have the sole right title and interest in any other property which is at the date hereof in their possession, title or name and they shall be solely liable for and indemnify the other against any personal liabilities;

    (b)That the Applicant and Respondent do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein; and

    (c)That in the event that either party refuses or neglects to execute any deed or instrument, the registrar of the court be appointed pursuant to section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

16. That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any moneys under these or any subsequent Orders:

    (a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these Orders;

    (b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

    (c)Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these Orders;

    (d)All insurance policies are to become the sole property of the owner named hereon;

    (e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

    (f)Any joint tenancy of the Applicant and Respondent in any real or personal estate is hereby expressly severed.

17. That as far as practicable these Orders shall finally determine the financial and other relationships between the parties and avoid further proceedings between them.

BY THE COURT IT IS ORDERED

1. That the orders be prepared by the Court within 7 days.

2. That the applicant’s solicitors shall then serve a sealed copy of this order on the respondent as soon as practicable by registered mail to D Street, Suburb E, with a covering letter explaining that the respondent has 14 days to apply to the Court to set aside the orders or any of them.

3. That the respondent, Mr Chang, shall have 14 days from the date of the service of the orders by registered mail to bring an application to set aside the orders or any of them.

4. That there shall be a transcript of my Reasons given this day, retained on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ling & Chang 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 MELBOURNE

FILE NUMBER: MLC 3829 of 2012

Ms Ling

Applicant

And

Mr Chang

Respondent

REASONS FOR JUDGMENT

1. An application for property orders to be made by consent has been referred to me today by the Registrar, to be dealt with in open court. 

2. The parties have been litigating since earlier this year in relation to the property arising out of their 15 year de facto relationship which lasted between 1997 and 2012. 

3. Ms Ling is aged 55 and Mr Chang is aged 48.  They are both in reasonably good health.  They have two children aged 14 and 12.  The children live with the mother and see very little of their father. 

4. Mr Chang is not present in court today and that is the reason why the matter has been referred to me by the Registrar.

5. The history shows – and I am conscious of it from having one dealing with this case some time this year – that it has been a hotly contested case between the parties.  However now, not only is there a resolution, but there are orders that are purportedly signed by Mr Chang as well as a letter signed by Mr Chang in response to correspondence from Ms Ling’s solicitors in which Mr Chang asks for the orders to be made in his absence.  I do propose making the orders but I am going to give Mr Chang a period of 14 days in which he can bring any application in relation to the orders, just as a safety-valve or a backup, given that he has not been present in court.

6. I am satisfied that Mr Chang certainly knows about the property proceedings.  He was a very active participant when the matter came before me and I do have on affidavit from Mr Mirabella that Mr Chang has properly received the consent orders, been advised to get his own independent advice, and has not only signed and returned the orders but, as I said, signed the letter supporting the application, that is a letter proposed previously by the Registrar.  Mr Chang has also re-signed one particular page, where there was a slight alteration.

7. I am satisfied too that the orders are just and equitable.  I take into account the question of contributions and the version that I have before me, which is that Ms Ling worked very hard establishing her successful assisted accommodation business throughout the relationship, that for the majority of the relationship she was the sole breadwinner, and that she also took on the greatest part of the responsibility for the care of the children and the homemaking, and that Mr Chang, for his part, only went into the restaurant or hospitality business in the later stages of the relationship.

8. I am also asked to take into account, and I think it is reasonable to do so, that since the parties separated Mr Chang has paid no child support and given no financial support for the children.  From that perspective, Ms Ling faces still a large number of years, in addition to the years she has already faced, of being the one who carries the sole financial responsibility for the children, made the harder when the children are spending very little time with their father.  So effectively she has their full-time care and the full financial responsibility for them.

9. In addition, and I know this was a hotly contested topic when the parties were briefly before me, Ms Ling has consistently claimed that Mr Chang has significantly more resources than he has admitted, and that he has moved funds offshore.  She is unable to be definitive as to how much.  She says too that he has moved assets, particularly a restaurant business, into his nephew’s name, but again she is unsure precisely as to relevant figures.  She says that generally he has used resources, some of which are apparent and are brought back into the reckoning in calculating the shares the parties are to receive, but other sums, without extensive and expensive litigation, simply cannot be established.

10. So taking all those factors into account I am going to accept the proposed settlement whereby, unusually, Ms Ling is to receive 70 per cent of a fairly substantial pool of assets, and Mr Chang is to retain the equivalent of 30 per cent.  It means that he will be receiving or retaining assets worth a little less than $2.5 million and she will be retaining assets worth a little less than $5.5 million. 

11. For the reasons that I have given I am satisfied in the unusual circumstances that it is a just and equitable settlement. 

12. So I am going to make orders in accordance with the Minutes of Consent Orders, dated 18 October 2012.  I am going to direct that the orders be prepared by the applicant’s solicitors within seven days.  I will order that the applicant’s solicitors shall then serve a sealed copy of this order on the respondent as soon as practicable by registered mail to D Street, Suburb E.

13. The next order will be that the respondent, Mr Chang, shall have 14 days from the date of the service of the orders by registered mail to bring an application to set aside the orders or any of them, failing which the orders are final.

14. In the paragraph where I have said that you are to serve it by registered mail to that address I am going to add:  with a covering letter explaining that the respondent has 14 days to apply to the court to set aside the orders or any of them. 

15. Otherwise I order that there be a transcript of my reasons given this day which will be retained on the court file. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 27 November 2012.

Associate: 

Date:  27 November 2012