LIU & BAI - [2017] FamCA 725

FAMILY COURT OF AUSTRALIA

LIU & BAI

[2017] FamCA 725

FAMILY LAW – PROPERTY – short marriage – relationship of 19 months – where the wife made greater initial financial contributions – where neither party sought an adjustment for s 75(2) factors – where the husband seeks 7.2 per cent of the asset pool – husband to receive four per cent of the asset pool.

Family Law Act 1975 (Cth) ss 79, 75(2)
Evidence Act 1995 (Cth) s 140

Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545
Brown v Green (1999) FLC 92-873
Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592
Kowaliw and Kowaliw (1981) FLC 91-092
Norbis & Norbis (1986) 161 CLR 513
Stanford v Stanford (2012) 247 CLR 108
Watson & Ling (2013) FLC 93-527

APPLICANT:

Ms Liu

RESPONDENT:

Mr Bai

FILE NUMBER:

MLC

4953

2015

DATE DELIVERED:

20 September 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

31 May 2017 & 1 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hoult

SOLICITOR FOR THE APPLICANT:

Canaan Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Ambrose

SOLICITOR FOR THE RESPONDENT:

Le Brun Glezakos Lawyers

Orders

That the wife retain to the exclusion of the husband all her right, title and interest in the real property situate at and known as B Street, Suburb C and indemnify the husband and keep him indemnified in respect of any liability or encumbrance affecting the said property.
That the wife retain to the exclusion of the husband, her interest in:-
(a)The proceeds of sale of the business trading as D Pty Ltd;
(b)The E Pty Ltd (ACN …).
That the wife indemnify the husband and keep him indemnified in respect of any and all liability arising from his interest in:-
(a)The D Pty Ltd business;
(b)The E Pty Ltd.
That the proceeds of sale of the German motor vehicle be applied as follows:-
(a)First in payment to the husband the sum of $42,480;
(b)Second, the balance then remaining to the wife.
That unless otherwise specified, and save for the purposes of enforcing any monies due under these or any subsequent orders:-
(a)Each party be solely entitled, to the exclusion of the other, to all other property (including choses-in-action, chattels and motor vehicles) in the possession of such party as at the date of these orders;
(b)Each party forego any claims they may have to any superannuation benefit belonging to or earned by the other;
(c)Any insurance policies remain in the sole property of the owner named therein;
(d)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
(e)Any joint tenancy is hereby expressly severed.
That all extant applications be otherwise dismissed.

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 Liu…

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 LIU & BAI

Details

AGLC: LIU & BAI [2017] FamCA 725
Case: [2017] FamCA 725
Decision Date: 20 September 2017

CaseChat Overview and Summary

In the matter of LIU & BAI, Johns J of the Family Court of Australia made orders concerning the division of property between the parties. The dispute involved the distribution of various assets, including real property, business interests, and a motor vehicle, as well as the allocation of liabilities associated with these assets.

The court was required to determine how the parties' respective interests in the real property at B Street, Suburb C, the proceeds of sale of the business trading as D Pty Ltd, and the shares in E Pty Ltd should be divided. Further, the court needed to address the allocation of liabilities arising from the parties' interests in the D Pty Ltd business and E Pty Ltd, and the distribution of the proceeds from the sale of a German motor vehicle. The court also had to make orders regarding all other property in the possession of each party, superannuation benefits, insurance policies, and the severance of any joint tenancies.

Johns J ordered that the wife retain exclusive title to the B Street property and indemnify the husband against any liabilities affecting it. The wife was also to retain her interest in the proceeds of sale of the D Pty Ltd business and her shares in E Pty Ltd, while indemnifying the husband against any liabilities arising from his interest in these entities. The proceeds from the sale of the German motor vehicle were to be applied first to pay the husband $42,480, with the balance going to the wife. All other extant applications were dismissed, with each party to retain exclusive entitlement to other property in their possession, forego claims to each other's superannuation, and be solely liable for and indemnify the other against liabilities encumbering property awarded to them. Joint tenancies were expressly severed.

Orders

Orders of the court

That the wife retain to the exclusion of the husband all her right, title and interest in the real property situate at and known as B Street, Suburb C and indemnify the husband and keep him indemnified in respect of any liability or encumbrance affecting the said property.

That the wife retain to the exclusion of the husband, her interest in:-

(a) The proceeds of sale of the business trading as D Pty Ltd;

(b) The E Pty Ltd (ACN …).

That the wife indemnify the husband and keep him indemnified in respect of any and all liability arising from his interest in:-

(a) The D Pty Ltd business;

(b) The E Pty Ltd.

That the proceeds of sale of the German motor vehicle be applied as follows:-

(a) First in payment to the husband the sum of $42,480;

(b) Second, the balance then remaining to the wife.

That unless otherwise specified, and save for the purposes of enforcing any monies due under these or any subsequent orders:-

(a) Each party be solely entitled, to the exclusion of the other, to all other property (including choses-in-action, chattels and motor vehicles) in the possession of such party as at the date of these orders;

(b) Each party forego any claims they may have to any superannuation benefit belonging to or earned by the other;

(d) 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

(e) Any joint tenancy is hereby expressly severed.

That all extant applications be otherwise dismissed.

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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