FEDERAL CIRCUIT COURT OF AUSTRALIA
| LONG & PENG | [2019] FCCA 1987 |
| Catchwords: FAMILY LAW – Property Settlement – final property orders – adjustment of property interests under section 79 of the Family Law Act 1975 (Cth) regarding property interests held in Australia – allegations of fraud and misappropriation of funds alleged against the wife – obligation on parties to make full and frank disclosure – each party failing to make adequate disclosure – both parties credibility in issue – whether it is just and equitable to make any order adjusting the parties interests in property – whether the order proposed is just and equitable – order made adjusting the parties interests in joint property – court satisfied that the order made is just and equitable in the circumstances. |
| Legislation: Family Law Act 1975 (Cth), ss.79, 79(4) Evidence Act 1995 (Cth), ss.101A, 102, 103, 106, 108 Federal Circuit Court Rules 2001 (Cth), r.24.03 |
| Cases cited: Stanford v Stanford (2012) 293 ALR 70, [2012] HCA 52, (2012) FLC 93-518 |
| Applicant: | MS LI |
| Respondent: | MR PENG |
| File Number: | BRC 2041 of 2016 |
| Judgment of: | Judge Tonkin |
| Hearing date: | 15 May 2019 |
| Date of Last Submission: | 15 May 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 24 July 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr J. O’Neill (Direct brief) |
ORDERS
Within 28 days from the date of these orders, the husband shall do all things necessary and sign all documents at the wife’s expense to transfer to the wife all his right, title and interest in the property situated at A Street, Suburb B in the State of Queensland (“the A Street, Suburb B property”).
Contemporaneously with Order (1) hereof the wife shall discharge the whole of the mortgage to Westpac bank in the sum of between $297,000 and $350,000 and thereafter indemnify the husband and keep him indemnified with respect to that mortgage.
The wife shall simultaneously at the time of discharge of the Westpac mortgage pay any outstanding land rates, land taxes and water rates with respect to the A Street, Suburb B property.
Within 28 days from the…
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- LONG & PENG [2019] FCCA 1987
- Case
- [2019] FCCA 1987
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CaseChat Overview and Summary
The primary legal issues before the court were whether it was just and equitable to make any order adjusting the parties' interests in their property, and if so, whether the proposed order was just and equitable in the circumstances. The court had to navigate the complexities arising from the parties' disclosure failures and the resulting impact on the assessment of their respective contributions and future needs.
Judge Tonkin found that it was just and equitable to make orders adjusting the parties' interests in their joint property. The court ordered the husband to transfer his interest in the A Street, Suburb B property to the wife, with the wife to discharge the associated mortgage and pay outstanding rates. The husband was also ordered to transfer his interest in OO shares to the wife. Conversely, the husband was declared the sole beneficial owner of several properties and an ANZ bank account, while the wife was declared the sole beneficial owner of a G Street, Suburb H property and a NAB account. Each party was to retain their sole interest in their respective superannuation funds and certain other bank accounts.
Orders
Orders of the court
1.
Within 28 days from the date of these orders, the husband shall do all things necessary and sign all documents at the wife’s expense to transfer to the wife all his right, title and interest in the property situated at A Street, Suburb B in the State of Queensland (“the A Street, Suburb B property”).
2.
Contemporaneously with Order (1) hereof the wife shall discharge the whole of the mortgage to Westpac bank in the sum of between $297,000 and $350,000 and thereafter indemnify the husband and keep him indemnified with respect to that mortgage.
3.
The wife shall simultaneously at the time of discharge of the Westpac mortgage pay any outstanding land rates, land taxes and water rates with respect to the A Street, Suburb B property.
4.
Within 28 days from the date of these orders, the husband shall do all things necessary and sign all documents to transfer at his expense to the wife the whole of his right, title and interest in OO shares.
5.
The husband is declared the sole and beneficial owner to the exclusion of the wife of the following:
(a) The property situated at C Street, Suburb D in the State of Queensland;
(b) The property situated at E1 Street, Suburb F in the State of Queensland;
(c) The property situated at E2 Street, Suburb F in the State of Queensland; and
(d) The husband’s interest in the ANZ account in the husband’s sole name.
6.
The wife is declared the sole and beneficial owner to the exclusion of the husband of the following:
(a) The property situated at G Street, Suburb H in the State of Queensland; and
(b) The wife’s interest in the NAB account in the wife’s sole name.
7.
The husband shall retain the whole of his interest in the HSBC account in his sole name.
8.
The husband shall retain the whole of his interest (if any) in the KK Investment account in his sole name.
9.
Each party shall retain the whole of his or her interest in superannuation in his or her sole name.
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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