Luan & Luan - [2023] FedCFamC2F 870

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Luan & Luan [2023] FedCFamC2F 870

File number: PAC 5611 of 2022

Judgment of: JUDGE BLAKE

Date of judgment: 20 July 2023

Catchwords:
FAMILY LAW- Property – where wife filed an application seeking alteration of property interests – where wife discontinued the application - where the discontinuance did not comply with rule 10.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 - HELD that discontinuation of the proceedings not effective – order dismissing the application of the wife granted - costs ordered.

FAMILY LAW – Bankruptcy – where husband bankrupt – where trustee in bankruptcy sought orders that he be appointed trustee to sell the property of the parties under State law being the Conveyancing Act 1919 (NSW)- whether the Court can make the orders sought and whether section 79 of the Judiciary Act 1903 (Cth) applies and enables the Court to make the orders sought – HELD that section 79 of the Judiciary Act 1903 applies as the Court is exercising federal jurisdiction – HELD that the Court may make the orders sought under State law being the Conveyancing Act 1919 (NSW).

Legislation:
Conveyancing Act 1919 (NSW) ss 66G(1), 66G(1A), 66G(2), 66G(3), 66G(4), 66G(5), 66G(6), 66G (7), 66G(8), 66G(9), Part 4, Division 6.

Family Law Act 1975 (Cth) ss 79, 117(1), 117(2A)(c), 117(2A)(d), 117(2A)(e).

Judiciary Act 1903 (Cth) ss 79(1), 79(1A), 79(2), 79(3), 79(4).

Federal Circuit and Family Court of Australia (Division 2)(Family Law) Rules 2021.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 1.33, 1.33(2), 1.34(1), 10.02(1), 10.02(2), 10.02 (3), 10.02 (4), 10.02(5), 10.26(1), 10.27(1), 10.27(2), 15.19(2).

Cases cited: Foundas v Arambatzis [2020] NSWCA 47.

Division: Division 2 Family Law

Number of paragraphs: 36

Date of hearing: 13 June 2023

Place: Parramatta

The Applicant: No Appearance

The First Respondent: No Appearance

Counsel for the Second Respondent: Mr Horobin

Solicitor for the Second Respondent: Chambers Russell Lawyers
ORDERS

PAC 5611 of 2022

BETWEEN:
MS LUAN

Applicant

AND:
MR LUAN

First Respondent

A BANKRUPT THE TRUSTEE OF THE PROPERTY OF MR LUAN

Second Respondent

order made by:

JUDGE BLAKE

DATE OF ORDER:

20 July 2023

THE COURT ORDERS THAT:
1.The Application of the wife filed 12 October 2022 is dismissed.
2.Mr B of C Company, D Street, Suburb E, NSW and Mr F of G Company, H Street, Suburb J, NSW be appointed trustees (‘Trustees’) of the land situated at K Street, Suburb L, NSW in the state of New South Wales, being the whole of the land the subject of folio identifier … (’Property’) pursuant to the provisions of section 66G of the Conveyancing Act 1919 (NSW).
3.The Property be vested in the Trustees, as Joint Tenants, subject to any encumbrances affecting the entirety, but free from encumbrances affecting any undivided shares, to be held by them on the statutory trust for sale under Part 4, Division 6 of the Conveyancing Act

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 Luan & Luan

Details

AGLC: Luan & Luan [2023] FedCFamC2F 870
Case: [2023] FedCFamC2F 870
Decision Date

CaseChat Overview and Summary

The wife, Ms Luan, filed an application against her husband, Mr Luan, and the trustee in bankruptcy for Mr Luan, seeking orders for the transfer of her husband’s 50% interest in their jointly owned property. The husband, represented by the trustee in bankruptcy, opposed the application. The wife subsequently discontinued the application but did not comply with the procedural requirements of the Rules. The court held that the discontinuance was not effective and dismissed the wife’s application. The court also granted the trustee in bankruptcy’s application for orders to appoint trustees to sell the property under the Conveyancing Act 1919 (NSW). The court found that it was exercising federal jurisdiction under the Judiciary Act 1903 (Cth) and could therefore make the orders sought. The court ordered that the property be sold, and the net proceeds divided equally between the wife and the husband’s bankrupt estate, after costs. The wife was ordered to pay half of the trustee in bankruptcy’s costs of the proceedings.

Orders