Luo and Zeng - [2018] FCCA 1319

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUO & ZENG

[2018] FCCA 1319

Catchwords:
FAMILY LAW – Property – assessment of contributions – s.75(2) factors – adjustments made.

Legislation:

Family Law Act 1975, ss.75, 79

Cases cited:

Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
In the marriage of Briese (1985) 10 FamLR 642
Jones & Dunkel (1959) 101 CLR 298
Livesey & Jenkins [1985] 1 All ER 106
Oriolo v Oriolo (1985) 10 FamLR 665
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford & Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Thompson & Berg [2014] FamCAFC 73

Applicant:

MS LUO

Respondent:

MR ZENG

File Number:

SYC 1232 of 2017

Judgment of:

Judge Obradovic

Hearing date:

16 May 2018

Date of Last Submission:

16 May 2018

Delivered at:

Parramatta

Delivered on:

24 May 2018

REPRESENTATION

Counsel for the Applicant:

Ms Cantrall

Solicitors for the Applicant:

McLachlan Thorpe Partners

Appearing for the Respondent:

In person

ORDERS

Within seven days of the making of these Orders the parties shall do all acts and things, and sign all documents and instruments necessary to place for sale and sell the property at Property A in the State of New South Wales, folio (“the Property A property”), and the following shall apply:
(a)The Property A property shall be listed for sale by private treaty, with an agent as agreed between the parties, and failing agreement an agent as nominated by the president of the New South Wales Division of the Australian Property Institute (or comparable body).
(b)The listing price of the Property A property shall be as agreed between the parties and failing agreement shall be nominated by the Real Estate agent.
(c)In the event that the parties fail to agree on the solicitor to act on the sale of the Property A property, within 7 days of crystallisation of such disagreement the parties shall forthwith do all things and sign all documents necessary to have the nominee of the President of the New South Wales Law Society select a solicitor to act on the sale, and the parties shall accept such solicitor to act.
In the event the Property A property has not been sold within three months of the date that the property is listed for sale, the parties shall forthwith do all such acts and things, sign all documents and pay all such monies equally as necessary to produce a sale by public auction of the Property A property upon the following terms:
(a)The auctioneer shall be appointed by the agent;
(b)The auction shall take place within 30 days;
(c)The reserve price, unless agreed upon by the parties shall be nominated by the agent;
(d)The parties shall each pay and be responsible for one half of the auctioneers expenses payable before the Property A property is auctioned;
(e)In the event the property does not sell at auction, the property shall be re-listed for auction within a further two months of the…

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 Luo and Zeng

Details

AGLC: Luo and Zeng [2018] FCCA 1319
Case: [2018] FCCA 1319
Decision Date: 24 May 2018

CaseChat Overview and Summary

This matter concerned orders made by Judge Obradovic in the Federal Circuit Court of Australia, dealing with the division of property between the parties, Ms Luo (the wife) and Mr Zeng (the husband). The dispute involved the sale of a property, the distribution of sale proceeds, the winding up of a company, and the division of superannuation interests and other financial resources.

The court was required to determine the terms and conditions for the sale of a property, including the method of sale, listing price, and the appointment of agents and solicitors in the event of disagreement. Further, the court needed to establish the priority of payments from the sale proceeds, including adjustments, costs, mortgage discharge, company debts, and the final distribution between the parties. The court also addressed the division of superannuation interests pursuant to section 90MT(1)(a) of the *Family Law Act 1975* (Cth) and the retention of other assets and liabilities by each party.

The court ordered that the property be listed for sale by private treaty within seven days, with provisions for appointing an agent and determining the listing price if the parties could not agree. If the property remained unsold after three months, it was to be sold by public auction, with further provisions for re-listing if it did not sell at auction. The proceeds of sale were to be applied in a specific order of priority, with the balance to be distributed 53% to the wife and 47% to the husband. The court also made orders for the division of superannuation, the closure of joint bank accounts, and the exclusive retention of other assets and liabilities by each party, including provisions for indemnification. The Registrar of the Federal Circuit Court was appointed to execute documents if a party refused to do so.

Orders

Orders of the court

Within seven days of the making of these Orders the parties shall do all acts and things, and sign all documents and instruments necessary to place for sale and sell the property at Property A in the State of New South Wales, folio (“the Property A property”), and the following shall apply:

(a) The Property A property shall be listed for sale by private treaty, with an agent as agreed between the parties, and failing agreement an agent as nominated by the president of the New South Wales Division of the Australian Property Institute (or comparable body).

(b) The listing price of the Property A property shall be as agreed between the parties and failing agreement shall be nominated by the Real Estate agent.

(c) In the event that the parties fail to agree on the solicitor to act on the sale of the Property A property, within 7 days of crystallisation of such disagreement the parties shall forthwith do all things and sign all documents necessary to have the nominee of the President of the New South Wales Law Society select a solicitor to act on the sale, and the parties shall accept such solicitor to act.

In the event the Property A property has not been sold within three months of the date that the property is listed for sale, the parties shall forthwith do all such acts and things, sign all documents and pay all such monies equally as necessary to produce a sale by public auction of the Property A property upon the following terms:

(a) The auctioneer shall be appointed by the agent;

(b) The auction shall take place within 30 days;

(d) The parties shall each pay and be responsible for one half of the auctioneers expenses payable before the Property A property is auctioned;

(e) In the event the property does not sell at auction, the property shall be re-listed for auction within a further two months of the date of the previous auction, with the reserve price as agreed upon by the parties, and failing agreement as nominated by the agent.

Upon settlement of the sale of the Property A property the proceeds of the sale shall be applied in the following priority:

(a) Any adjustment of rates, taxes and charges;

(b) Agents’ costs and commission;

(d) Such sum as is required to discharge the mortgage to Bank 1 secured on the Property A property;

(e) Such sum as is required to discharge/pay the debts/fees owing by (business omitted) Pty Ltd to the Australian Taxation Office and ASIC including any accountants’ fees or associated fees;

(f) The balance of the sale proceeds thereafter to be disbursed as follows:

(i) 53% to the wife; and

(ii) 47% to the husband.

Following the payment of the debts/fees owing by (business omitted) Pty Ltd the wife shall forthwith do all acts and things and sign all documents necessary to wind up (business omitted) Pty Ltd.

Orders (b) and (c) below have effect from the operative time:

(a) Pursuant to section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of Ms Luo interest in the Super Fund, the trustee shall pay to Mr Zeng the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $37,700 and there should be a corresponding reduction in the entitlement of the person whom a splittable payment would have been made but for these Orders.

(b) That, having been accorded procedural fairness in relation to the making of this order, this order binds the trustee of the superannuation fund.

(c) That operative time for this order is twenty-eight business days after the date of service of the orders on the trustee of the superannuation fund.

(d) The Applicant shall cause her solicitors to serve the trustee of the superannuation fund with these orders forthwith.

Within 14 days of the date of these orders the parties shall do all things necessary to close any joint bank accounts and distribute the balance of such accounts equally between the parties.

Otherwise the Applicant shall retain to the exclusion of the Respondent the following:

(a) All bank accounts in her name;

(b) All superannuation in her name;

(c) All other property and financial resources in the title possession and/or control of the Applicant as at the date of these orders.

Otherwise the Respondent shall retain to the exclusion of the Applicant the following:

(a) All bank accounts in his name;

(b) All superannuation in his name; and

(c) All other property and financial resources in the title possession and/or control of the Respondent as at the date of these orders.

The Applicant shall remain liable for all liabilities and/or claims in her name not dealt with by these orders, including credit cards, and shall forever indemnify the Respondent in relation to such liabilities/claims and in relation to any property she is to receive pursuant to these orders.

10.

The Respondent shall remain liable for all liabilities and/or claims in his name not dealt with by these orders, including credit cards, and shall forever indemnify the Applicant in relation to such liabilities/claims and in relation to any property he is to receive pursuant to these orders.

11.

The parties shall do all acts and things and give all consents and execute all documents in writing necessary to give effect to the orders made herein.

12.

In the event that either party refuses or neglects to execute any Deed or instrument necessary to give effect to all or any of the orders made herein, the Registrar of the Federal Circuit Court of Australia be appointed pursuant to section 106A to execute such Deed or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the said Deed or instrument.

13.

Remove all outstanding issues from the list of cases awaiting finalisation.

NOTATION

A. These orders shall not be entered for a period of 28 days, thus allowing time for the trustee of the Super Fund to apply to have the orders set aside pursuant to Rule 16.05(1) of the Federal Circuit Court Rules 2001 (Cth).

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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