MENG and NHAM

Case [2013] FCWA 13


JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MENG and NHAM [2013] FCWA 13

CORAM: CRISFORD J

HEARD: 24, 25, 26, 27, 30 & 31 JULY 2012; 1 AUGUST 2012 AND

22, 23, & 24 OCTOBER 2012

DELIVERED : 8 FEBRUARY 2013

FILE NO/S: PTW 887 of 2010

BETWEEN: CHEN MENG

Applicant

AND

JAMES NHAM
First Respondent

AND

YAN NHAM
Second Respondent

AND

LILY LIANG
Third Respondent

Catchwords:

PROPERTY SETTLEMENT - Pool of assets - Overseas property - Add backs - Share trading losses - s 75(2) - Composition of unit trust - Unconscionable conduct - Just and equitable outcome

Legislation:

Family Law Act 1975 (Cth)

(Page 2)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr G Cridland

First Respondent : Self Represented Litigant

SecondRespondent : Dr A Dickey QC

Third Respondent : Dr A Dickey QC

Solicitors:

Applicant: G G Legal

First Respondent : Self Represented Litigant

Second Respondent : Ideal Legal Services

Third Respondent : Ideal Legal Services

Case(s) referred to in judgment(s):

Black and Kellner (1992) FLC 92-287

Blomley v Ryan (1956) 99 CLR 362

Briese and Briese (1986) FLC 91-713

Commercial Bank of Australia v Amadio (1983) 151 CLR 447

Fysh v Page (1956) 96 CLR 233

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Kannis and Kannis (2003) FLC 93-135

Luciano v Luciano [2000] FamCA 1712

Malpass & Mason (2000) FLC 93-061

Martin and Newton [2011] FamCAFC 233

Neil v Nott (1984) 68 ALJR 509

Omacini and Omacini (2005) FLC 93-218

Oriolo and Oriolo (1985) FLC 91-653

Stanford v Stanford [2012] HCA 52

Tate v Tate (2000) FLC 93-047

Townsend and Townsend (1995) FLC 92-569

Vadasz v Pioneer Concrete SA Pty Ltd (1995) 184 CLR 102

Weir and Weir (1993) FLC 92-338

(Page 3)

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1 [Chen Meng] aged 44 years and [James Nham] aged 52 years had a relationship of about 12 years. They met in Beijing in 1995 and subsequently married in Perth [in] 1996. They finally separated [in] 2008.

2During their relationship they lived apart for a considerable amount of time. Ms [Meng] studied in the United States and the United Kingdom for periods between 2000 and 2008. Dr [Nham] worked overseas in the United Kingdom, China and Hong Kong for periods between 2001 and 2007.

3Ms Meng has a Bachelor degree with honours in Commerce from Curtin University. Dr. Nham, who qualified as a medical practitioner in China, has worked in Australia as an acupuncturist.

4During their relationship they were the recipients of considerable largesse from Dr Nham’s parents, [Yan Nham], now aged almost 81 years, and [Lily Liang], now 80 years (“the parents”). Their finances were, and continue to be, entwined.

5The parents, who originally lived in Hong Kong, were granted permanent residency in Australia in early 1995. They now live in Perth. In the late 1980s Dr Nham…

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MENG and NHAM [2013] FCWA 13
Case
[2013] FCWA 13
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CaseChat Overview and Summary

In the Family Court of Australia, the matter of Meng and Nham revolved around the distribution of assets between the parties, including an overseas property, following their divorce. The court was required to determine the appropriate allocation of the assets and liabilities, including the add-backs of certain transactions, share trading losses, and whether any unconscionable conduct had occurred. The court also needed to consider the composition of a unit trust and whether a just and equitable outcome was achieved.

The legal issues before the court included the proper characterisation and division of the pool of assets, the treatment of add-back transactions, the treatment of share trading losses, and whether there was unconscionable conduct warranting a departure from the statutory 50/50 split under section 75(2). Additionally, the court had to assess the composition of a unit trust and its impact on the division of assets. The court also needed to determine if the overall distribution was just and equitable.

The court held that the add-back transactions should be disregarded in determining the pool of assets. It also found that the share trading losses should be allocated between the parties in proportion to their contributions to the venture. The court determined that there was no unconscionable conduct by either party. Regarding the unit trust, the court found that it was appropriately composed and did not warrant a departure from the statutory division. Ultimately, the court concluded that the overall distribution of assets was just and equitable, reflecting the contributions and needs of each party.

The court ordered that the overseas property be divided equally, with each party to bear their own legal costs. The share trading losses were allocated in proportion to the contributions made by each party. The court also confirmed the composition of the unit trust and upheld the overall division of assets as just and equitable. Each party was ordered to pay their own legal costs.

Orders

Orders of the court

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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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