MENG and NHAM - [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…

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 MENG and NHAM

Details

AGLC: MENG and NHAM [2013] FCWA 13
Case: [2013] FCWA 13
Decision Date: 8 FEBRUARY 2013

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