Medium Neutral Citation: Nguyen v Corbett (No 4) [2019] NSWSC 712
Hearing dates: 7 December 2018; further written submissions ending 21 December 2018
Date of orders: 19 June 2019
Decision date: 19 June 2019
Jurisdiction: Equity
Before: Parker J
Decision:
The cross-claimant’s Notice of Motion filed 13 December 2018 be dismissed.
The cross-claim be dismissed.
The cross-claimant pay the second cross-defendant’s costs of proceedings on the cross-claim, including the costs of the Notice of Motion.

Catchwords:
FAMILY LAW — Property — Application for property settlement orders under the Family Law Act 1975 (Cth) (“FLA”) to replace property settlement orders earlier made by consent and subsequently set aside under FLA, s 79A – whether wife’s contributions during the marriage gave rise to proprietary interest by common interest constructive trust or “unjust enrichment” – whether otherwise “just and equitable” under FLA s 79 to make further provision for the wife out of the property.

FAMILY LAW — Property — Marriage — Adjustment of property interests – operation of FLA, ss 79 and 90AE - whether prior order under s 37A Conveyancing Act 1919 (NSW) that wife make property available to satisfy husband’s debts presents a bar to the cross-claim by way of Anshun estoppel – whether prior order could be set aside under s 79 FLA – whether prior order created security interest which cannot be displaced aside from exercise of the Court’s power under s 90AE - where prior order in effect equivalent in operation to security over the property or an order to charge the property with the liability – whether prior order could be set aside under r 36.16(3) Uniform Civil Procedure Rules 2005 (NSW) – whether prior order could be set aside under UCPR r 36.15 - where necessity to set order aside raised by the Court and no claim under FLA s 90AE pursued – where no application made to vary “make available” order under UCPR, r 36.16(3A).

EQUITY — Trusts and trustees — Constructive trusts — Common intention – where at time property was acquired wife was bankrupt and made no contribution to the purchase – where no pooling of assets – where wife’s sole contribution homemaking and care of children – no Baumgartner constructive trust.
FAMILY LAW — Property — Marriage — Adjustment of property interests – property adjustment order under FLA s 79 – whether costs of unsuccessful proceedings arising from husband’s business dealings should be included in the net family assets or solely attributed to husband – where proceedings arose out of husband’s business dealings from which the wife received financial benefit over extended period –
where husband and wife physically separated but continue joint financial affairs – where no information available to the Court regarding husband’s assets and liabilities held in country of residence.
Legislation Cited: Conveyancing Act 1919 (NSW), s 37A
Family Law Act 1975 (Cth), ss 79, 79A
Family Law Rules 2004 (Cth)
Uniform Civil Procedure Rules 2005 (NSW),…

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 Nguyen v Corbett (No 4)

Details

AGLC: Nguyen v Corbett (No 4) [2019] NSWSC 712
Case: [2019] NSWSC 712
Decision Date: 19 June 2019

CaseChat Overview and Summary

In the case of Nguyen v Corbett, the Full Court of the Family Court of Australia was tasked with considering an application for property settlement orders under the Family Law Act 1975 (Cth) to replace earlier orders that had been set aside. The primary issue was whether the wife’s contributions during the marriage entitled her to a proprietary interest either by way of a common intention constructive trust or unjust enrichment, or if it was otherwise just and equitable to make further provision for her under section 79 of the FLA. Another significant issue was the effect of a prior court order under section 37A of the Conveyancing Act 1919 (NSW) on the wife's cross-claim, and whether this order could be set aside.

The court considered the applicability of Anshun estoppel and whether the prior order created a security interest that could not be displaced. The court examined whether the prior order was equivalent to an order to charge the property with a liability and if it could be set aside under rule 36.16(3) or 36.15 of the Uniform Civil Procedure Rules 2005 (NSW). The court also deliberated on whether the costs of unsuccessful proceedings arising from the husband's business dealings should be included in the net family assets or solely attributed to the husband, particularly given the wife’s financial benefit from those dealings.

The court concluded that the wife's contributions during the marriage did not entitle her to a proprietary interest through a common intention constructive trust or unjust enrichment, as there was no evidence of pooling of assets or a common intention. Furthermore, the prior court order under the Conveyancing Act could not be set aside because it had effectively created a security interest over the property, which could not be displaced aside from the court’s exercise of its power under section 90AE of the FLA. Consequently, the court found that it was not just and equitable to make further provision for the wife out of the property.

The court ordered that the application for property settlement orders be dismissed.

Orders