Phe and Leng - [2017] FamCA 1040

FAMILY COURT OF AUSTRALIA

PHE & LENG

[2017] FamCA 1040

FAMILY LAW – PROPERTY – FINAL – Application for an adjustment of property interests between the husband and wife – Where the parties were married for six years and have two children, aged 8 and 10 – Where the husband is resident in China and the wife resides in Australia with the children – Where the wife’s assertion that the husband owns a property in China is not established – Where the husband owes loans to his parents and other parties for legal fees – Where the primary asset of the parties is the property in Australia held in the husband’s name – Where the contributions are assessed at 60 per cent in favour of the wife – Where the s 75(2) factors favour the wife due to the care of the children and the liabilities accrued by the husband in respect of his living expenses – Orders made for the wife to receive 80 per cent of the net property pool – Orders made for the property to be sold and the proceeds disbursed accordingly.

Ferraro and Ferraro (1993) FLC 92-335
McLay and McLay (1996) FLC 92-667
Hickey and Hickey (2003) FLC 93-143

Family Law Act 1975 (Cth) ss 75(2), 79(4), 79(9)

APPLICANT:

Ms Phe

RESPONDENT:

Mr Leng

FILE NUMBER:

PAC

5236

2008

DATE DELIVERED:

15 December 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

15 – 19 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

Orders

Both parties are to join in the sale of the property at I Street, Suburb F being the land contained in Folio Identifier …74 (“the property”). The sale is to be at the best price reasonably obtainable and the parties are to do the following to cause the sale and distribution of the sale proceeds:
(a)The parties are to cause the property to be listed for sale by private treaty with an agreed real estate agent and at an agreed sale price.
(b)The parties are to appoint a solicitor to act on the sale of the property and such solicitor is not to be engaged unless he/she agrees, in writing, to ensure that the net sale proceeds of the property are divided between the parties as the orders of this court require.
(c)Upon a sale of the property being completed the parties are to cause the solicitor acting on the sale to pay the proceeds as follows:
(i)In payment of real estate agents commission and contracted expenses;
(ii)In payment of legal costs for acting on the sale;
(iii)In payment of the amount owing to the National Australia Bank;
(iv)In payment to the wife of 45 percent of the proceeds then remaining;
(v)In payment of the balance thereafter to the husband.
(d)If the parties are unable to reach agreement about any aspect of the sale of the property and distribution of the sale proceeds either may apply to…

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.

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Details

AGLC: Phe and Leng [2017] FamCA 1040
Case: [2017] FamCA 1040
Decision Date: 15 December 2017

CaseChat Overview and Summary

This matter concerned the division of property and the resolution of financial disputes between a husband and wife. The court, presided over by Le Poer Trench J, was tasked with determining the terms of the sale of a jointly owned property and the distribution of the net proceeds, as well as addressing various debts and other assets.

The primary legal issues before the court were how the jointly owned property at I Street, Suburb F, should be sold and how the proceeds of that sale should be distributed between the parties. The court also had to determine the allocation of responsibility for certain debts, specifically those owed by the husband, and to clarify the ownership of other assets and superannuation rights. Furthermore, the court needed to establish mechanisms to ensure compliance with its orders, including provisions for default and the appointment of a registrar to execute documents if necessary.

The court ordered that the parties jointly sell the property at the best reasonably obtainable price, with specific directions for listing, agent appointment, and the engagement of a solicitor who would agree in writing to distribute proceeds as ordered. The net proceeds were to be applied first to sale expenses, then to legal costs for the sale, followed by payment of the outstanding amount to the National Australia Bank. Thereafter, 45 percent of the remaining proceeds were to be paid to the wife, and the balance to the husband. The court also made detailed provisions regarding the removal of furniture and personal items from the property by both parties, and allowed the wife to lodge a caveat to protect her interest in the sale proceeds, with the husband restrained from seeking its removal except through court application. The husband was ordered to indemnify the wife against specific listed debts. All other outstanding applications were dismissed.

Orders

Orders of the court

Both parties are to join in the sale of the property at I Street, Suburb F being the land contained in Folio Identifier …74 (“the property”). The sale is to be at the best price reasonably obtainable and the parties are to do the following to cause the sale and distribution of the sale proceeds:

(a) The parties are to cause the property to be listed for sale by private treaty with an agreed real estate agent and at an agreed sale price.

(b) The parties are to appoint a solicitor to act on the sale of the property and such solicitor is not to be engaged unless he/she agrees, in writing, to ensure that the net sale proceeds of the property are divided between the parties as the orders of this court require.

(c) Upon a sale of the property being completed the parties are to cause the solicitor acting on the sale to pay the proceeds as follows:

(i) In payment of real estate agents commission and contracted expenses;

(ii) In payment of legal costs for acting on the sale;

(iii) In payment of the amount owing to the National Australia Bank;

(iv) In payment to the wife of 45 percent of the proceeds then remaining;

(v) In payment of the balance thereafter to the husband.

(d) If the parties are unable to reach agreement about any aspect of the sale of the property and distribution of the sale proceeds either may apply to the court for the appointment of a trustee for sale.

(e) The wife is to remove from the property, no later than seven days prior to the date set for the settlement of the sale of the property, all of her furniture together with all items of furniture, toys, clothing, other items and electrical goods she requires in order to rehouse the children. Once she has removed those items the husband is to remove the balance of the furniture and contents and leave the property in a clean and presentable manner for the settlement date.

(f) The wife may, at her choice, enter (or maintain the caveat she has previously lodged if it is still active) a caveat against the title of the property to protect her interest in the sale proceeds of the property AND should she do so she is to attend the settlement of the sale of the property and present a properly signed and prepared withdrawal of caveat document which she may exchange for the payment of that portion of the sale proceeds she is entitled to pursuant to these orders.

(g) Should the wife lodge/maintain a caveat against the title of the property as permitted by these orders the husband is restrained from taking any action to have same removed other than an application in this court.

The husband is to indemnify the wife and keep her indemnified against any claim for payment of or contribution towards the debts owing by the husband identified in the balance sheet as follows:

(a) The loan from his father for the Suburb F property;

(b) The loans from his father for legal fees and living expenses;

(d) The loan from Mr A;

(e) The loan from Mr J;

(f) The husband’s debt to K Bank;

(g) The husband’s liability to his solicitors for legal fees.

Each of the husband and wife will otherwise retain as their property all assets in their possession or control together with their superannuation rights.

In the event of either party failing or refusing to sign any document required to effect the orders made herein, then the Registrar is appointed under s 106A of the Family Law Act 1975 (Cth) to sign such document in the name of the defaulting party.

Each party has leave to apply to the court for any further order which may be necessary to implement the order herein made including an application for the appointment of a trustee for sale of the property.

All outstanding applications are otherwise dismissed and the court notes the proceeding is now concluded in the court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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