Sun & Yeng (No 4)
[2023] FedCFamC1F 955
•8 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sun & Yeng (No 4) [2023] FedCFamC1F 955
File number SYC 8025 of 2022 Judgment of WILSON J Date of judgment 8 November 2023 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – amendment application Legislation Family Law Act 1975 (Cth) Division Division 1 First Instance Number of paragraphs 9 Date of hearing 8 November 2023 Place Sydney Counsel for the applicant Mr L. Glick KC with Mr J. Mellas Solicitor for the applicant Lander & Rogers Counsel for the first respondent Mr J. Lloyd SC Solicitor for the first respondent Longton Legal Counsel for the second respondent Mr D. Brown KC with Mr D. Edney Solicitor for the second respondent XR Consulting Pty Ltd ORDERS
SYC 8025 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS SUN
Applicant
AND MR YENG
First Respondent
MS HAU
Second Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
8 NOVEMBER 2023
THE COURT ORDERS THAT –
1.Leave is granted to the wife to rely on her further amended defence to the second respondent’s amended points of claim.
2.The further hearing of this proceeding is adjourned to 10:00am 5 December 2023 for final submissions.
3.The parties must send an agreed timetable of when each party is to file and serve their written submissions by no later than 10:00am Monday 13 November 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Sun & Yeng has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
Since this proceeding was initiated, the status of funds applied in the acquisition of two parcels of real estate in Suburb J has been in issue. The proceeding has been on foot at trial for a number of days. On the resumption of the trial today, ostensibly with a view to the trial’s completion this week, the wife has produced a further amended defence on which she seeks leave to rely and in which she pleads that the sum used to settle the purchase of the Suburb J properties was the subject of a gift to the husband and wife by the husband’s mother and the husband’s father.
The prior iteration of pleadings in this proceeding did not contain any such assertion. Mr Brown KC for the second respondent has objected to the late introduction of the assertion of gift. Mr Glick KC has explained that the gift pleading will, if accepted on the evidence, operate at law in such manner as to neutralise and provide a complete answer to the assertions by the second respondent that the provision of AUD $5.8 million is recoupable by her as money had and received.
Squarely, the status of the AUD $5.8 million as a gift or as money had and received is and remains one of the main issues in the proceeding. The precise means by which the evidence has emerged in respect of the AUD $5.8 million has been the subject of immense agitation thus far. On the last day of the trial before its resumption today, counsel for the wife sought leave to issue a subpoena to the Department of Foreign Affairs and Trade for documents in respect of the provision of AUD $5.8 million then said to have been provided by the husband’s parents in support of a particular visa which required them to provide funds in that amount.
The documents apparently were exchanged in the period when this proceeding was between trial dates. I have not yet seen the documents that have been produced but I am informed they go some way to explaining the circumstances surrounding the provision of that amount. The status of the AUD $5.8 million at law is still in a state of evolution. It is premature for me to make any observations about it at this stage, particularly having regard to the fact that the evidence is not closed, and it would be forlorn of me as the trial judge to make any conclusions in respect of competing evidence, particularly while the trial is extant and the evidence is not yet completed, still less have final addresses been heard.
The precise status of the funds as a gift, not having been previously pleaded according to the earlier iterations of the pleadings, emerged on 27 September of this year largely in response by the wife to questions put by counsel for the second respondent, that is to say, the husband’s mother. Up until that point, the evidence about a gift was reposed mostly in litigation in another Court conducted prior to the commencement of the trial of this proceeding. Counsel for the second respondent on several occasions took the wife to the status of the AUD $5.8 million and challenged the wife about the status of those funds with a view to eliciting from the wife a concession that her evidence about the funds being a gift was “complete and utter nonsense.”[1] The wife disagreed.
[1] T207, L18.
In response to a collection of persistent questions about the status of the $5.8 million as a gift, the wife answered consistently that the funds were in fact provided by the husband’s parents as a gift to both husband and wife. The wife was pressed as to whether and if so in what circumstance she informed her legal representatives about the funds having the status of a gift and for the wife’s explanation about the absence of any evidence in the trial in this proceeding in documents prepared by her upon which she relied to demonstrate that the AUD $5.8 million took the form, in fact and in law, as a gift. The cross-examination of the wife was searching, although the wife maintained her evidence to the effect that the provision of AUD $5.8 million to her took the form of a gift.
Counsel for the second respondent has characterised that evidence as indicative of the veracity of the wife and that I should reject her evidence on the point, his construction taking effect that the evidence given by the wife as to the AUD $5.8 million is no more than a verification of her overall unreliability as a witness. Mr Brown KC may very well be right in that construction, but any such finding to that effect must await the end of the trial, and I steadfastly refuse to make any observations at this point in a part-heard trial to the effect as propounded on behalf of the second respondent. To do so would be unbridled appellable error.
A debate emerged as to the significance of the circumstances in which the evidence about the AUD $5.8 million arose and especially in circumstances where it arose out of the cross‑examination of the wife. To my mind, at this stage, that is not as important as is the significance of the evidence that the wife gave, repeatedly, to the effect that the AUD $5.8 million was a gift. Of course, the construction of it by counsel as a gift does not make it a gift in fact and in law. There are very many further indicia that must be demonstrated, whether by direct evidence or by inference, to prove to the requisite standard that the funds were, in fact, provided in such manner as to render them properly characterised as a “gift”.
The task of ascribing that appellation to the evidence about the AUD $5.8 million must await further evidence and final addresses by reference to cases in the law of trust, estate planning and taxation law. At this stage, I am not willing to exclude the evidence about a gift, and despite some very powerful contentions to the contrary advanced by Mr Brown KC, I allow the further amendment upon which the wife wishes to proceed. I grant leave to the wife to rely on the document headed “further amended defence to the second respondent’s amended points of claim,” dated 6 November 2023.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 8 November 2023