Sun & Yeng (No 5) - [2024] FedCFamC1F 702

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)
Sun & Yeng (No 5) [2024] FedCFamC1F 702

File number SYC 8025 of 2022

Judgment of WILSON J

Date of judgment 13 November 2024

Catchwords
FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – claims between husband, wife and husband’s mother – husband’s father not a party to the proceeding – whether adverse inference available from his failure to give evidence.

FAMILY LAW – JURISDICTION – accrued jurisdiction – consideration of husband’s mother’s claim for money had and received and whether that claim arouse out of one indivisible set of circumstances – court’s first duty to determine whether it possesses jurisdiction to determine the matter before it.

FAMILY LAW – JURISDICTION – whether the husband’s mother’s common law claims are justiciable as part of the husband’s and wife’s application for the adjustment of property interests – extensive review of High Court authorities including Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261, Fencott v Muller (1983) 152 CLR 570 and Re Wakim; ex parte McNally (1999) 198 CLR 511.

FAMILY LAW – CONSTITUTIONAL LAW – ss 75, 76 and 77 of the Constitution of the Commonwealth of Australia considered – “matter” considered – “single justiciable controversy” considered.

FAMILY LAW – EQUITY – constructive trust alleged by husband’s mother in respect of funds allegedly misappropriated by her son – husband’s mother authorising her son to deal in funds in her account – Black v S. Freedman & Co (1910) 12 CLR 105 constructive trust asserted.

FAMILY LAW – EQUITY – allegation about the wife’s dishonest receipt of funds misappropriated in breach of trust by the husband and consequent constitution of husband and wife as constructive trustees under the first limb of the rule in Barnes v Addy (1874) LR 8 LR App 244.

FAMILY LAW – REAL PROPERTY – Torrens System
land – indefeasibility of title – whether the registration obtained by fraud – exception to the indefeasibility of title rule – whether established.

FAMILY LAW- ILLEGALITY – recoverability of funds procured in contravention of laws of Country B in respect of transferring funds out of Country B – whether the court should assist the husband’s mother in an allegedly illegal scheme.

FAMILY LAW – PRIVATE INTERNATIONAL LAW – money generated by Country B visa applicants transferred to the holders of authorised quotas for money transfers in Country B – once those funds were fully transferred to and held by the authorised quota holders in Country B, an equivalent amount in Australian dollars was released by a currency transfer company in Australia which then transferred to the visa applicants in Australian dollars the equivalent sum as was held in Country B by the authorised quota holders so as to comply with their investment requirements – such practice being contrary to the Country B Implementation Rules of the Administrative Controls on Individuals; Foreign Exchange promulgated by the State Administration of Foreign Exchange on 5 January 2007 – consequences of non-compliance with those Country B rules.

FAMILY LAW – FRAUD – evidential burden – whether husband’s mother was required to prove her allegations of fraud prior to the wife giving her evidence in the case – Protean (Holdings) Ltd (receivers and managers appointed) v American Home Assurance Co [1985] VR 187 and Clayton Utz v Dale (2015) 47 VR 48 considered.

FAMILY LAW – EVIDENCE – adverse inference open to be drawn by the failure of the husband or by his mother to call the husband’s father to corroborate the version of events concerning the deposit of money in Australia in respect of the husband’s parents’ visa application.

FAMILY LAW – GIFT – wife asserting that the husband’s parents conferred on the wife and the husband a gift of the whole of the sum received by the husband and that no misappropriation took place but rather, that the husband’s parents authorised the husband to deal with funds in the mother’s account as and when he choose.

FAMILY LAW – MONEY HAD AND RECEIVED – a common law claim – whether it was properly part of the court’s accrued jurisdiction – need for proof that the retention of money allegedly had and received was unjust – whether cause of action now subsumed into an unjust enrichment claim in a restitution suit.

Legislation
Constitution of the Commonwealth of Australia Act 1901 ss 75, 76, 77

Bankruptcy Act 1966

Child Support (Assessment) Act 1989

Child Support (Registration and Collection) Act 1988

Court Security Act 2013

Crimes Act 1900

Family Law Act 1975 ss 26, 28, 29, 31, 33, 66E, 75, 79

Family Law Amendment Act 1983

Federal Circuit and Family Court of Australia Act 2021 s 29

Federal Court of Australia Act1976 ss 32, 33

Migration Act 1958

Real Property Act 1900 s 42

Trade Practices Act 1974 ss 52, 86

Cases cited
Ah Yick v Lehmert (1905) 2 CLR 593

Akbar v Gandega (2023) 67 Fam LR 593

Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662

Ashton v Pratt (2015) 88 NSWLR 281

Attorney-General of the Commonwealth v The Queen (1957) 95 CLR 529

Attorney-General v Perry (1792) 92 ER 1169

Attorney-General v Worrall [1895] 1 QBD 99

Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560

Australian Postal Commission v Lutak (1991) 21 NSWLR 584

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559

Bacall & Zagar [2020] FamCA 350

Baltic Shipping Co v Dillon (1993) 176 CLR 344

Barnes v Addy (1874) LR 8 Ch App 244

Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087

Bishop v Bishop (2003) 30 Fam LR 108

Black v S Freedman & Co (1910) 12 CLR 105

Bray v Federal Commissioner of Taxation (1978) 36 FLR 295

Breskvar v Wall (1971) 126 CLR 376

British South Africa Co v Companhia de Moçambique [1893] AC 602

Bunbury v Fuller (1853) 156 ER 47

C & C (Accrued Jurisdiction) (2001) 28 Fam LR 253

Campbell v Kitchen & Sons Ltd (1910) 12 CLR 515

Canaccord Genuity (Australia) Pty Ltd v Allen [2022] VSC 631

Candle & Falkner [2021] FedCFamC1A 102

Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543

Carpenter v Morris [2023] NSWCA 154

Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425

CGU Insurance Limited v Blakeley (2016) 259 CLR 339

Clayton Utz v Dale (2015) 47 VR 48

Cole v The Commonwealth [1962] NSWR 1019

Collector of Imposts (Vic) v Cuming Campbell Investments Pty Ltd (1940) 63 CLR 619

Collector of Imposts (Vic) v Peers (1921) 29 CLR 115

Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529

Commonwealth v Hospital Contribution Fund (2022) 275 CLR 24

Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (2001) 208 CLR 516

Comptroller of Stamps (Vic) v Joe White Maltings Pty Ltd [1956] VLR 253

Corin v Patton (1990) 169 CLR 540

Crampton & Robinson [2013] FamCA 65

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353

Dilosa v Latec Finance Pty Ltd (No 1) (1966) 1 NSWR 255

Divcon (Australia) Pty Ltd v Devine Shipping Pty Ltd [1996] 2 VR 79

DMW v CGW (1982) 151 CLR 491

Ebstaller v Poulos (2014) 87 NSWLR 394

Emerald & Emerald [2023] FedCFamC1F 183

Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498

F Firm v Ruane (2014) 52 Fam LR 230

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 80

Fazil & Fazil [2023] FedCFamC1F 1015

Federal Commissioner of Taxation v McPhail (1968) 117 CLR 111

Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398

Felton v Mulligan (1971) 124 CLR 367

Fencott v Muller (1983) 152 CLR 570

Frazer v Walker [1967] 1 AC 569

Frost v Stevenson (1937) 58 CLR 528

Galea v Galea (1990) 19 NSWLR 263

Gates v Gates (1976) 1 Fam LR 11

Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155

GLJ v The Trustees of the Roman Catholic Church of the Diocese of Lismore (2023) 97 ALJR 857

Gollan v Nugent (1988) 166 CLR 18

Gordon v Chief Commissioner of Metropolitan Police [1910] 2KB 1080

Harris v Caladine (1991) 172 CLR 84

Hazeldell Ltd v The Commonwealth (1924) 34 CLR 442

Henry v Henry (1996) 185 CLR 571

Hill v Zuda Pty Ltd (2022) 275 CLR 24

Holloway v McFeeters (1956) 94 CLR 470

Honeysett v R (2014) 253 CLR 122

In re the Judiciary Act 1903-1920 and In re the Navigation Act 1912-1929 (1921) 29 CLR 257

In the Marriage of Currie (1976) 2 Fam LR 11

In the Marriage of Gould (1993) 77 Fam LR 156

In the Marriage of McKay (1984) 9 Fam LR 850

In the Marriage of Prince (1984) 9 Fam LR 481

In the Marriage of Saba (1984) 9 Fam LR 780

In the Marriage of Smith (No 3) (1986) 10 Fam LR 769

In the Marriage of Warby (2001) 28 Fam LR 443

Inland Revenue Commissioners v Church Commissioners for England [1977] AC 329

Irons v Smallpiece (1819) 106 ER 467

Jabour v Jabour (2019) 59 FamLR 475

Jess & Jess (No 4) [2023] FedCFamC1A 189

Jess & Jess (No 7) [2023] FedCFamC1F 291

Jess v Jess [2024] HCASL 47

Jingalong Pty Ltd v Todd [2015] NSWCA 7

John Alexander’s Clubs Pty Ltd v White City Tennis Club (2010) 241 CLR 1

Jones v Dunkel (1959) 101 CLR 298

Kable v Director of Public Prosecutions (1996) 189 CLR 51

Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381

Kennon v Spry (2008) 238 CLR 266

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Kwon & Reece [2022] FedCFamC1F 203

Lang v R (2023) 97 ALJR 758

Leary v Federal Commissioner of Taxation (1980) 32 ALR 221

Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369

Lin v Yew (2020) 62 Fam LR 244

Lorenzo v Carey (1921) 29 CLR 243

Loxton v Moir (1914) 18 CLR 360

Macrow v Collector of Imposts (Vic) [1921] VLR 23

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

McHale v Watson (1964) 111 CLR 384

Miller v Haweis (1907) 5 CLR 89

Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 471

Moses v Macferlan (1760) 97 ER 676

National Commercial Banking Corporation of Australia v Batty (1986) 160 CLR 251

National Trustees Executors and Agency Co of Australasia Ltd v Federal Commissioner of Taxation (1954) 91 CLR 540

Nelson v Nelson (1995) 184 CLR 538

Noll v Noll (2013) 48 Fam LR 635

O’Donnell v Reichard [1975] VR 916

Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) (2000) 99 FCR 554

Old UGC Inc v Industrial Relations Commissioner of New South Wales (2006) 225 CLR 274

Omacini v Omacini (2005) 33 Fam LR 134

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369

Pavey & Matthew Pty Ltd v Paul (1987) 162 CLR 221

Paviello & Paviello [2022] FedCFamC1F 592

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457

Pinnel’s Case (1572) 77 ER 237

Protean (Holdings) Ltd (receivers and managers appointed) v American Home Assurance Co [1985] VR 187

Public Service Association of South Australia v IndustrialRelations Commission of South Australia (2012) 249 CLR 398

QYFM v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419

R v Bevan; Ex Parte Elia and Gordon (1942) 66 CLR 452

R v Gray; ex parte Marsh (1985) 157 CLR 351

Re Juliana (1822) 165 ER 1562

R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254

Rannell v IRC [1964] AC 173

Re Cochrane and the Finance Act 1894 [1906] 2 IR 200,

Re Gear [1964] Qd R 528

Re Hope; ex parte Carter (1985) 59 ALR 609

Re Macks; ex parte Saint (2000) 204 CLR 158

Re Wakim; ex parte McNally (1999) 198 CLR 511

Rizeq v The State of Western Australia (2017) 262 CLR 1

Robins v Incentive Dynamics Pty Ltd (1999) 91 FCR 423

Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516

Russell v Wilson (1923) 33 CLR 538

Schultz v Corwill Properties Pty Ltd [1969] 2 NSWR 576

South Australia v Totani (2010) 242 CLR 1

South Australia v Victoria (1911) 12 CLR 667

Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261

Stanford v Stanford (2012) 247 CLR 108

Taylor v Ellis [1956] VLR 457

Trevi & Trevi [2018] FamCAFC 173

Troy v Wrigglesworth (1919) 26 CLR 305

Tullo & Tullo [2016] FamCA 716

Valceski v Valceski (2007) 36 Fam LR 620

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

Vroon BV v Foster's Brewing Group Pty Ltd [1994] 2 VR 32

Woodcock v Woodcock (No 2) (2022) 65 Fam LR 333

Wright v Gibbons (1949) 78 CLR 313

Sun & Yeng (No 2) [2023] FedCFamC1F 854

Sun & Yeng (No 3) [2023] FedCFamC1F 944

Sun & Yeng (No 4) [2023] FedCFamC1F 955

Sun & Yeng [2023] [2023] FedCFamC1F 565

Yen v Yen (2010) 42 Fam LR 691

Zhang v Zemin (2010) 79 NSWLR 513

Division Division 1 First Instance

Number of paragraphs 506

Date of last submission 19 July 2024

Dates of hearing 25, 26, 27 and 28 September, 3 and 4 October, 8 November and 8 December 2023.

Place Sydney

Counsel for the applicant Mr L Glick KC (all dates) with Mr J Mellas (25 September, 4 October and 8 November 2023)

Solicitors for the applicant Lander & Rogers

Counsel for the first respondent Mr J Lloyd SC (all dates) with Mr G Stapleton (25 September, 8 November and 5 December 2023)

Solicitors for the first respondent Longton Legal

Counsel for the second respondent Mr D Brown KC (all dates) with Mr D Edney (25 September, 8 November and 5 December 2023)

Solicitors for the second respondent XR Consulting
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

ORDERS MADE BY

WILSON J

DATE OF ORDER

13 NOVEMBER 2024

THE COURT ORDERS THAT –
1.Within 60 days of the pronouncement of these orders, the husband must do all things and execute all documents as may be required to be done and executed (at his expense) so as to transfer the husband’s right, title and interest as joint registered proprietor of the land and improvements situated at and known as KK Street, Suburb LL in the State of New South Wales being the land more particularly described in certificate of title folio reference ... from the joint names of the husband and wife into the sole name of the wife as to constitute the wife thereafter as the sole registered proprietor of that parcel of land free from all and any encumbrance.
2.Within 60 days of the pronouncement of these orders, the husband must do all things and execute all documents as may be required to be done and executed (at his expense) so as to transfer the husband’s right, title and interest as joint registered proprietor of the land and improvements situated at and known as Unit 1 K Street, Suburb J in the State of New South Wales being the land more particularly described in certificate of title folio reference ... from the joint names of the husband and wife into the sole name of the wife so as to constitute the wife thereafter as the sole registered proprietor of that parcel of land free from all and any encumbrance.
3.Within 60 days of the pronouncement of these orders, the husband must do all things and execute all documents as may be required to be done and executed at his expense so as to transfer the husband’s right, title and interest as joint registered proprietor of the land and improvements situated at and known as Unit 2 K Street, Suburb J in the State of New South Wales being the land more particularly described in certificate of title folio reference ... from the joint names of the husband and wife into the sole name of the wife so as to constitute the wife thereafter as the sole registered proprietor of that parcel of land free from all and any encumbrance.
4.On or before 13 February 2025, the wife must pay into an account as nominated by the husband, the amount of $446,725.
5.If the wife is unable to pay the said sum of $446,725 without realising real property by 13 February 2025, then the wife has until 13 May 2025 or such later period as may be agreed between the husband and wife to pay the sum of $446,725 to the husband.
6.Within 14 days of the pronouncement of these orders, the parties must do all things and execute all documents as may be required to be done and executed to procure the transfer into an account nominated by the husband the sum of $374,169 presently held in trust by Longton Legal.
7.Within 60 days of the date of the pronouncement of these orders, the wife must sign all documents and do such thing as may be required to give effect to her relinquishment of all and any interest she may have had –
(a)in the husband’s 34% shareholding in JJ Ltd;
(b)in the husband’s superannuation entitlements;
(c)in the Motor Vehicle 1;
(d)in real property situated at and known as V Street, Suburb W, City SS, Region Z, Country B;
(e)in real property situated at and known as D Street, Suburb E, City F, Region G, Country B (“City F property”);
(f)in real property situated at and known as AA Street, Suburb BB, City CC, Region Z, Country B;
(g)in the husband’s interest in real property situated at and known as units at DD Street, Suburb EE, City H, Region Z, Country B;
(h)in CBA Smart Access Account (#...40);
(i)in CBA GoalSaver1 Account (#...89);
(j)in CBA GoalSaver 2 Account (#...97);
(k)in CBA NetBank Saver Account (#...42);
(l)in CBA Smart Access Account (#...96);
(m)in Westpac Choice Account (#...44);
(n)in Westpac eSaver Account (#...15);
(o)in CBA Account (#...00);
(p)in ANZ Access Advantage Account (#...84); and
(q)in ANZ Online Saver Account (#...28).

8.The husband shall retain –
(a)the funds held by Longton Legal ($374,169);
(b)V Street, Suburb W, City SS, Region Z, Country B;
(c)D Street, Suburb E, City F, Region G, Country B (“City F property”);
(d)AA Street, Suburb BB, City CC, Region Z, Country B;
(e)Units at DD Street, Suburb EE, City H, Region Z, Country B;
(f)Motor Vehicle 1;
(g)CBA Smart Access Account (#...40);
(h)CBA GoalSaver1 Account (#...89);
(i)CBA GoalSaver 2 Account (#...97);
(j)CBA NetBank Saver Account (#...42);
(k)CBA Smart Access Account (#...96);
(l)Westpac Choice Account (#...44);
(m)Westpac eSaver Account (#...15);
(n)CBA Account (#...00);
(o)ANZ Access Advantage Account (#...84);
(p)ANZ Online Saver Account (#...28);
(q)CBA “Mr Yeng” GoalSaver 1 (#...46);
(r)CBA Smart Access Account (#...36);
(s)CBA Net Saver Account (#...77);
(t)GG Bank (#...13);
(u)HH Bank (#...16; EFTPOS Card number #...71); and
(v)NAB account (#...89).

9.I dismiss the wife’s application for spousal maintenance and child maintenance.
10.I will hear parties on the question of costs and so, I order –
(a)any party seeking costs to apply by filing and serving an application in a proceeding by noon on 12 December 2024 together with all affidavit material in support of the costs application;
(b)any opposition to any such application for costs must be brought by the filing and service of that party's response to an application in a proceeding, such response to be filed and served by noon on 20 January 2025;
(c)any party's submissions on costs must be filed and served by noon on 3 February 2025;
(d)if required by the parties, I shall hear any viva voce submissions on costs between 1.00pm and 2.00pm on 6 March 2025; and
(e)if not so required by any party to hear debate about costs, I shall determine the question of costs on the papers.

11.These orders take effect pursuant to s 81 of the Family Law Act as final orders intended to finally determine the property interests of the parties in this proceeding.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Sun & Yeng has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TABLE OF CONTENTS

FORMAL PARTICULARS

[4]

THE SECOND RESPONDENT’S CLAIMS

[8]

THE CIRCUMSTANCES IN WHICH FUNDS WERE RAISED

[27]

THE WIFE’S EVIDENCE

[64]

THE HUSBAND’S EVIDENCE

[70]

THE HUSBAND’S MOTHER’S EVIDENCE

[95]

THE ACCRUED JURISDICTION OF THIS COURT

[104]

CONSIDERATION OF ACCRUED JURISDICTION IN THE FCFCOA

[132]

ACCRUED JURISDICTION IN WHAT WAS THE FAMILY COURT

[150]

FULL COURT AUTHORITIES

[161]

OTHER AUTHORITIES ON ACCRUED JURISDICTION IN FAMILY LAW LITIGATION

[172]

FURTHER SUBMISSIONS ON ACCRUED JURISDICTION IN THIS CASE

[177]

CONCLUSIONS ABOUT ACCRUED JURISDICTION

[184]

THE TRIAL RESUMES

[186]

THE ASSETS AND LIABILITIES OF THE PARTIES TO THE MARRIAGE

[192]

THE CITY H APARTMENTS AS BALANCE SHEET ITEM EIGHT

[197]

HUSBAND’S SHAREHOLDING IN JJ LTD AS BALANCE SHEET ITEM NINE

[203]

THE FORMER MATRIMONIAL HOME AS BALANCE SHEET ITEM ONE

[204]

ILLEGAL FUNDS – A GIFT, A LOAN OR SOMETHING ELSE?

[214]

OTHER CONTESTABLE ITEMS ON THE BALANCE SHEET

[220]

WITNESS CREDIBILITY

[231]

LEGAL ISSUES ABOUT GIFTS

[249]

FURTHER SUBMISSIONS ON GIFTS

[252]

COUNTRY B LAW ABOUT MONEY TRANSFERS

[257]

THE FORMER MATRIMONIAL HOME – THE PROPER TREATMENT OF ITS ACQUISITION

[274]

THE SUBURB J APARTMENTS – HOW TO TREAT THOSE ACQUISITIONS

[308]

THE MONEY HAD AND RECEIVED CLAIM

[331]

FURTHER SUBMISSIONS ON THE HUSBAND’S PARENTS’ DECISION TO NOT MIGRATE TO AUSTRALIA

[380]

FINDINGS IN RESPECT OF THE SUBURB J APARTMENTS

[385]

ADD BACKS

[419]

PROPERTIES IN COUNTRY B AND THE 34% SHAREHOLDING

[422]

THE JUSTICE AND EQUITY OF A S 79 ORDER

[426]

CONTRIBUTIONS

[429]

SPOUSAL AND CHILD MAINTENANCE

[461]

THE BALANCE SHEET AS FOUND

[467]

CONSIDERATION OF THE ORDERS SOUGHT BY THE HUSBAND

[468]

ORDERS PROPOSED BY THE WIFE

[484]

Transfer

[485]

Retention of assets

[485]

Payment

[485]

Indemnities

[485]

Miscellaneous

[485]

Maintenance

[485]

Restraint

[485]

Costs

[485]

WILSON J

But for the complexity of the applicant wife’s former mother-in-law’s claims in this s 79 application for the alteration of property interests, the claims as between husband and wife in this proceeding in the Major Complex Financial Proceedings List were tolerably straightforward.
The mainstay of the trial related to the sum of AUD $5,000,000 the former mother-in-law asserted did not form part of the pool of assets that fell for division. She alleged that her son, the husband, fraudulently misappropriated that sum, applying at least part of the fraudulently misappropriated sum towards the acquisition of two parcels of real property in the state of New South Wales. Throughout this litigation the wife maintained that she was wholly ignorant of any impropriety involving her former husband.
As these reasons reveal, in my judgment the husband and wife used very large sums of money the second respondent left in Australia (of which the wife was unawares) but that neither the husband nor the wife misappropriated the money nor borrowed it. I have found that the second respondent conferred power upon the husband to apply the relevant money in the way he did with the consequence that she lost any she might have claimed to that money. So far as the division of assets as between husband and wife were concerned, in my view a 50/50 division of assets is just and equitable based on a pool valued at 17,866,550.00.
FORMAL PARTICULARS
The wife and the husband were born in Country B. Each possesses varying degrees of competence in the English language. The husband, the wife and the husband’s mother each gave evidence through an interpreter although the husband revealed himself as being proficient in English after volunteering a substantial part of his evidence in English throughout the trial.
The husband and wife were married for 20 years or thereabouts. They have two children (both teenagers) who live with the wife in Country B. The husband also lives in Country B. The wife and the husband are Australian citizens. Mr Glick KC opened this case on the basis that the domicile of the husband and wife was uncertain.[1] Applying the private international law rule to determine a person’s domicile, namely, the place of a person’s permanent abode, for the husband it was Country B. It was common ground that the husband has not seen the children for a considerable time.
[1] T 31 L 33.
The balance sheet was largely agreed. The husband and wife identified real property in Country B, described in this litigation as the City F property and the City H apartments. Their assets included the former matrimonial home at KK Street, Suburb LL in the state of New South Wales. Some items on the balance sheet were not agreed by reason of the second respondent’s contentions. Yet it was agreed that consonant with the High Court’s decision in Stanford v Stanford[2] I was required to determine the parties’ existing legal and equitable interests in property and that the second respondent asserted an equitable interest in property owned by the husband and wife.
[2] (2012) 247 CLR 108.
The trial of this proceeding was consumed for the most part with two issues, namely the second respondent’s claims to the $5,000,000 she said the husband and wife owed her as well as contributions as between the husband and the wife. Logically, the second respondent’s claims in the proceedings must be addressed ahead of the issue of the spouse parties’ contributions.
THE SECOND RESPONDENT’S CLAIMS
Before addressing the evidence on this issue in detail, it is first necessary to set the evolution of the second respondent’s claim in context, the issue having been first raised in litigation in the Supreme Court of New South Wales, later cross-vested to this court
In her amended statement of claim filed in the Supreme Court of New South Wales pursuant to leave granted on 13 July 2022, the husband’s mother sued her son (the respondent before me) and the wife (the applicant before me) for declaratory relief asserting that the husband and the wife held two parcels of real property at Suburb J on trust for the husband’s mother. The pleadings in support of that plea for declaratory relief asserted (in précis form) as follows –
(a)in February 2013 the husband’s mother was told that in order to obtain a significant investor visa she needed to invest AUD $5m on certain terms;
(b)while assisting his mother to set up the necessary accounts in Australia so as to give effect to the deposit of funds in accordance with the significant investor visa, on in early 2013 the husband opened Commonwealth Bank account #...69 and Commonwealth Bank account #...77 and the husband lodged an authority to operate both accounts naming the husband as an authorised signatory to both accounts;
(c)in early 2013 the husband’s mother deposited approximately AUD $4,900,000 into Commonwealth Bank account #...69;
(d)by late 2013 funds standing to the credit of the husband’s mother in the two Commonwealth Bank accounts identified above totalled AUD $5,038,615.87;
(e)on the instructions of the husband’s mother, the husband transferred AUD $5,000,000 to the New South Wales government and in late November 2013 she acquired bonds in an equivalent sum;
(f)the bonds matured in early January 2018 generating interest in the period between late 2013 to early 2018 of $685,518.90;
(g)the husband owed his mother fiduciary duties not to use his authority for his own gain;
(h)in late 2016 the husband and wife entered into a contract to purchase the whole of the land known and described as unit 1 K Street, Suburb J in the State of New South Wales being the whole of the land referred to in certificate of title folio identifier ... (“unit 1”);
(i)the same day the husband and wife entered into a contract to purchase the whole of the land known and described as unit 2 K Street, Suburb J in the State of New South Wales being the whole of the land referred to in certificate of title folio identifier ... (“unit 2”);
(j)in late 2019 the husband used his ability to transact on his mother’s two bank accounts so as to misappropriate the sum of AUD $5,851,860;
(k)the misappropriated sum of AUD $5,851,860 was deposited into an account in the joint names of the husband and the wife;
(l)in late 2019 the husband and wife completed their purchase of Unit 1 and Unit 2 by paying $1,206,030 and $1,226,030 respectively from funds in their joint account into which the allegedly misappropriated sum of AUD $5,851,860 had earlier been deposited;
(m)legal title to unit 1 and to unit 2 is held by the husband and wife as joint tenants;
(n)the husband and wife have let the units and have not remitted rent received to the husband’s mother;
(o)by reason of the husband’s alleged misappropriation of his mother’s funds he is taken to be a constructive trustee of those funds;
(p)the wife as the agent of the husband is taken to have assisted in the husband’s conduct of misappropriating the husband’s mother’s funds and to have contributed to the purchase of the units;
(q)the wife holds her interest in the units on trust for the husband’s mother;
(r)the husband and wife received the benefit of the misappropriated funds as volunteers and have been thereby enriched; and
(s)it would be unjust for the husband and wife to retain that enrichment and so the husband and wife are liable by way of restitution to return to the husband’s mother the amount by which the husband and wife have been so enriched.
The wife relied on her amended defence to the husband’s mother’s amended statement of claim asserting indefeasibility of title as a registered owner of the units, contending that she holds her interest in the units absolutely, free from the claims advanced by the husband’s mother. The wife also contended that the funds allegedly described as being misappropriated funds were in fact a gift to the husband and wife, the donor of the gift being the husband’s mother.
The husband’s mother lodged a caveat #...20 asserting a beneficial interest in a trust in respect of unit 1 and unit 2.
The wife, the husband’s mother and the husband filed extensive affidavit material in the proceeding in the Supreme Court of New South Wales. That proceeding was transferred to this court and then to Division 1 of this court for inclusion in the Major Complex Financial Proceedings List by order of Deputy Registrar Magee on 24 November 2022 with the proceeding entered in my docket.
In this court the husband’s mother pleaded her case under the rubric of relief capable of being granted under the Family Law Act, whether statutory or in the exclusive equitable jurisdiction of this court. I struck out one pleading[3] and ruled on the last iteration of her pleading that the relief sought on a restitutionary basis was actionable.[4]
[3] Sun & Yeng [2023] FedCFamC1F 565.
[4] Sun & Yeng (No 4) [2023] FedCFamC1F 955.
At trial the husband’s mother advanced the contention that the sum of AUD $5.8m was a gift or was money had and received, each being a live issue on which I was required to rule. In the latest iteration of her amended points of claim filed on 7 September 2023 but amended pursuant to leave granted by me on 7 July 2023, the husband’s mother made the following changes to her pleading –
(a)all references to the City F property (as defined) and all references to the City F agreement (as defined) were deleted;
(b)all references to the City H properties (as defined) and all references to the City H agreement (as defined) were deleted;
(c)the contention that in pursuance of the City F agreement the wife held the legal title to the City F property for the benefit of the husband’s parents was deleted;
(d)the contention that the husband held the legal title to the City H properties for the benefit of the husband’s parents by operation of the City H agreement was deleted;
(e)the sum of AUD $5,851,860 was defined as “the misappropriated funds”;
(f)a new paragraph 21A was introduced imputing knowledge of the fraudulent misappropriation of the misappropriated funds to the husband by reason of the fact that he actually performed the misappropriation;
(g)a new paragraph 21B was introduced by which the husband’s mother asserted that the misappropriated funds were impressed with a constructive trust in favour of the husband’s mother pursuant to the reasoning in Black v S Freedman & Co;[5]
(h)a new paragraph 22A was introduced by which the husband’s mother contended that the use of the misappropriated funds to fund the purchase of the two Suburb J properties was not authorised by the husband’s mother nor was it within the scope of any authority conferred upon the husband by his mother, that it enabled the husband and wife to acquire the two Suburb J Properties, it was in furtherance of a breach of the fiduciary duties alleged in the husband’s capacity as his mother’s agent and it amounted to a fraudulent breach of the constructive trust alleged;
(i)the pleadings about the husband’s and wife’s proprietary liability were deleted;
(j)a new allegation was introduced about the wife constituting the husband as the wife’s agent with respect to the wife’s financial affairs including her acquisition of the Suburb J properties, that the husband’s wrongful conduct in fraudulently misappropriating the misappropriated funds was carried out by the husband in the course and scope of the husband’s agency of the wife with the consequence that the husband’s wrongful conduct was taken to be also the wife’s wrongful conduct and the wife was imputed with the knowledge held by the husband of the husband’s fraudulent misappropriation of the misappropriated funds;
(k)a new claim in paragraph 51 was introduced that the wife is to be taken as being a dishonest assistant in the husband’s breach of duties, or the wife is a knowing recipient of the misappropriated funds as funds fraudulently misappropriated from the husband’s mother with the consequence that the wife is liable to account to the husband’s mother for the misappropriated funds in accordance with the rule in Barnes v Addy;[6]
(l)introduced an alternative restitutionary claim not dependent upon agency; and
(m)introduced extensive new prayers for relief.
[5] (1910) 12 CLR 105.
[6] (1874) LR 8 Ch App 244.
The wife denied most of the allegations made against her by her former mother-in-law.
On 8 November 2023, during the running of the trial of this proceeding, the wife obtained leave to further amend her defence to the second respondent’s amended points of claim. Several important alterations were made by the wife to the position she had adopted to that point. Specifically –
(a)the wife changed her refusal to admit to paragraph 14 of the husband’s mother’s assertions that the husband undertook to assist his mother to set up bank accounts in Australia in order to receive funds transferred from Country B;
(b)the wife admitted that allegation saying further that –
(i)the request referred to in paragraph 14 of the husband’s mother’s pleading was made by both the husband’s mother and by the husband’s father;
(ii)the funds referred to in paragraph 14 were beneficially owned by both the husband’s mother and father;
(iii)funds were transferred by the husband’s father to the husband’s mother;
(iv)the husband’s father, the husband’s mother and the husband agreed that those funds would be transferred out of Country B and into Australian bank accounts;
(v)once the funds were transferred to an Australian bank account those funds would be available to the husband’s father and mother if they decided to migrate to Australia or those funds would take the form of gifts the donees of which gifts were the husband and wife;
(vi)the husband would arrange for the opening of a bank account in the name of the husband’s mother with a bank in Sydney;
(vii)a foreign exchange transfer entity in Sydney, would identify bank accounts of Country B nationals into whose accounts the funds would be paid;
(viii)once those Country B nationals acknowledged receipt of the funds, the foreign exchange entity would pay into Australian bank accounts opened in the name of the husband’s mother an amount representing the Country B funds converted into Australian dollars based on an agreed exchange rate; and
(ix)the wife asserted that such a scheme was unlawful according to the laws of Country B and the wife gave particulars of the illegality alleged.
The particulars of illegality identified three ways in respect of which the wife said the pleaded scheme was unlawful. The first involved the contention that the husband’s mother paid into the accounts of 11 identified Country B nationals a total sum of Country B currency 31,490,600 and she received in exchange AUD $4,850,000 that was deposited into a bank account in the name of the husband’s mother. The second aspect of the illegality pleaded by the wife was that the husband’s mother did not submit certificates and supporting documentation to the relevant authorities in Country B in relation to the transactions involving the 11 Country B nationals. Third, the payments made by the husband’s mother were contrary to the Implementation Rules of the Administrative Control on Individual’s Foreign Exchange promulgated by the State Administration of Foreign Exchange on 5 January 2007.
The wife pleaded that the husband’s acts in opening the two Commonwealth Bank accounts and in lodging the authority for him to operate his mother’s two accounts were undertaken in pursuance of the illegal scheme addressed in paragraph 14 of the wife’s amended defence.
As new pleadings, in paragraph 20 of her defence the wife alleged that she admitted the husband’s drawing of AUD $5,851,860 from the husband’s mother’s bank accounts but denied that in so doing the husband acted as the wife’s agent.
The wife pressed her contention that between early 2014 and late 2019 the husband’s mother and father gave the husband and wife funds in the bank accounts of the husband’s mother.
The wife relied on s 42 of the Real Property Act 1900 (NSW) to contend that the husband holds his interest in the Suburb J properties absolutely and free of the husband’s mother’s claims on principles of indefeasibility of title.
Paragraph 66A of the wife’s defence introduced the notion that this court should refuse the relief the husband’s mother sought. Although not expressly stated, it seemed the wife relied on equitable principles that this court should not lend its aid to a person (the husband’s mother) who participated in an unlawful scheme.

The precise pleading was as follows –
“The claims now made by (the husband’s mother) for money had and received requires this Honourable Court to assist (the husband’s mother) to retain the benefits derived by her from her unlawful conduct”.
Alternatively, the wife advanced a contention in paragraph 66B that the court should find that the husband is solely responsible to pay his mother any money found to be payable to the husband’s mother by reason of the unlawful conduct engaged in by the husband.
The husband’s mother set up a collection of other contentions. They were that –
(a)her son (the husband) had fraudulently misappropriated over AUD $5m from her;
(b)those funds had been applied by the husband and wife towards the acquisition of the two Suburb J properties;
(c)the husband acted in breach of the fiduciary duties he owed his mother when misappropriating his mother’s money;
(d)the Suburb J properties, having been acquired through the misappropriation of funds, were held on a constructive trust in favour of the husband’s mother; and
(e)registration of the Suburb J properties having been obtained by fraud, the exception to the indefeasibility of title principle was established.
The wife set up various contentions in answer to the claims made by her former mother-in-law. They included –
(a)the wife was not the husband’s agent in any of the unlawful conduct committed by the husband;
(b)the husband’s mother acquired the funds misappropriated by reason of illegal conduct contrary to the laws of Country B;
(c)the husband’s mother gave the funds now called the misappropriated funds to the husband and wife as a gift; and
(d)the husband and wife’s title to the two Suburb J properties is indefeasible unless the exception to indefeasibility is made out.
THE CIRCUMSTANCES IN WHICH FUNDS WERE RAISED
Bearing in mind the wife’s initial contention that the funds ultimately misappropriated by the husband were themselves raised illegally, the logical starting point in the analysis of the husband’s mother’s case is the circumstances in which the funds were raised in Country B and then transferred to Australia where those funds were deposited into the husband’s mother’s two Australian bank accounts.
Prior to 2001, the husband’s parents’ marriage was intact, they were living in Country B and they operated a successful commercial business. The husband and wife had married in 2001 and lived between Australia and Country B. The husband’s parents had expressed an interest in exploring the concept of migrating to Australia in order to live in Australia.
Pausing at that juncture, the persons capable of giving evidence about the circumstances surrounding the husband’s parents’ intended migration to Australia were the husband, the wife, the husband’s mother and the husband’s father, together with any migration agent retained by any one of them. In this proceeding the husband’s father did not give evidence. That may have been by reason of the fact that the husband’s parents’ marriage had collapsed although no direct evidence about the husband’s father’s failure to give evidence was adduced. In the early phases of the trial, no party raised the contention that an adverse inference should be drawn against the husband’s mother by reason of the fact that the husband’s father did not give evidence on the basis that any such evidence would not have assisted the husband’s mother.
In any event, it was the wife – not the husband’s mother – who alleged in paragraph 14 of the wife’s further amended defence that the funds transferred from Country B were not beneficially owned by the husband’s mother but rather they were beneficially owned by the husband’s father and that the husband’s father transferred those funds to the husband’s mother in pursuance of the scheme recorded in paragraph 14 of the wife’s further amended defence. On that analysis, it was part of the wife’s case (but not part of the husband’s mother’s case) to prove that funds were transferred by the husband’s father to the husband’s mother for subsequent transfer into one or more accounts in Australia and that once those funds were in fact transferred to an Australian bank account, the funds would be available to the husband’s mother and father jointly if they decided to migrate to Australia or those funds would be available to be given as a gift to the husband and wife.
The husband’s mother did not assert that the husband’s father was privy to any arrangement to the effect that the funds, once transferred from Country B to Australia, would be available to the husband’s parents or would be available to be applied as a gift to the husband and wife. That assertion emanated from the wife. The husband’s mother denied the existence of any arrangement concerning a gift. So did the husband. The husband’s father was not called to give evidence.
Ordinarily, the unexplained absence of a witness who might be expected to give evidence in support of one party may lead to a submission that an adverse inference arises to the effect that the evidence of the absent witness would not have assisted that party’s case.[7] Yet no party in this proceeding put forward a submission about any such adverse inference arising in reference to the absence of the husband’s father. Instead, the husband’s mother preferred to advance her case on the basis of money had and received which did not involve adducing evidence from the husband’s father. This was a hard swearing case where the evidence about the allegedly misappropriated funds was fully and squarely contradicted. I was required to examine the evidence in its totality to determine whose version of events I accepted.
[7] O’Donnell v Reichard [1975] VR 916.
The chronological sequence of events relevant to the deposit of funds into the two Commonwealth Bank accounts commenced slightly earlier than February 2013. Before going to the exact detail of it, it is relevant to observe that on the behalf of the wife Mr Glick KC submitted that a court is not required to accept evidence even it if is uncontradicted, where such evidence is improbable or vague. Mr Glick KC cited the decision of the High Court in GLJ v The Trustees of the Roman Catholic Church of the Diocese of Lismore[8] in support of his contention that even if uncontradicted, evidence that is vague or internally inconsistent or otherwise unconvincing, may be rejected by a trial judge. Where evidence is of that character, Mr Glick KC submitted that the trial judge need not accept it, calling in aid the decisions of Re Hope; ex parte Carter,[9] Cole v Commonwealth,[10] Taylor v Ellis[11] and Re Gear.[12]
[8] (2023) 97 ALJR 857.
[9] [1985] 59 ALR 609.
[10] [1962] NSWR 1019.
[11] [1956] VLR 457.
[12] [1964] Qd R 528.
Mr Glick KC contended that in respect of the discussions between the husband and his mother about the AUD $5m the wife was not in a position to contradict that evidence. However, he contended that he was permitted (as a matter of evidence) and was able (as a matter of fact) to point to objective circumstances that enabled the court to construe the evidence on point as given by the husband and his mother for being contrived and inconsistent with objective circumstances with the consequence that the evidence of the husband and his mother on the subject of AUD $5m is to be rejected. Mr Glick KC submitted that when one examined the accumulation of circumstances (as opposed to examining one or more integers in isolation) then it became readily apparent that the husband’s version of events and his mother’s version of the same events should be rejected.
On behalf of the husband’s mother, during the course of the trial Mr Brown KC submitted that it was largely irrelevant about how funds were raised that came to be transferred from Country B then were deposited in the two Commonwealth Bank accounts in Australia. That was for the simple reason (so he submitted) that the funds in excess of AUD $5m were deposited into an account in the sole name of the husband’s mother and for all intents and purposes thereafter the legal and beneficial interest in those funds was held by the husband’s mother. That contention stood at odds with the wife’s contention that the husband’s father, and not solely the husband’s mother, beneficially owned the funds which were transferred from Country B into the two Commonwealth Bank accounts.
Aside from the question of the true beneficial owner of the funds that emanated in Country B and which were deposited into the two Commonwealth Bank accounts, in opening it was put on behalf of the wife that the process utilised to transfer the funds from Country B was illegal for being contrary to Country B laws. Expert evidence was adduced on point.
On behalf of the wife, Mr Glick KC opened the wife’s case[13] stating that money came into the Commonwealth Bank accounts in the name of the mother and “how the money got there will be explored”.
[13] Transcript 26 September 2023 T 31 L 7.
The wife cast her case on the basis that in early February 2013 the husband’s mother spoke no English, that she did not live in Australia and that the husband’s mother authorised the husband to operate an Australian bank account. At the time, the husband’s parents learned that a significant investor visa was required in order for the husband’s parents to migrate to Australia and that pursuant to such a visa they were required to commit to investing AUD $5m in prescribed Australian investments. In the State of New South Wales, one authorised investment was the $5m treasury bond called the “Waratah bond” issued by the government of the State of New South Wales. Mr Glick KC opened on the basis that in November 2013 the husband’s father and mother obtained their significant investment visa. They also obtained the Waratah bond in their joint names, it being for four years’ duration commencing from early 2013 and maturing in early 2018.
The events narrated thus far addressed the limited factual circumstances of the derivation of the funds that were transferred into the two Commonwealth accounts.
In opening, Mr Glick KC addressed aspects of the joint ownership of the funds that were applied in the acquisition of the Waratah bond. He submitted that the husband’s father was the main visa applicant, the husband’s mother was the spouse applicant and that the money obtained in the acquisition of the Waratah bond was money owned jointly by the husband’s parents. When the Waratah bond matured, the husband’s parents’ marriage was still intact so they were jointly entitled to payment of the funds. Mr Glick KC said that the husband’s father should have been joined as a party to this litigation, consonant with principles espoused by the High Court in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd.[14] In the early phase of his opening, on behalf of the wife Mr Glick KC submitted that the husband’s father was the main visa applicant and so cross-examination would be directed to the appropriate witness with a view to exploring the husband’s father’s role in the acquisition of the Waratah bond. Mr Glick KC submitted further that if the evidence supported it, a submission would be advanced to the effect that the visa application was a scam to get money out of Country B.[15]
[14] (2010) 241 CLR 1.
[15] Transcript 26 September 2023 39 L 9.
It was common ground that the husband used the money in his mother’s accounts to buy the two parcels of real property in Suburb J. Mr Glick KC submitted that a Black v Freedman[16] trust may have been thereby constituted, the beneficial owners being the husband’s parents. Yet, Mr Glick KC submitted that the husband and the husband’s mother had studiously avoided joining the husband’s father.[17] Mr Glick KC contended that the credit of the husband’s mother had been thereby tarnished. He cited in support how the husband’s parents were in financial difficulties, their creditors were pursuing them, debts due to creditors in respect of secured assets were in default, real properties were at risk of seizure, sale or other execution, the husband’s parents did not want their creditors to know that the husband’s parents were intending to somehow acquire various properties so the husband’s parents purchased properties from creditors using funds supplied by the husband’s parents yet those properties were acquired in the names of the husband’s parents’ children one of whom was the husband.[18]
[16] (1910) 12 CLR 105.
[17] Transcript 26 September 2023 T 41 L 43.
[18] Transcript 26 September 2023 T 42 L 27-32.
Mr Glick said that even if I were to make findings along those lines, it would not mean that the husband’s mother was per se dishonest yet it might reflect upon her credibility when it came to assessing contributions.
The wife contended that the husband’s mother’s claim for money had and received as a proprietary trust claim failed.
So far as imputing knowledge of the fraudulent conduct of the husband to the wife, Mr Glick KC submitted that evidence of actual participation by the alleged fraudster was required in accordance with the observations of the High Court in Cassegrain v Gerard Cassegrain & Co Pty Ltd.[19] Agency would not suffice, so Mr Glick KC submitted. He said an allegation by the husband’s mother that the wife ought to have known certain things missed the evidentiary requirement because fraud imported the subjective state of mind of the alleged fraudster. In Cassegrain the court applied the observations of Street J in Schultz v Corwill Properties Pty Ltd[20] and of Dixon J in Wright v Gibbons.[21] Mr Glick KC submitted[22] that those authorities are to be understood to mean that the mere fact that a person, being the agent of another, does not lead to the conclusion that the knowledge of one is knowledge possessed by the other. In other words, in the case of agency, it was not enough only for the perpetrator of the fraud to be fraudulent because there must be additional circumstances by which the agent’s knowledge of the fraud is to be imputed to the principal. Here, so Mr Glick KC argued, the husband was the agent of his mother but not of the wife. In this case, Mr Glick KC submitted that the case earlier pleaded by the husband’s mother about agency had been struck out yet upon repleading the agency point was still being pressed.
[19] (2015) 254 CLR 425.
[20] [1969] 2 NSWR 576, 582.
[21] (1949) 78 CLR 313.
[22] Transcript 26 September 2023 T 55 L 5.
So far as the husband’s mother’s common law claim for money had and received was concerned, several matters were raised by Mr Glick KC in opening. First, it being a common law claim, the husband’s mother’s claim to recover the money said to have been fraudulently misappropriated was part of this litigation by reason of this court’s accrued jurisdiction to hear and determine matters within the jurisdiction conferred by s 29 of the Federal Circuit and Family Court of Australia Act. Second, in any claim for money had and received, it was critical that the retention of the money was unjust. Yet in this case, according to Mr Glick KC, no assertion had been made by the husband’s mother that it was unjust for the husband and wife to retain their alleged enrichment. Despite that, Mr Glick KC brought to my attention that the husband had appeared and entered a submitting appearance by which he submitted to the making of all orders the mother sought against him including judgment against him.
Mr Glick KC submitted that it would not be necessary to debate in this case whether or not this court’s accrued jurisdiction was properly and regularly enlivened. While in this case there may be no contest for the parties about the existence of this court’s accrued jurisdiction to hear and determine the common law claim advanced by the husband’s mother for money had and received, the existence of jurisdiction is binary.[23] The court either possesses jurisdiction or the court does not possess it, irrespective of what the parties may agree. The first duty of the court is to determine its jurisdiction as was held as long ago as 1911 in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd[24] and in 1924 in Hazeldell Ltd v The Commonwealth.[25]In the passages set out below I record my reasons why I take the view that this court’s accrued jurisdiction under s 29 of the Federal Circuit and Family Court of Australia Act has been properly invoked so as to confer power upon me to hear and determine the husband’s mother’s common law claim to money had and received while concurrently hearing and determining the s 79 application for orders adjusting the property interests of the husband and wife.
[23] QYFM v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419.
[24] (1911) 12 CLR 398.
[25] (1924) 34 CLR 442.
So far as the burden of showing fraud by the wife was concerned, Mr Glick KC relied upon the principle adumbrated by Marks J in Protean (Holdings) Ltd (receivers and managers appointed) v American Home Assurance Co[26] and in Clayton Utz v Dale[27] to the effect that the husband’s mother should first adduce evidence of the fraud in which she said her son engaged before the wife was called upon to give her evidence in the case. Mr Glick KC said the justice of this case required the husband’s mother’s evidence to be given prior to the wife’s evidence about how it was said that the wife was the husband’s agent.
[26] [1985] VR 187.
[27] (2015) 47 VR 48.
At a factual level, the precise way in which funds were raised in Country B anterior to the deposit of funds into the two Commonwealth Bank accounts was a major subject of controversy at trial. On behalf of the husband’s mother Mr Brown KC submitted that the whole issue of the genesis of the funds was largely irrelevant because the funds were owned by the husband’s mother when misappropriated and the manner in which those funds came into the account from which they were fraudulently taken was beside the point.
As it transpired, the solicitors for the wife wrote to the solicitors for the husband’s mother on 8 September 2023 (a matter of days before the commencement of the trial) seeking disclosure in the following terms –
“From where did your client get the funds to deposit $4.9 million into the smart access account [in] February?”
No response was given.
In the husband’s mother’s trial affidavit made 13 September 2023, the husband’s mother deposed to her using a foreign exchange company by reason of restrictions on the transfer of funds from Country B. The husband’s mother deposed to transferring money to accounts held by persons holding authorised quotas to send funds overseas. The husband’s mother deposed to initially transferring the equivalent of AUD $50,000 into a specific account, although the identity of the account holder was not given by the husband’s mother. The husband’s mother deposed to a further AUD $4.8m being deposited into the accounts of 10 other persons in Country B, although Mr Glick KC frankly conceded he was unaware whether those persons to whom funds were transferred had authorised quotas in respect of the transfer of money. In opening Mr Glick KC attempted to “connect the dots”[28] (his words) by contending that the persons in Country B to whom funds were transferred received the funds and later, in Australia, a company purchased Australian dollars on behalf of the husband’s mother using Country B currency in Country B in such manner that money did not physically go from Country B to Australia. Mr Glick KC said the husband’s mother had previously responded to questions put to her on point by the wife to the effect that the husband’s mother did not know where the AUD $5m came from. Mr Glick KC in opening put the matter in the following terms –
Mr Glick KC: “So what we think happened is this; “I transfer money in [Country B] to people I don’t know which is the equivalent of $5 million Australian, but in [Country B currency]. In Australia, a foreign exchange company transfers $5 million into my bank account because there’s money in [Country B] to protect it”. Now, we asked for the transfers of the money from [Country B] to Australia. No response. So we are entitled to investigate this matter if the mother is going to say “it’s my money”.
[28] Transcript 26 June 2023 T 79 L 40.

That lengthy preamble led to Mr Glick’s KC point in opening[29] that the husband’s mother failed to adduce admissible evidence that the money in the bank accounts in Australia allegedly misappropriated was legally and beneficially owned by the husband’s mother as to 100% of the funds.
[29] T 81 L 44.
Mr Glick KC foreshadowed an application being made by him in accordance with Protean (Holdings) Ltd (receivers and managers appointed) v American Home Assurance Co, his making a no-case submission and if successful that would remove the wife from the litigation.[30]
[30] T 83 L 17.
Expressed in terms of the law relating to trusts, Mr Glick KC opened on the basis[31] that the husband’s parents jointly provided funds that went into the two Commonwealth Bank accounts in the sole name of the husband’s mother so a resulting trust of the deposited funds inured in favour of the husband’s father yet the husband’s father had not been joined as a party to the proceeding. As the bond was acquired using funds once standing to the credit of the depositors in the two Commonwealth Bank accounts, then the persons properly entitled to the full legal and beneficial ownership of the bond plus interest thereupon were the husband’s parents on a Black v S Freedman & Co trust basis.
[31] T 86 L 45.
In this proceeding the first version of the husband’s mother’s statement of claim was struck out by me pursuant to orders made on 7 July 2023.[32] In the amended version delivered on 15 July 2023, the husband’s mother did not press any point to the effect that any retention of money had and received would be unjust.
[32] Wu & Luo [2023] FedCFamC1F 565.
The husband’s mother’s amended pleading introduced a series of allegations under the heading “agent for the wife”. In it the husband’s mother asserted in paragraph 44 that the wife authorised the husband to exercise control over the wife’s financial affairs. On behalf of the wife Mr Glick KC submitted that such an assertion provided an insufficient factual platform to support the contention that such control authorised the participation by the wife in fraudulent conduct. As to paragraphs 45 and 46, Mr Glick KC contended that the assertion that the husband controlled the wife’s financial affairs did not constitute the husband as the agent of the wife in such manner that the wife was fastened with the husband’s fraud in the acquisition of the two Suburb J properties. Mr Glick KC submitted that the husband’s mother’s contention that one spouse dealt with one aspect of certain matters within the marriage leaving to the other different aspects of matters within the marriage does not give rise to the husband being the wife’s agent for the purpose of defrauding the husband’s mother.[33] Mr Glick submitted that it was a knock-out point to which no answer could be meaningfully advanced[34] by the husband’s mother that by the wife authorising the husband to do certain activities of a financial nature within the marriage, the wife thereby authorised the husband to engage in fraud. Mr Glick KC called in aid the decision of Osborn J of the Supreme Court of Victoria in Canaccord Genuity (Australia) Pty Ltd v Allen[35] and the decision of Street J in Schultz to make good that proposition. Actual knowledge of the fraud was required,[36] he submitted. Mr Glick KC submitted that the plea by the husband’s mother based in agency that the husband’s fraud is to be sheeted home to the wife was hopeless and unmaintainable. As to the money had and received claim, Mr Glick KC said no suggestion was made by the husband’s mother that it would be unjust for the wife to retain the money or the property to which the contention was applicable.
[33] T 94 L 8.
[34] T 95.
[35] [2022] VSC 631.
[36] T 98 L 10.
At 2.15pm on 26 September 2023 (the second day of the trial) Mr Brown KC for the husband’s mother announced that his client abandoned the agency claim made in respect of the wife and that the husband’s mother amended her money had and received claim to plead that it would be unjust for the wife to retain the properties.[37] The abandonment of the agency pleading by the husband’s mother had the consequence of removing[38] the issue raised by Protean (Holdings) Ltd (receivers and managers appointed) v American Home Assurance Co.[39]
[37] T 107.
[38] T 111.
[39] [1985] VR 187.
By way of better illustration of the involvement of FF Company and the way citizens of Country B were involved in raising funds to be deployed in international currency exchange, Mr Glick KC opened on point at the end of the second day of the trial.[40] He said that on the facts of this case, an Australian foreign currency dealer directed the husband’s mother to make payments of certain sums to certain specified persons holding identified accounts in Country B the identity of which the husband’s mother may not have known. Once the Australian foreign currency dealer was satisfied that the husband’s mother had in fact deposited funds in accordance with its direction, then the Australian foreign currency dealer sold to the husband’s mother Australian dollars of an equivalent amount of the Country B currency deposited in Country B. In this case, a private money trader called FF Company was used which had a physical presence in Sydney. Court book page 939 provided an illustration showing a direction by FF Company to the husband’s mother for her to deposit exact amounts as indicated to specified persons. The payments were then made in accordance with FF Company’s directions to the six persons in Country B in amounts totalling Country B currency 16,225,000 in February. The following day, a further sum totalling Country B currency 15,265,600 was deposited in accordance with FF Company’s instructions for the husband’s mother to deposit funds into 11 accounts when the exchange rate was approximately five Country B currency to AUD $1. Once the funds were deposited in Country B, the Country B persons informed FF Company that funds had been deposited as directed and FF Company paid an equivalent sum in Australian dollars at the prevailing exchange rate into an Australian bank account. The funds were not electronically transferred and instead the funds were back-to-back.[41] The document at court book 930 revealed that the exchange rate was 6.49.
[40] T 118.
[41] T 121.
Mr Glick KC opened on the basis that no international movement of funds was involved which was relevant because in 2017, as part of a United Nations world-wide initiative the governments of Australia and Country B engaged in collaborative efforts to detect unlawful money laundering of funds flowing between those two countries. However, Mr Glick KC emphasised that nowhere in the documentation given by the husband’s mother was the source of the Country B currency 16.225m stated.[42] The husband’s mother maintained her position that the money paid by way of back-to-back transfer into the accounts in Australia was owned legally and beneficially by the husband’s mother’s solely.
[42] T 123.
Having opened at length about the manner in which funds came to be deposited into the Commonwealth Bank accounts, at least to the extent that information on point was available on day two of the trial, Mr Glick KC raised an evidentiary matter. He said that the relevant information about how the back-to-back funds transfer came to pass would only emerge from the cross-examination of the husband’s mother. If it transpired that the transactions anterior to the deposit of funds in the two Commonwealth Bank accounts were in violation of laws of Country B concerning taxation or money laundering, he said expert evidence would be required.
As part of the wife’s analysis about the deposit of funds into the two Commonwealth Bank accounts, Mr Glick KC opened in respect of the bond stating[43] that the husband’s father was named as the first person on the bond to reflect his status as the primary applicant on the visa application yet the bond was a joint bond with the consequence that upon maturity the sum invested should have been repaid to the husband’s parents jointly together with interest. The sum of AUD $5m was duly invested, the maturity date being early 2018. Mr Glick KC said that the husband’s father had a joint interest along with the husband’s mother in the bond with the consequence that in accordance with the observations of the High Court in John Alexander’s Clubs Pty Ltd v White City Tennis Club Pty Ltd,[44] the husband’s father should have been a party to this proceeding.
[43] T 127.
[44] (2010) 241 CLR 1.
Mr Lloyd SC for the husband opened in exceptionally brief terms (occupying no more than two pages of transcript)[45] contending that no money laundering occurred, that no documents existed to make good the wife’s spousal maintenance claim and child support claim and that any s 75(2) factors would be difficult for the wife to prove. Mr Lloyd submitted that the orders sought by his client’s mother were reasonable and acceptable.
[45] T 145 - 147.
On behalf of the husband’s mother, Mr Brown KC’s opening was also exceptionally brief (also occupying no more than two pages of transcript)[46] in which he contended that his client’s claim to money had and received did not require her to establish the existence of an unjust outcome, citing David Securities Pty Ltd v Commonwealth Bank[47] that no evidence existed of money laundering and that the husband’s mother simply wanted her money back.
[46] T 148 - 150.
[47] (1992) 175 CLR 353.
THE WIFE’S EVIDENCE
The wife made three affidavits. Those affidavits were made on –
(a)29 August 2023;
(b)22 September 2023; and
(c)24 September 2023.
Those three affidavits represented the wife’s evidence-in-chief in this proceeding. So far as the wife’s 29 August 2023 affidavit was concerned, she deposed to the following –
(a)the husband’s mother commenced a proceeding in the Supreme Court of New South Wales in late 2021 in respect of the two Suburb J properties;
(b)the husband filed a response in which he sought a declaration that he and the wife held the two Suburb J properties on trust for the husband’s mother and for orders transferring the husband’s wife’s interests in those properties to the husband’s mother;
(c)six properties had been identified by the wife’s solicitors which were not included in the balance sheet and which should have been;
(d)the husband and wife had known each other since each was 12 years of age and they commenced a romantic relationship as university students;
(e)they married in 2002 and became citizens of Australia in 2006;
(f)in mid-2016 she and the husband decided to purchase the two Suburb J properties so they purchased Units 1 & 2 off-the-plan paying a 10% deposit on each being the amounts of $12,000 for one and $12,200;
(g)she deposed that –
“at no time did (the husband) tell me that the [Suburb J] properties were to be purchased and held on behalf of his mother”;
(h)the Suburb J properties are held jointly in the names of the husband and the wife from which they each receive rental income; and
(i)the wife discovered that on 5 March 2021 the husband had unilaterally withdrawn $1,510,000 from her account and deposited that amount into an account of the husband’s mother.
Information in the wife’s affidavits about the circumstances surrounding the acquisition of the Suburb J properties was limited. She deposed to leaving financial affairs to her then husband.
Mr Lloyd SC cross-examined the wife. The following matters emerged from the wife’s evidence in answer to questions put to her in cross-examination conducted by Mr Lloyd –
(a)the wife sought the sum of $16,558 per month by way of spousal maintenance;
(b)the wife sought the sum of $10,585 per month by way of child support;
(c)school fees in Country B were Country B currency 350,000 per annum;
(d)the wife normally spends AUD $10,000 per month for her two children;
(e)when travelling to Country B, she and the children fly business class;
(f)she currently lives in rented accommodation in Country B;
(g)the entirety of the husband’s and wife’s financial affairs was left to the husband;
(h)as a home maker the wife said she worked 24 hours a day;
(i)the wife and the wife’s parents were mainly responsible for raising the husband’s and the wife’s children;
(j)the wife did not consider the husband to be a very good father; and
(k)she does not want to see the husband again.
Mr Brown KC on behalf of the husband’s mother cross-examined the wife. The more significant factual matters that emerged from the evidence given by the wife in answer to the cross-examination by Mr Brown may be stated in précis form as follows –
(a)the husband paid between AUD $2.4m and AUD $2.5m for the acquisition of the two Suburb J apartments in December 2019;
(b)funds to complete the purchases came from a joint account;
(c)the husband earned approximately $4,250,000 in 2018 which gave him sufficient funds to purchase the two Suburb J apartments without the need to borrow funds;
(d)the husband was in control of the money in the family;
(e)she disagreed that she was making up her evidence concerning the husband telling her that his mother had given AUD $5m for the family;
(f)at the time the wife and husband had AUD $6.5m in their account;
(g)the wife disagreed that she thought the AUD $5m was given by the husband’s mother to be used to purchase the Suburb J apartments because the apartments were not expensive and the husband had funds to purchase them;
(h)the wife agreed that the husband told her that the husband’s mother had given him AUD $5m as a gift and that the wife’s then mother-in-law told the wife the same thing;
(i)in late 2019 six weeks before the settlement the husband had funds to settle the purchase of the Suburb J properties;
(j)in a social media conversation between the wife and the husband on 19 October 2019 the wife admitted that the husband stated that the money used to purchase the Suburb J apartments was borrowed from the husband’s parents;
(k)the wife admitted that by mid-2019 the husband’s mother had given the husband and wife the sum of AUD $5m yet she agreed she did not question the husband when he told the wife that the money to purchase the apartments had been borrowed from his parents but she said she had, from childhood, not a clear concept about money;
(l)after the wife visited a migration agent in relation to an application for a migration visa by the husband’s parents, in support of that application the husband’s parents needed to have AUD $5m available for investment;
(m)the wife recognised certain correspondence from Ms R of L Pty Ltd commencing 16 January 2013 but she said she had no recollection of it because she said the husband had access to the wife’s emails and she said she had never seen the 16 January 2013 email from Ms R;
(n)the husband was in charge of all emails and bank accounts;
(o)the wife said her role in the husband’s parents’ migration to Australia was limited to sourcing a migration agent which she said she did;
(p)the wife said she had not seen an email dated 17 May 2013 from L Pty Ltd, she could not recall having seen an email from L Pty Ltd dated 3 June 2013 and she said positively that she had not seen an email dated 7 August 2013 (that became exhibit M5);
(q)the wife said she sent an email to a person called ... on 15 January 2014;
(r)the AUD $5m used to fund the wife’s then parents-in-law’s migration process was money owned by the husband’s parents;
(s)the wife was telephoned by her then mother-in-law during which call the wife’s mother‑in-law told the wife that the AUD $5m was a gift; and
(t)the wife said she could not remember when that call took place.
That was the extent of the viva voce questioning of the wife. Very little evidence relevant to contributions emerged. Some but very little questioning was directed to child support and spousal maintenance.
THE HUSBAND’S EVIDENCE
The wife’s case did not close at the conclusion of her evidence because she was requested to bring various documents from her home on 3 October 2023. In the interest of expedition, Mr Lloyd SC put the husband in the witness box whereupon the husband adopted his affidavit made 7 September 2023 as his evidence-in-chief. Relevantly synthesised, in the husband’s 7 September 2023 affidavit he deposed to his marriage with the wife breaking down on a final basis at the end of 2020 and the two separating in January 2021. Relevantly to the issue in this case concerning the $5m, the husband deposed as follows –
(a)in September 2012 his parents discussed with him their applying for a significant investor visa which allowed them to obtain a visa to stay permanently in Australia by investing AUD $5m in an approved investment scheme for a fixed period;
(b)his parents instructed the husband and the wife to source a suitable migration agent to assist;
(c)in October 2012 the wife recommended L Pty Ltd to assist and after negotiations L Pty Ltd was appointed;
(d)his mother opened two bank accounts with Commonwealth Bank in 2013 “then she transferred about $4,900,000 into her bank account” (his words) and she nominated him as an authorised signatory;
(e)Country B allowed an individual to transfer up to USD $50,000 per annum from Country B so the husband’s parents needed to use an authorised foreign exchange company, FF Company;
(f)between February and November 2013 the husband said he transferred funds in his mother’s smart access account into term deposits until maturity in November 2013 at which time he transferred $5,034,615.87 back into his mother’s smart access account then withdrew funds to purchase the bond in the name of his parents so as to satisfy their visa conditions;
(g)half annual interest amounts of $84,250 were deposited directly into his mother’s smart access account until the bond maturity date in early 2018 at which date a final amount of $5,084,250 was deposited into his mother’s smart access account;
(h)in late 2017 he became concerned that Country B would use information about his mother’s funds in Australia against his mother;
(i)he told the wife that by reason of his concerns with the money in his mother’s accounts he would transfer the funds in his mother’s accounts into accounts in the names of the husband and the wife commencing August 2017;
(j)the transferring of funds by the husband from the husband’s mother’s two Commonwealth Bank accounts to the husband’s and wife’s account resulted in the husband’s mother having 37 cents left in her accounts;
(k)he said he did the same thing with funds generated once the bond matured in early 2018;
(l)he said he was unable to deposit all funds into one account by reason of depositor amount limits set by the Commonwealth Bank with the consequence that he was required to deposit some funds into accounts held in the wife’s name and into some accounts in the joint names of the husband and the wife in the period October 2019 to December 2019;
(m)he removed $5,702,134.77 from funds generated by the bond standing to the mother’s credit and he paid an unspecified sum of that $5,702,134.77 into an account held by the wife and the husband;
(n)the husband did not inform his mother that he had dealt with the bond funds and interest because he “thought it was unnecessary because (he) was just safeguarding her money at that time” (his words);
(o)he asserted that in the period July 2017 to June 2021, the total funds that he said were “belonging to my mother” amounted to $5,980,134.77 at least;
(p)in 2016 he said that he and the wife decided to acquire two units in a development at Suburb J with a view to selling those units prior to their completion thereby achieving a profit from the on-sale;
(q)they bought one for $1,200,000 and the other for $1,220,000;
(r)in August 2019 the husband deposed to his realisation that market conditions had changed and so rather than on-selling the apartments prior to their completion, he decided to complete the purchase of the apartments;
(s)at the time he did not have liquid funds of his own, the wife refused to sell the matrimonial home, he was unable to obtain mortgage finance, he had resigned his job so he decided to use his what he described as his mother’s funds to complete the purchase “with the intention of repaying the money to her with interest once I have enough money” (sic) (his words);
(t)in December 2019 the husband completed the purchases by withdrawing three tranches of $901,189 from funds “belonging to my mother” (his words) and paying those funds to the developer;
(u)the husband deposed to communicating by social media with the wife in the Country B language to the effect that they bought the properties from money borrowed by them from his parents;
(v)the Suburb J apartments were let upon settlement being achieved and to 30 June 2023 rental generated was $205,372;
(w)the husband deposed to not informing his mother about his and the wife’s purchase of the Suburb J properties using her funds because he said it was a bad investment about which he did not want his parents to know;
(x)between January and March 2021, upon the husband’s mother learning what the husband had done with her money, the husband’s mother demanded the return of all available funds once those invested funds had matured along with interest;
(y)the husband said that on the same day (although he did not say when the conversation was held) he cancelled the wife’s credit card and he said that he would transfer to his mother $1,510,000 out of the wife’s account making the sum of $3,409,632.81 returned to the mother, leaving, so the husband said, to be returned to his mother $2,570,000 in cash plus the value of the two Suburb J properties; and
(z)in June 2021, the husband’s mother sent the wife a message with the husband’s mother’s assertions concerning the funds and the Suburb J properties.

Having addressed a number of contested items from the parties’ submitted balance sheet, the balance sheet as found by me is set out hereunder –

ASSETS

1 KK Street, Suburb LL NSW (“former matrimonial home”) $6,500,000

2 balance of net sale proceeds of OO Street Suburb LL NSW (“Suburb LL apartment”) $374,169

3 Unit 1 K Street, Suburb J NSW $1,100,000

4 Unit 2 K Street, Suburb J NSW $1,100,000

5 V Street, Suburb W, City SS, Region Z $180,000

6 D Street, Suburb E, City F, Region G ("City F Property") $1,832,337

7 AA Street, Suburb BB, City CC, Region Z [H] ("[City CC Property]") $223,858

8 Units 1-7 at DD Street, Suburb EE, City H, Region Z (City H apartments) $1,618,655.60
(being Country B currency 7,600,000 converted to AUD at prevailing rate on 29/11/2023)

9 34% shareholding in JJ Ltd Nil

10 Motor vehicle 1 $70,000

11 CBA Smart Access Account (#...40) $25

12 CBA "[Mr Yeng Ms Sun]" GoalSaver1 (#...62) (#...70) Closed

13 CBA GoalSaver1 Account (#...89) $157

14 CBA GoalSaver 2 Account (#...97) $275

15 CBA NetBank Saver Account (#...42) $23,073

16 CBA Smart Access Account (#...96) $1,779

17 Westpac Choice Account (#...44) $448

18 Westpac eSaver Account (#...15) $9,010

19 CBA Account (#...00) $2,225

20 ANZ Access Advantage Account (#...84) $158

21 ANZ Online Saver Account (#...28) $10

22 CBA "[Mr Yeng]" GoalSaver1 (#...46) $7

23 CBA Smart Access Account (#...36) $5,412

24 CBA Net Saver Account (#...77) $16,347

25 GG Bank (#..13) $3,489

26 HH Bank (#...16; EFTPOS Card number #..71) $16,641

27 NAB account (#...89) $423

28 furniture and household effects nil

Subtotal $13,078,498.60

ADDBACKS

29 funds transferred by respondent 1 from the applicant’s bank account between January 2021 to March 2021 $1,899,632

30 funds transferred by respondent 1 from the applicant’s bank account in March 2021
$1,510,000

Subtotal $3,409,632

PART PROPERTY PAYMENTS

31 interim property distribution to R1 $680,000

32 interim property distribution (including vehicles received) to A $680,000

Subtotal $1,360,000

SUPERANNUATION

35 R1 Super fund 1 accumulation $18,420

Subtotal $18,420

LIABILITIES

33 loans from MM Financial Institution Nil

34 monetary claim by the second respondent Nil

NET $17,866,550.60

TOTAL NET ASSETS INCLUDING SUPERANNUATION $17,866,550.60

CONSIDERATION OF THE ORDERS SOUGHT BY THE HUSBAND

It is convenient to commence with an examination and analysis of the orders sought by the husband. Paragraph one of the orders sought by the husband incorporated a declaration to the effect that the Suburb J apartments are held in the names of the husband and wife on trust for the benefit of the husband’s mother.
In the passages above I have addressed that component of the respondent’s claim in this case. I do not agree that any trust arose in favour of the second respondent in the circumstances of the acquisition of the two Suburb J apartments. The husband and wife are the holders of the fee simple estate as registered proprietors of the Suburb J apartments, unencumbered by any equitable claim of the sort agitated by the respondents. I refuse to make the declaration sought in paragraph one of the husband’s proposed orders.
The husband sought a further declaration that the husband and wife were jointly liable to the husband’s mother in the sum of $2,442,227.19, being the total amount of $5,851,860 less $3,409,632.81 paid to her, plus rent.
As has already been recorded above I disagree that any indebtedness exists as between the husband and wife jointly and the husband’s mother. No relationship of debtor and creditor arose as between the husband and the wife on the one hand as putative burrowers and the husband’s mother on the other hand as putative lender. No contract of loan existed. No terms that were sufficiently certain as to be capable of enforcement arose. No consideration passed when the alleged advance was made. I refuse to make the declaration sought.
In paragraph three of his proposed orders the husband seeks an order compelling the wife and the husband to sell the Suburb J apartments. The husband and wife are registered proprietors of those parcels of land. Otherwise than by a mortgagee in the exercise of its power of sale or by a court order the registered proprietors have an indefeasible title against the whole world,[374] immune from claims such as those made by the husband on behalf of his mother compelling the husband and wife to sell.
[374] Breskvar v Wall (1971) 126 CLR 376 following Frazer v Walker [1967] 1 AC 569.
I refuse to make the order sought in paragraph three of the husband’s proposal.
Aligned to paragraph three of the husband’s proposal is paragraph four pursuant to which the husband proposed that he and the wife personally pay any shortfall between the sum due to the husband’s mother and the sum raised by the proposed sale of the Suburb J apartments. Having regard to my refusal of the husband’s proposal to sell the Suburb J apartments in order to meet any alleged debt due to the husband’s mother it follows that I also refuse to order the husband and wife to personally meet any shortfall between the price raised on sale of the apartments and the alleged debt said to be due to the husband’s mother. There will be no order for sale.
In paragraph five of the husband’s proposed orders he sought orders that upon the husband and wife “fulfilling their obligations under the foregoing orders”[375] then the husband’s mother indemnified the husband and wife in relation to taxes, duties and charges incurred by the sale and transfer of the apartments. Having regard to the fact that the sale and transfer proposed by the husband has been refused, it follows that the need for indemnities to be provided in consequence of that sale and transfer evaporates. I refuse to make the order sought in paragraph five of the husband’s proposed minutes.
[375] Meaning selling the apartment and possibly meeting any shortfall.
In paragraph six of his proposed minutes the husband put forward an order that the wife and husband immediately instruct Longton Legal to release to the husband and wife in equal shares funds held on trust for the spouse parties in respect of the property situated at and known as OO Street, Suburb LL in the State of New South Wales. That sum has been included in the parties’ assets. It has been factored into the parties’ adjustment of property interests.
Paragraph seven of the husband’s minutes included his proposal that the wife transfer her interest in the former matrimonial home, described as the “[Suburb LL property]”, to the husband so that he became the sole registered proprietor absolutely. Paragraph eight contemplated the wife simultaneously delivering to the husband all furniture, fixtures and fittings. Of course, the orders proposed in paragraph eight are premised on the making of an order in terms of paragraph seven. In essence, the husband sought an order which had the effect of conferring title to the former matrimonial home in his name. I refuse such an application. As these reasons attest, I have made orders for the wife to become the sole registered proprietor of the former matrimonial home. I refuse to make the orders sought in paragraphs seven and eight of the husband’s proposal.
Paragraph nine is likewise a machinery provision. I also decline to make such an order.
In paragraph 10 of his proposed minute the husband postulated a cash payment under s 79 in an amount corresponding to 25% to the applicant and 75% to him. As has already been explained, in my view the nett assets of the parties are to be divided as to 50% to the husband and 50% to the wife, recognising that the husband’s 50% share must be reduced by the amount of $4,089,632 being certain.
In a separate document prepared by the husband and styled “effect of orders sought by the first respondent”, he purported to spell out how the flow of funds took effect. That document provided as follows –

Husband’s share

Property Value

KK Street, Suburb LL NSW $6,500,000

AA Street, Suburb BB, City CC, Region Z $223,858

Units 1-7 at DD Street, Suburb EE, City H, Region Z $1,550,957

Cash in Bank (CBA #...40) $10

Cash in Bank (CBA #...46) $7

Cash in Bank (CBA #...36) $5,412

Cash in Bank (CBA #...77) $16,347

Cash in Bank (GG Bank) $3,489

Cash in Bank (HH Bank) $16,641

Cash in Bank (NAB #...89) $423

Proceeds of sale for OO Street, Suburb LL NSW $79,224

Household Furniture $25,000

Interim Property Distribution $780,000

Super Fund 1 $18,420

Net Distribution $9,219,788

Percentage 74.82%

Wife’s share

Property Value

V Street, Suburb W, City SS, Region Z, $180,000

D Street, Suburb E, City F, Region G $1,832,337

Cash in Bank (CBA #...40) $10

Cash in Bank (CBA#...89) $2,956

Cash in Bank (CBA #...97) $18,893

Cash in Bank (CBA #...96) $73,972

Cash in Bank (CBA #...42) $37

Cash in Bank (CBA #...00) $2,327

Cash in Bank (WESTPAC #...44) $346

Cash in Bank (ANZ #...84) $4,587

Cash in Bank (ANZ #...28) $3

Proceeds of sale for OO Street, Suburb LL $79,225

Interim Property Distribution $828,000

Motor Vehicle 1 $80,000

Net Distribution $3,102,693

Percentage 25.18%

Claims by second respondent   $5,851,860
Suburb J Properties   -$2,200,000
Funds previously returned to second respondent   -$3,409,000
Balance   -$242,860

That table seemed to have been submitted in support of the husband’s contentions for a 75/25% division of assets. As has already been recorded, I refuse to make orders on that percentage basis.
The husband’s mother’s submissions did not append a form of minute of order. The orders she sought were sufficiently apparent from the husband’s proposed minute. It involved paying the husband’s mother a very considerable sum of money. I refuse such a proposal.
The wife’s proposal was embedded in her latest version of her amended initiating application.
ORDERS PROPOSED BY THE WIFE
The latest iteration of the orders sought by the wife in her s 79 application, as opposed to the relief she sought in opposition to the claims advanced by the husband’s mother, were recorded in the wife’s further amended initiating application sealed on 6 November 2023. Those orders were as follows –
Transfer
(1)That within 60 days, the husband do all things and sign all documents necessary to transfer his interest in the following properties to the wife –
(a)the property situate at KK Street, Suburb LL, NSW more particularly described as Certificate of Title Folio Reference ...;
(b)the property situate at Unit 1 K Street, Suburb J NSW more particularly described as Certificate of Title Folio Reference ...; and
(c)the property situate at Unit 2 K Street, Suburb J NSW more particularly described as Certificate of Title Folio Reference ....
(2)That within 14 days the parties do all thing and sign all documents necessary to transfer the funds held on their behalf in the trust account of Longton Legal into an account nominated by the wife.
(3)That within 60 days the wife do all things and sign all documents necessary to transfer her interest in the property D Street, Suburb E, City F, Region G.
Retention of assets
(4)That the husband relinquish his interest and the wife retain for her sole use and benefit the following –
(a)her interest in the following properties in Country B –
(i)V Street, Suburb W, City SS, Region Z;
(ii)her Motor vehicle 1;
(iii)the balance of funds held in bank accounts in her personal name.
(5)That the Wife relinquish her interest in and the Husband retain for his sole use and benefit the following –
(a)his interest in the following properties in Country B –
(i)AA Street, Suburb BB, City CC, Region Z;
(ii)Units 1-7 at DD Street, Suburb EE, City H, Region Z;
(b)his business interests including but not limited to his 34% interest in JJ Ltd;
(c)the balance of funds held in bank accounts in his personal name;
(d)his superannuation entitlements.
(6)The husband be solely responsible to pay to the 2^nd Respondent any monies that this Honourable Court finds are payable to the 2^nd Respondent by either the wife and/or the husband, pursuant to an claim brought by the 2^nd Respondent against the wife and/or the husband in her Amended Response to Initiating Application (ARIA)
(7)That such liability of the wife and/or the husband to the 2^nd Respondent (if any) referred to in paragraph 6, shall be disregarded for purposes of determining what is otherwise a just and equitable division of the property to the wife and husband.
For the avoidance of doubt –
(a)the value of the property of the husband and the wife otherwise available for adjustment between them pursuant to s79 of the Family Law Act 1975 (Cth) (the Act), is to be calculated without deduction of any amount which may be found to be owing to the 2^nd Respondent by either the wife or the husband pursuant to any claims made by the 2^nd Respondent in her ARIA;
(b)any such liability of either or both the husband and wife to the 2^nd Respondent is to be ignored and not taken into account for purposes of determining what would otherwise be a just and equitable adjustment of the assets of the husband and the wife. The adjustment under s79 of the Act of the property of the husband and the wife is to be undertaken as if no monies were owned to the 2^nd respondent;
(c)the husband is to be solely responsible to pay to the 2^nd Respondent any amount which this Honourable Court finds so payable to the 2^nd Respondent; and
(d)the husband indemnifies the wife and shall keep her indemnified in relation not all any debts, actions, claims, suits and demands, liabilities howsoever arising including but not limited to any action taken by the 2^nd respondent against him and/or the wife.
Payment
(8)That within 60 days the husband pay such sum to the wife ensuring that she receives 65% of the net assets determined by the Honourable Court available for division between the husband and wife upon taking into account assets and liabilities to be retained by the husband and/or wife pursuant to paragraphs 1 to 7 of these orders.
Indemnities
(9)The husband hereby indemnifies the wife and shall keep her indemnified in relation to all and any debts, actions, claims, suits and demands, liabilities howsoever arising including but not limited to any action taken by the 2^nd respondent against him and/or the wife.
(10)The husband otherwise assume sole responsibility for any loan or liability in his name or any liability encumbering or associated with any item of property to which he is entitled pursuant to these orders (husband’s debts), and the husband indemnify the wife and keep her indemnified in respect of any liability arising from the husband’s debts.
(11)The wife hereby indemnifies the husband and shall keep him indemnified in relation not all and any debts, actions, claims, suits and demands, liabilities howsoever arising.
(12)The wife otherwise assume sole responsibility for any loan or liability in her name and any liability encumbering or associated with any item of property to which she is entitled pursuant to these orders (wife’s debts), and the wife indemnify the husband and keep him indemnified in respect of any liability arising from the wife’s debts.
Miscellaneous
(13)Unless otherwise specified in these orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses in action and equitable interests) in the possession or name of such party as at the date of the orders;
(b)each party retain all long service leave, redundancy, retirement, retrenchment, and like benefits belonging to each of them respectively to the exclusion of the other and each hereby forego all claims of whatsoever nature to such benefits, entitlements and the like retained by the other;
(c)all insurance policies are to become the sole property of the owner named therein; and
(d)the parties do all acts and things necessary to close all accounts held in their joint names and divide the balance, if any, between them in equal shares.
Maintenance
(14)Pursuant to s 72 and 74 of the Family Law Act 1975, the husband pay spousal maintenance to the wife in the amount of $16,555 per month with the payment to commence one month after the date of these orders and continue each month thereafter for a period of three years
(15)Pursuant to section 66G of the Family Law Act 1975, the husband shall pay to the wife the amount of $10,585 per child per month being child maintenance for the children, being X, was born in 2008 and Y, born in 2009 with the payment to respective children complete secondary school I the year they turn 18.
Restraint
(16)That the 2^nd respondent be restrained from commencing any proceeding in Country B with respect to any of the following properties –
(a)V Street, Suburb W, City SS, Region Z; and
(b)D Street, Suburb E, City F, Region G.
(17)That the 2^nd respondent be restrained from commencing any proceeding in Country B against the wife with respect to any matters in relation to any property dealt with in this proceeding.
Costs
(18)That the husband and 2^nd respondent pay the wife’s costs of this application.
(19)Such further or other orders as the Honourable court considers appropriate.
It is necessary to take each paragraph of her proposal in turn.
Having found that a division of net assets as between the spouse parties on a 50/50 basis is just and equitable, and recognising that the wife conceded that a large body of real property in Country B should be allowed in favour of the husband, it next became necessary to identify the value of the parties’ assets having regard to my dismissal of the claims asserted in personam by the husband’s mother. As has been recorded above, in my view the value of the matrimonial pool is as the wife asserted, namely AUD $17,866,550.60. Half of that value is $8,933,275 (rounded to the nearest dollar). The wife’s proposed order 1(a) involves a transfer to her by the husband of his interest in the former matrimonial home, so that the wife holds the whole of the legal and equitable interest in that parcel of real property unencumbered. On the figures adopted in the balance sheet, the order proposed by the wife operated in such manner as to confer property valued at $6,500,000 in her favour upon her becoming the sole registered proprietor of the former matrimonial home. The value ascribed to the former matrimonial home achieved that result and therefore the proposal in paragraph one of the wife’s orders should be made, in my view. Of the sum which I have determined represents a 50% division of net assets ($8,933,275) the sum of $6,500,000 achieves a goodly proportion of that amount.
She also sought in paragraph 1(b) and (c) of her orders the transfer to her of the two Suburb J apartments, the combined value being $2,200,000. When added to the value of the former matrimonial home ($6,500,000), the aggregated value of the three parcels of real property was $8,700,000, slightly less than the value of the half interest in the total asset pool.
In paragraph 2 of her proposed orders the wife sought payment of the sum held by Longton Legal, being the balance of the proceeds of sale of the Suburb LL apartment, namely $374,169. A payment of that amount was derived for her more than her half share. That was for the simple reason that the attainment of the wife’s half interest was achieved in the following manner (expressed arithmetically) –

Half of the value of assets to be divided, as found $8,933,275.30

Made up of –

Former matrimonial home $6,500,000

Plus Suburb J apartments $2,200,000

Part property distribution $680,000

Sum due to husband $446,725

$8,933,275.30 $8,933,275.30

Achieving the husband’s half interest of $8,933,275.30 was differently achieved. It was as follows –

Half value of the assets to be divided, as found $8,933,275.30

Made up of –

All items on the balance sheet as found other than the former matrimonial home ($6,500,000), the two Suburb J apartments ($2,200,000) $4,378,498.60

Superannuation $18,420

Money paid by the husband to his mother $3,409,632

Interim property distribution $680,000

Payment to be made to the husband by the wife $446,725

$8,933,275 $8,933,275

In paragraph 3 of her proposed orders the wife proposed transferring her interest in property D Street, Suburb E, City F, Region G. According to the balance sheet, that property was valued at $1,832,337. The wife conceded that the husband should have that property and that its value went to making up the husband’s entitlement in his half share allocation of property interests in this case.
In paragraph 4 of her proposed orders the wife sought orders for the relinquishment of the husband’s interests in the property at V Street, Suburb W, City SS, Region Z, and the wife’s Motor vehicle 1 as well as the balance of funds held in bank accounts in her personal name. According to the balance sheet as found by me, the real property at V Street, Suburb W, City SS, Region Z was valued at $180,000 and her motor vehicle was valued at $70,000, despite the absence of evidence as to the value of the motor vehicle. Leaving that aside, the combined total of those two assets was $250,000. If she gets Motor Vehicle 1, she receives more than her half share.
The wife’s entitlement to a 50% division of assets as found by me was $8,933,275.30. She has been satisfied in full from the transfer to her absolutely of title of the former matrimonial home, by the transfer to her absolutely of title to the two Suburb J apartments and of her part property payment already received.
However, the wife has sought orders in paragraph 4 of her proposed orders in relation to her retention of the property at V Street, Suburb W, City SS, Region Z and in relation to Motor Vehicle 1. No specific submissions were addressed on point concerning the wife’s wishes concerning her retention of the property at V Street, Suburb W, City SS, Region Z or about the Motor vehicle 1. So far as the real property at V Street, Suburb W, City SS, Region Z was concerned, it is just and equitable for the husband to retain that parcel of real property in Country B. Put differently, if the wife were to retain her interest in that parcel of real property (in addition to the former matrimonial home, the two Suburb J apartments, the car and part of the proceeds of the sale of the Suburb LL apartment she would derive a windfall gain.
In paragraph 5 of the wife’s proposed orders she proposed her relinquishment in the real property described in item 7 of the balance sheet as found by me. That property is AA Street, Suburb BB, City CC, Region Z as well as one of the apartments comprising the City H apartments.
It is important to recognise precisely what the wife sought in paragraph 5 of her proposed orders. She proposed relinquishing her interest in –
(a)the parcel of real property described as the City CC property the street address of which is AA Street, Suburb BB, City CC, Region Z, that property being separately identified on the balance sheet as found by me, at item 7, the value of which was $223,858; and
(b)the seven parcels of real property making up the City H apartments, being the real property described in item 8 of the balance sheet as found by me.
According to the values ascribed to those parcels of real property, by the wife relinquishing her title to each, the husband thereby derived the sum of $1,842,513.60. To my way of thinking, the wife’s proposal was sensible.
Paragraphs 5(b), (c), and (d) were to like effect in that the wife relinquished her interest in the husband’s business interests, including his 34% interest in JJ Ltd. She also proposed relinquishing funds held in bank accounts in the husband’s personal name plus superannuation. As has been recorded above, the 34% interest in the company is valueless. The husband’s superannuation on the balance sheet as found by me is $18,420. In order to achieve an outcome where the husband obtains the whole of his superannuation, the addback sum credited to the husband (1,899,632 plus $1,510,000) must be reduced by $18,420 so that the husband’s superannuation amount of $18,420 is recognised in this s 79 adjustment as being an amount allocated solely to the husband. To my way of thinking, that is a just and equitable outcome.
In item 6 of the wife’s proposed orders, the wife posited orders that the husband was solely responsible to pay his mother any amounts I have found payable by either the wife or the husband to the husband’s mother. I have found that no sum is owing to the husband’s mother. In those circumstances the orders proposed in paragraphs 6 and 7 of the wife’s proposal are otiose.
In paragraph 8 of the wife’s proposed orders she sought payment of sums representing 65% of the nett assets. That was her application in her amended initiating. Subsequent to that application, the wife proposed orders being made, the effect of which was to –
(a)confer sole registration upon the husband of the City CC property along with the City H apartments;
(b)divide all nett assets of the parties on a 50/50 basis; and
(c)add back to the pool of assets available for division funds transferred by the husband from the spouse parties’ joint account paying his mother $1,899,632 and $1,510,000 between January and March 2021 (a total of $3,409,632); and
(d)credit the sum of $3,409,632 against sums due to the husband, treating him as having already received that sum and dealt with it as he saw fit, relevantly here, paying it to his mother.
Paragraphs 9 to 12 of the wife’s proposals recorded above also proposed indemnities in respect of debts, actions, claims, suits and demands arising (from or) including any actions taken by the husband’s mother. The only evidence in this litigation concerning claims by the husband’s mother are those addressed by me in this case. I dismissed the husband’s mother’s claims. Nothing remains in respect of which an indemnity could operate.
Paragraph 13 addressed sole entitlements to all property. It was appropriate to make such an order.
Paragraphs 14 and 15 of the wife’s proposed orders addressed maintenance. The orders proposed in those paragraphs were predicated upon the wife having successfully provided her entitlements to spousal maintenance under ss 72 and 74 of the Family Law Act and under ss 66G of the Family Law Act in relation to child maintenance. The reasons set out above have described how I take the view that the wife failed to prove her claims for –
(a)spousal maintenance; and
(b)child maintenance.
The orders in the wife’s proposals at paragraphs 14 and 15 presume the wife succeeded on her maintenance claims. She failed. I decline to make the orders sought by her in paragraphs 14 and 15 of her minute.
In paragraphs 16 and 17 anti-suit injunctions were proposed. At no stage was there debate about anti-suit injunctions, at least none that enlivened any considerations of or submissions about High Court authorities such as Voth v Manildra Flour Mills Pty Ltd,[376] Henry v Henry,[377] and CSR Ltd v Cigna Insurance Australia Ltd.[378] In Lin v Yew[379] I surveyed those and other important decisions. No debate was advanced by any counsel about those authorities. No expert evidence was adduced on point. The evidence, such as it went, was to the effect that the husband’s mother may (repeat, may) commence litigation in Country B in respect of one or more of the properties in this case that are located in Country B. However, the evidence went no further. In those circumstances no basis has been advanced for the making of the restraints postulated in paragraphs 16 and 17 of the wife’s proposed orders.
[376] (1990) 171 CLR 538.
[377] (1996) 185 CLR 571.
[378] (1997) 189 CLR 345.
[379] (2020) 62 Fam LR 244.
Paragraph 17 is a costs application. I will hear parties on the question of costs. To that end, prior to any determination about costs, I order –
(a)any party seeking costs to apply by filing and serving an application in a proceeding by noon on 12 December 2024 together with all affidavit material in support of the costs application;
(b)any opposition to any such application for costs must be brought by the filing and service of that party’s response to an application in a proceeding, such response to be filed and served by noon on 20 January 2025;
(c)any party’s submissions on costs must be filed and served by noon on 3 February 2025;
(d)if required by the parties, I shall hear any viva voce submissions on costs between 1.00pm and 2.00pm on 6 March 2025; and
(e)if not so required by any party to hear debate about costs, I shall determine the question of costs on the papers.
Paragraph 19 of the wife’s proposal is an omnibus provision, catering for all possible orders for which provision was not otherwise made. In my view, the above orders –
(a)effect a just and equitable alteration of the parties’ property interests for the purposes of s 79 of the Family Law Act; and
(b)effect, as near as possible, a result contemplated by s 81 of the Family Law Act by disentangling the spouse parties’ property interests on a final basis.

I certify that the preceding five hundred and six (506) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.
Associate:
Dated: 13 November 2024
ANNEXURE

MEMORANDUM

Re  SYC8025/2022 – Sun & Yeng
From  The Honourable Justice Wilson
Date  28 May 2024
Subject  Matters for further submissions
ACCRUED JURISDICTION
(1)No party advanced any submissions on point. Each party must advance submissions on jurisdiction.
(2)The four key authorities are –
(i)Adam P Brown Pty Ltd v Phillip Morris Inc[380];
[380] (1981) 148 CLR 457.
(ii)Fencott v Muller[381];
[381] (1983) 152 CLR 570.
(iii)Stack v Coast Securities (No 9) Pty Ltd[382]; and
[382] (1983) 154 CLR 261.
(iv)Re Wakim[383].
[383] (1999) 198 CLR 511.

(3)Parties cannot agree that the court has jurisdiction nor can the court proceed to hear a case on the basis that jurisdiction exists when it may not.
(4)The court must be independently satisfied that jurisdiction exists. Cross-vesting, per se, will be insufficient to ground jurisdiction.
(5)Even if the parties conduct the case on the premise that jurisdiction exists, that is not sufficient.

MISCELLANEOUS MATTERS
(6)Cronin J decision mentioned at T618.
(7)Davies J decision mentioned at T617.

CHARACTERISING ARRANGEMENTS VIS-A-VIS THE HUSBAND’S PARENTS, THE HUSBAND AND THE WIFE AS A LOAN.
(8)Recognising the observations in Ashton v Pratt[384] –
[384] (2015) 88 NSWLR 281.
(a)must there be certainty before any such loan arrangement can be properly so characterised as a loan?;
(b)is every advance a separate contract of loan?
(c)if not, must every separate advance be supported by consideration, be certain and have terms that are enforceable?; and
(d)can the separate advances be properly characterised as a loan if the putative lender will never enforce the loan?

CHARACTERISING ADVANCES AS A GIFT
(9)If the former matrimonial home is already registered in the names of the husband and the wife, a resulting trust may be capable of being asserted in favour of the provider of the money but the husband’s mother and the husband’s father make no claim to a resulting trust in this case.
(10)If the whole of the purchase price for the former matrimonial home was provided by the husband’s parents –
(a)a resulting trust may arise in favour of the husband’s parents; and
(b)the funds provided may not take the form of a gift by reason of the fact that a condition (working for the husband’s parents) is attached to the gift.

(11)In the circumstances described in paragraph 10, what is the legal character of the advances that were applied towards the acquisition of the former matrimonial home?

THE DECISION BY THE HUSBAND’S PARENTS NOT TO MIGRATE TO AUSTRALIA
(12)Does the wife go so far as to submit that the husband’s parents did not genuinely intend to migrate and that the purpose in depositing the AUD $5m was to benefit the husband. If so, what evidence does the wife rely on for that submission?
(13)If the wife’s thesis is that upon the husband’s parents deciding not to migrate they permitted the husband to treat the funds in the husband’s mother’s account as his own, then why did the husband tell his mother at all about the allegedly misappropriated money if the money was the husbands’?

OTHER CHARACTERISATIONS OF THE FUNDS
(14)If the husband returned to his mother $3,470,659, is that not a concession that he (possibly along with the wife) was not entitled to the money in the first place.
(15)Put differently, is the fact of the husband’s returning to his mother the sum of $3,470,659 consistent with his belief that he was not entitled to the money he removed from his mother’s account?
(16)Is his subjective belief determinative of the characterisation of the money?

EVIDENTIARY ISSUES
(17)Is valuation evidence necessary to support the valuations of items on the balance sheet?
(18)What explanation was given for the husband’s mother’s failure to call the husband’s father?
(19)Is a Jones v Dunkel[385], Kuhl v Zurich[386] and The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq)[387] inference open? If so, does it arise against both the husband and the husband’s mother?
[385] (1959) 101 CLR 298.
[386] (2011) 243 CLR 361.
[387] [2023] NSWCA 291.
(20)Is there any inconsistency in the –
(a)unqualified submission that the husband agreed with everything the husband’s mother said in the SCNSW proceeding; compared with
(b)the criticism in paragraph [89] of the husband’s written submissions?

(21)What is the source of evidence referred to in paragraph 19 of the husband’s mother’s written submissions in relation to an argument about a release?
(22)If I find that the money has been stolen from the husband’s mother’s accounts, it ceases to be available for division but how is it put that the husband can assert an entitlement to an order for the wife to share in the loss of funds stolen [T 633].
(23)It is possible that I may find, against the husband and his mother that –
(a)the wife is a victim of a concerted plan to disadvantage the wife; and
(b)the movement of funds from the husband’s mother’s account was a private arrangement to make the pool of divisible assets as small as possible.

If so, what submissions do the husband and his mother make in response?
(24)The value of the City H apartments given in paragraph [14] of the wife’s submissions is $1,618,655.80. Where does that figure come from?
(25)Was the AUD $3.4m that the wife wants added back joint funds deposited in the husband’s mother’s account? If so, what is the source of that evidence?

PROPOSED ORDERS
(26)Does the wife propose a 50% division of assets only if there is a finding of misappropriation?
(27)Why does not the wife assert 50% come what may?
(28)The husband proposes orders that he gets the former matrimonial home and the wife does not oppose that but if I am against that, does the husband propose any other disposition of the former matrimonial home, possibly by sale and a division of the proceeds.

28 May 2024

File number	SYC 8025 of 2022
Judgment of	WILSON J
Date of judgment	13 November 2024
Catchwords	FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – claims between husband, wife and husband’s mother – husband’s father not a party to the proceeding – whether adverse inference available from his failure to give evidence. FAMILY LAW – JURISDICTION – accrued jurisdiction – consideration of husband’s mother’s claim for money had and received and whether that claim arouse out of one indivisible set of circumstances – court’s first duty to determine whether it possesses jurisdiction to determine the matter before it. FAMILY LAW – JURISDICTION – whether the husband’s mother’s common law claims are justiciable as part of the husband’s and wife’s application for the adjustment of property interests – extensive review of High Court authorities including Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261, Fencott v Muller (1983) 152 CLR 570 and Re Wakim; ex parte McNally (1999) 198 CLR 511. FAMILY LAW – CONSTITUTIONAL LAW – ss 75, 76 and 77 of the Constitution of the Commonwealth of Australia considered – “matter” considered – “single justiciable controversy” considered. FAMILY LAW – EQUITY – constructive trust alleged by husband’s mother in respect of funds allegedly misappropriated by her son – husband’s mother authorising her son to deal in funds in her account – Black v S. Freedman & Co (1910) 12 CLR 105 constructive trust asserted. FAMILY LAW – EQUITY – allegation about the wife’s dishonest receipt of funds misappropriated in breach of trust by the husband and consequent constitution of husband and wife as constructive trustees under the first limb of the rule in Barnes v Addy (1874) LR 8 LR App 244. FAMILY LAW – REAL PROPERTY – Torrens System land – indefeasibility of title – whether the registration obtained by fraud – exception to the indefeasibility of title rule – whether established. FAMILY LAW- ILLEGALITY – recoverability of funds procured in contravention of laws of Country B in respect of transferring funds out of Country B – whether the court should assist the husband’s mother in an allegedly illegal scheme. FAMILY LAW – PRIVATE INTERNATIONAL LAW – money generated by Country B visa applicants transferred to the holders of authorised quotas for money transfers in Country B – once those funds were fully transferred to and held by the authorised quota holders in Country B, an equivalent amount in Australian dollars was released by a currency transfer company in Australia which then transferred to the visa applicants in Australian dollars the equivalent sum as was held in Country B by the authorised quota holders so as to comply with their investment requirements – such practice being contrary to the Country B Implementation Rules of the Administrative Controls on Individuals; Foreign Exchange promulgated by the State Administration of Foreign Exchange on 5 January 2007 – consequences of non-compliance with those Country B rules. FAMILY LAW – FRAUD – evidential burden – whether husband’s mother was required to prove her allegations of fraud prior to the wife giving her evidence in the case – Protean (Holdings) Ltd (receivers and managers appointed) v American Home Assurance Co [1985] VR 187 and Clayton Utz v Dale (2015) 47 VR 48 considered. FAMILY LAW – EVIDENCE – adverse inference open to be drawn by the failure of the husband or by his mother to call the husband’s father to corroborate the version of events concerning the deposit of money in Australia in respect of the husband’s parents’ visa application. FAMILY LAW – GIFT – wife asserting that the husband’s parents conferred on the wife and the husband a gift of the whole of the sum received by the husband and that no misappropriation took place but rather, that the husband’s parents authorised the husband to deal with funds in the mother’s account as and when he choose. FAMILY LAW – MONEY HAD AND RECEIVED – a common law claim – whether it was properly part of the court’s accrued jurisdiction – need for proof that the retention of money allegedly had and received was unjust – whether cause of action now subsumed into an unjust enrichment claim in a restitution suit.
Legislation	Constitution of the Commonwealth of Australia Act 1901 ss 75, 76, 77 Bankruptcy Act 1966 Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Act 1988 Court Security Act 2013 Crimes Act 1900 Family Law Act 1975 ss 26, 28, 29, 31, 33, 66E, 75, 79 Family Law Amendment Act 1983 Federal Circuit and Family Court of Australia Act 2021 s 29 Federal Court of Australia Act1976 ss 32, 33 Migration Act 1958 Real Property Act 1900 s 42 Trade Practices Act 1974 ss 52, 86
Cases cited	Ah Yick v Lehmert (1905) 2 CLR 593 Akbar v Gandega (2023) 67 Fam LR 593 Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 Ashton v Pratt (2015) 88 NSWLR 281 Attorney-General of the Commonwealth v The Queen (1957) 95 CLR 529 Attorney-General v Perry (1792) 92 ER 1169 Attorney-General v Worrall [1895] 1 QBD 99 Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560 Australian Postal Commission v Lutak (1991) 21 NSWLR 584 Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 Bacall & Zagar [2020] FamCA 350 Baltic Shipping Co v Dillon (1993) 176 CLR 344 Barnes v Addy (1874) LR 8 Ch App 244 Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087 Bishop v Bishop (2003) 30 Fam LR 108 Black v S Freedman & Co (1910) 12 CLR 105 Bray v Federal Commissioner of Taxation (1978) 36 FLR 295 Breskvar v Wall (1971) 126 CLR 376 British South Africa Co v Companhia de Moçambique [1893] AC 602 Bunbury v Fuller (1853) 156 ER 47 C & C (Accrued Jurisdiction) (2001) 28 Fam LR 253 Campbell v Kitchen & Sons Ltd (1910) 12 CLR 515 Canaccord Genuity (Australia) Pty Ltd v Allen [2022] VSC 631 Candle & Falkner [2021] FedCFamC1A 102 Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 Carpenter v Morris [2023] NSWCA 154 Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425 CGU Insurance Limited v Blakeley (2016) 259 CLR 339 Clayton Utz v Dale (2015) 47 VR 48 Cole v The Commonwealth [1962] NSWR 1019 Collector of Imposts (Vic) v Cuming Campbell Investments Pty Ltd (1940) 63 CLR 619 Collector of Imposts (Vic) v Peers (1921) 29 CLR 115 Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 Commonwealth v Hospital Contribution Fund (2022) 275 CLR 24 Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (2001) 208 CLR 516 Comptroller of Stamps (Vic) v Joe White Maltings Pty Ltd [1956] VLR 253 Corin v Patton (1990) 169 CLR 540 Crampton & Robinson [2013] FamCA 65 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353 Dilosa v Latec Finance Pty Ltd (No 1) (1966) 1 NSWR 255 Divcon (Australia) Pty Ltd v Devine Shipping Pty Ltd [1996] 2 VR 79 DMW v CGW (1982) 151 CLR 491 Ebstaller v Poulos (2014) 87 NSWLR 394 Emerald & Emerald [2023] FedCFamC1F 183 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 F Firm v Ruane (2014) 52 Fam LR 230 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 80 Fazil & Fazil [2023] FedCFamC1F 1015 Federal Commissioner of Taxation v McPhail (1968) 117 CLR 111 Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 Felton v Mulligan (1971) 124 CLR 367 Fencott v Muller (1983) 152 CLR 570 Frazer v Walker [1967] 1 AC 569 Frost v Stevenson (1937) 58 CLR 528 Galea v Galea (1990) 19 NSWLR 263 Gates v Gates (1976) 1 Fam LR 11 Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 GLJ v The Trustees of the Roman Catholic Church of the Diocese of Lismore (2023) 97 ALJR 857 Gollan v Nugent (1988) 166 CLR 18 Gordon v Chief Commissioner of Metropolitan Police [1910] 2KB 1080 Harris v Caladine (1991) 172 CLR 84 Hazeldell Ltd v The Commonwealth (1924) 34 CLR 442 Henry v Henry (1996) 185 CLR 571 Hill v Zuda Pty Ltd (2022) 275 CLR 24 Holloway v McFeeters (1956) 94 CLR 470 Honeysett v R (2014) 253 CLR 122 In re the Judiciary Act 1903-1920 and In re the Navigation Act 1912-1929 (1921) 29 CLR 257 In the Marriage of Currie (1976) 2 Fam LR 11 In the Marriage of Gould (1993) 77 Fam LR 156 In the Marriage of McKay (1984) 9 Fam LR 850 In the Marriage of Prince (1984) 9 Fam LR 481 In the Marriage of Saba (1984) 9 Fam LR 780 In the Marriage of Smith (No 3) (1986) 10 Fam LR 769 In the Marriage of Warby (2001) 28 Fam LR 443 Inland Revenue Commissioners v Church Commissioners for England [1977] AC 329 Irons v Smallpiece (1819) 106 ER 467 Jabour v Jabour (2019) 59 FamLR 475 Jess & Jess (No 4) [2023] FedCFamC1A 189 Jess & Jess (No 7) [2023] FedCFamC1F 291 Jess v Jess [2024] HCASL 47 Jingalong Pty Ltd v Todd [2015] NSWCA 7 John Alexander’s Clubs Pty Ltd v White City Tennis Club (2010) 241 CLR 1 Jones v Dunkel (1959) 101 CLR 298 Kable v Director of Public Prosecutions (1996) 189 CLR 51 Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 Kennon v Spry (2008) 238 CLR 266 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Kwon & Reece [2022] FedCFamC1F 203 Lang v R (2023) 97 ALJR 758 Leary v Federal Commissioner of Taxation (1980) 32 ALR 221 Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369 Lin v Yew (2020) 62 Fam LR 244 Lorenzo v Carey (1921) 29 CLR 243 Loxton v Moir (1914) 18 CLR 360 Macrow v Collector of Imposts (Vic) [1921] VLR 23 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 McHale v Watson (1964) 111 CLR 384 Miller v Haweis (1907) 5 CLR 89 Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 471 Moses v Macferlan (1760) 97 ER 676 National Commercial Banking Corporation of Australia v Batty (1986) 160 CLR 251 National Trustees Executors and Agency Co of Australasia Ltd v Federal Commissioner of Taxation (1954) 91 CLR 540 Nelson v Nelson (1995) 184 CLR 538 Noll v Noll (2013) 48 Fam LR 635 O’Donnell v Reichard [1975] VR 916 Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) (2000) 99 FCR 554 Old UGC Inc v Industrial Relations Commissioner of New South Wales (2006) 225 CLR 274 Omacini v Omacini (2005) 33 Fam LR 134 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Pavey & Matthew Pty Ltd v Paul (1987) 162 CLR 221 Paviello & Paviello [2022] FedCFamC1F 592 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Pinnel’s Case (1572) 77 ER 237 Protean (Holdings) Ltd (receivers and managers appointed) v American Home Assurance Co [1985] VR 187 Public Service Association of South Australia v IndustrialRelations Commission of South Australia (2012) 249 CLR 398 QYFM v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 R v Bevan; Ex Parte Elia and Gordon (1942) 66 CLR 452 R v Gray; ex parte Marsh (1985) 157 CLR 351 Re Juliana (1822) 165 ER 1562 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 Rannell v IRC [1964] AC 173 Re Cochrane and the Finance Act 1894 [1906] 2 IR 200, Re Gear [1964] Qd R 528 Re Hope; ex parte Carter (1985) 59 ALR 609 Re Macks; ex parte Saint (2000) 204 CLR 158 Re Wakim; ex parte McNally (1999) 198 CLR 511 Rizeq v The State of Western Australia (2017) 262 CLR 1 Robins v Incentive Dynamics Pty Ltd (1999) 91 FCR 423 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 Russell v Wilson (1923) 33 CLR 538 Schultz v Corwill Properties Pty Ltd [1969] 2 NSWR 576 South Australia v Totani (2010) 242 CLR 1 South Australia v Victoria (1911) 12 CLR 667 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 Stanford v Stanford (2012) 247 CLR 108 Taylor v Ellis [1956] VLR 457 Trevi & Trevi [2018] FamCAFC 173 Troy v Wrigglesworth (1919) 26 CLR 305 Tullo & Tullo [2016] FamCA 716 Valceski v Valceski (2007) 36 Fam LR 620 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Vroon BV v Foster's Brewing Group Pty Ltd [1994] 2 VR 32 Woodcock v Woodcock (No 2) (2022) 65 Fam LR 333 Wright v Gibbons (1949) 78 CLR 313 Sun & Yeng (No 2) [2023] FedCFamC1F 854 Sun & Yeng (No 3) [2023] FedCFamC1F 944 Sun & Yeng (No 4) [2023] FedCFamC1F 955 Sun & Yeng [2023] [2023] FedCFamC1F 565 Yen v Yen (2010) 42 Fam LR 691 Zhang v Zemin (2010) 79 NSWLR 513
Division	Division 1 First Instance
Number of paragraphs	506
Date of last submission	19 July 2024
Dates of hearing	25, 26, 27 and 28 September, 3 and 4 October, 8 November and 8 December 2023.
Place	Sydney
Counsel for the applicant	Mr L Glick KC (all dates) with Mr J Mellas (25 September, 4 October and 8 November 2023)
Solicitors for the applicant	Lander & Rogers
Counsel for the first respondent	Mr J Lloyd SC (all dates) with Mr G Stapleton (25 September, 8 November and 5 December 2023)
Solicitors for the first respondent	Longton Legal
Counsel for the second respondent	Mr D Brown KC (all dates) with Mr D Edney (25 September, 8 November and 5 December 2023)
Solicitors for the second respondent	XR Consulting

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

ORDERS MADE BY	WILSON J
DATE OF ORDER	13 NOVEMBER 2024

FORMAL PARTICULARS	[4]
THE SECOND RESPONDENT’S CLAIMS	[8]
THE CIRCUMSTANCES IN WHICH FUNDS WERE RAISED	[27]
THE WIFE’S EVIDENCE	[64]
THE HUSBAND’S EVIDENCE	[70]
THE HUSBAND’S MOTHER’S EVIDENCE	[95]
THE ACCRUED JURISDICTION OF THIS COURT	[104]
CONSIDERATION OF ACCRUED JURISDICTION IN THE FCFCOA	[132]
ACCRUED JURISDICTION IN WHAT WAS THE FAMILY COURT	[150]
FULL COURT AUTHORITIES	[161]
OTHER AUTHORITIES ON ACCRUED JURISDICTION IN FAMILY LAW LITIGATION	[172]
FURTHER SUBMISSIONS ON ACCRUED JURISDICTION IN THIS CASE	[177]
CONCLUSIONS ABOUT ACCRUED JURISDICTION	[184]
THE TRIAL RESUMES	[186]
THE ASSETS AND LIABILITIES OF THE PARTIES TO THE MARRIAGE	[192]
THE CITY H APARTMENTS AS BALANCE SHEET ITEM EIGHT	[197]
HUSBAND’S SHAREHOLDING IN JJ LTD AS BALANCE SHEET ITEM NINE	[203]
THE FORMER MATRIMONIAL HOME AS BALANCE SHEET ITEM ONE	[204]
ILLEGAL FUNDS – A GIFT, A LOAN OR SOMETHING ELSE?	[214]
OTHER CONTESTABLE ITEMS ON THE BALANCE SHEET	[220]
WITNESS CREDIBILITY	[231]
LEGAL ISSUES ABOUT GIFTS	[249]
FURTHER SUBMISSIONS ON GIFTS	[252]
COUNTRY B LAW ABOUT MONEY TRANSFERS	[257]
THE FORMER MATRIMONIAL HOME – THE PROPER TREATMENT OF ITS ACQUISITION	[274]
THE SUBURB J APARTMENTS – HOW TO TREAT THOSE ACQUISITIONS	[308]
THE MONEY HAD AND RECEIVED CLAIM	[331]
FURTHER SUBMISSIONS ON THE HUSBAND’S PARENTS’ DECISION TO NOT MIGRATE TO AUSTRALIA	[380]
FINDINGS IN RESPECT OF THE SUBURB J APARTMENTS	[385]
ADD BACKS	[419]
PROPERTIES IN COUNTRY B AND THE 34% SHAREHOLDING	[422]
THE JUSTICE AND EQUITY OF A S 79 ORDER	[426]
CONTRIBUTIONS	[429]
SPOUSAL AND CHILD MAINTENANCE	[461]
THE BALANCE SHEET AS FOUND	[467]
CONSIDERATION OF THE ORDERS SOUGHT BY THE HUSBAND	[468]
ORDERS PROPOSED BY THE WIFE	[484]
Transfer	[485]
Retention of assets	[485]
Payment	[485]
Indemnities	[485]
Miscellaneous	[485]
Maintenance	[485]
Restraint	[485]
Costs	[485]

ASSETS
1	KK Street, Suburb LL NSW (“former matrimonial home”)			$6,500,000
2	balance of net sale proceeds of OO Street Suburb LL NSW (“Suburb LL apartment”)			$374,169
3	Unit 1 K Street, Suburb J NSW			$1,100,000
4	Unit 2 K Street, Suburb J NSW			$1,100,000
5	V Street, Suburb W, City SS, Region Z			$180,000
6	D Street, Suburb E, City F, Region G ("City F Property")			$1,832,337
7	AA Street, Suburb BB, City CC, Region Z [H] ("[City CC Property]")			$223,858
8	Units 1-7 at DD Street, Suburb EE, City H, Region Z (City H apartments)			$1,618,655.60 (being Country B currency 7,600,000 converted to AUD at prevailing rate on 29/11/2023)
9	34% shareholding in JJ Ltd			Nil
10	Motor vehicle 1			$70,000
11	CBA Smart Access Account (#...40)			$25
12	CBA "[Mr Yeng Ms Sun]" GoalSaver1 (#...62) (#...70)			Closed
13	CBA GoalSaver1 Account (#...89)			$157
14	CBA GoalSaver 2 Account (#...97)			$275
15	CBA NetBank Saver Account (#...42)			$23,073
16	CBA Smart Access Account (#...96)			$1,779
17	Westpac Choice Account (#...44)			$448
18	Westpac eSaver Account (#...15)			$9,010
19	CBA Account (#...00)			$2,225
20	ANZ Access Advantage Account (#...84)			$158
21	ANZ Online Saver Account (#...28)			$10
22	CBA "[Mr Yeng]" GoalSaver1 (#...46)			$7
23	CBA Smart Access Account (#...36)			$5,412
24	CBA Net Saver Account (#...77)			$16,347
25	GG Bank (#..13)			$3,489
26	HH Bank (#...16; EFTPOS Card number #..71)			$16,641
27	NAB account (#...89)			$423
28	furniture and household effects			nil
Subtotal				$13,078,498.60
ADDBACKS
29	funds transferred by respondent 1 from the applicant’s bank account between January 2021 to March 2021			$1,899,632
30	funds transferred by respondent 1 from the applicant’s bank account in March 2021			$1,510,000
Subtotal				$3,409,632
PART PROPERTY PAYMENTS
31	interim property distribution to R1			$680,000
32	interim property distribution (including vehicles received) to A			$680,000
Subtotal				$1,360,000
SUPERANNUATION
35	R1	Super fund 1	accumulation	$18,420
Subtotal				$18,420
LIABILITIES
33	loans from MM Financial Institution			Nil
34	monetary claim by the second respondent			Nil
NET				$17,866,550.60
TOTAL NET ASSETS INCLUDING SUPERANNUATION				$17,866,550.60

Husband’s share
Property	Value
KK Street, Suburb LL NSW	$6,500,000
AA Street, Suburb BB, City CC, Region Z	$223,858
Units 1-7 at DD Street, Suburb EE, City H, Region Z	$1,550,957
Cash in Bank (CBA #...40)	$10
Cash in Bank (CBA #...46)	$7
Cash in Bank (CBA #...36)	$5,412
Cash in Bank (CBA #...77)	$16,347
Cash in Bank (GG Bank)	$3,489
Cash in Bank (HH Bank)	$16,641
Cash in Bank (NAB #...89)	$423
Proceeds of sale for OO Street, Suburb LL NSW	$79,224
Household Furniture	$25,000
Interim Property Distribution	$780,000
Super Fund 1	$18,420
Net Distribution	$9,219,788
Percentage	74.82%

Wife’s share
Property	Value
V Street, Suburb W, City SS, Region Z,	$180,000
D Street, Suburb E, City F, Region G	$1,832,337
Cash in Bank (CBA #...40)	$10
Cash in Bank (CBA#...89)	$2,956
Cash in Bank (CBA #...97)	$18,893
Cash in Bank (CBA #...96)	$73,972
Cash in Bank (CBA #...42)	$37
Cash in Bank (CBA #...00)	$2,327
Cash in Bank (WESTPAC #...44)	$346
Cash in Bank (ANZ #...84)	$4,587
Cash in Bank (ANZ #...28)	$3
Proceeds of sale for OO Street, Suburb LL	$79,225
Interim Property Distribution	$828,000
Motor Vehicle 1	$80,000
Net Distribution	$3,102,693
Percentage	25.18%

Half of the value of assets to be divided, as found	$8,933,275.30
Made up of –
Former matrimonial home	$6,500,000
Plus Suburb J apartments	$2,200,000
Part property distribution	$680,000
Sum due to husband	$446,725
$8,933,275.30	$8,933,275.30

Half value of the assets to be divided, as found	$8,933,275.30
Made up of –
All items on the balance sheet as found other than the former matrimonial home ($6,500,000), the two Suburb J apartments ($2,200,000)	$4,378,498.60
Superannuation	$18,420
Money paid by the husband to his mother	$3,409,632
Interim property distribution	$680,000
Payment to be made to the husband by the wife	$446,725
$8,933,275	$8,933,275