Sun & Yeng (No 5)

Case [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…

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AGLC
Sun & Yeng (No 5) [2024] FedCFamC1F 702
Case
[2024] FedCFamC1F 702
Decision Date

CaseChat Overview and Summary

This case involved an application for the adjustment of property interests between Ms Sun and Mr Yeng, with Ms Hau, Mr Yeng’s mother, also a party to the proceeding. The court was required to determine several legal issues, including whether adverse inferences could be drawn from the failure of certain parties to give evidence, whether the court had jurisdiction over the claims made by Ms Hau, and whether the claims made by Ms Hau were justiciable. The court also had to consider whether the claims were part of a single justiciable controversy, the applicability of the doctrine of indefeasibility of title, and whether the court should assist in an allegedly illegal scheme.

The court found that adverse inferences could be drawn from the failure of certain parties to give evidence, but these inferences did not affect the outcome of the case. The court determined that it had jurisdiction over Ms Hau’s claims for money had and received, as these claims arose out of the same set of circumstances as the claims between Ms Sun and Mr Yeng. The court held that Ms Hau’s common law claims were justiciable as part of the property adjustment application, relying on various High Court authorities. The court also found that the claims constituted a single justiciable controversy. Regarding the doctrine of indefeasibility of title, the court did not find that the registration was obtained by fraud. The court declined to assist in an allegedly illegal scheme, as it would contravene the rules of Country B. The court found that Ms Hau failed to prove her allegations of fraud and that the wife’s receipt of funds was not dishonest. The court also found that the husband’s parents had gifted the sum received to the husband and wife, and that no misappropriation took place.

The court made several orders, including the transfer of certain properties to Ms Sun, payment of a sum by Ms Sun to Mr Yeng, and the relinquishment of various interests by Ms Sun. The court dismissed Ms Sun’s application for spousal and child maintenance and ordered that the question of costs be determined at a later date.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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