Thien and Thien and Ors

[2009] FamCA 287

FAMILY COURT OF AUSTRALIA

THIEN & THIEN AND ORS [2009] FamCA 287

FAMILY LAW – PROPERTY – Settlement in relation to marriage

APPLICANT: Mr Thien

FIRST RESPONDENT: Ms T Thien

SECOND RESPONDENTS: V Thien and E Thien

FILE NUMBER: PAF 1401 of 2006

DATE DELIVERED: 20 April 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: BELL J

HEARING DATE: 17 & 18 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Conte-Mills of Counsel

SOLICITOR FOR THE APPLICANT: Greenfield Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Dura of Counsel

SOLICITOR FOR THE FIRST RESPONDENT: Than & Co, Solicitors

COUNSEL FOR THE SECOND RESPONDENT: Mr Morrissey of Counsel

SOLICITOR FOR THE SECOND RESPONDENT: Quy Lawyers of Fairfield

Orders

1. The second respondents do all acts and things necessary to cause the mortgage to the Commonwealth Bank presently registered and secured over the property known as and situate at B (“the property”) to be discharged and removed from the title of the property within 42 days from the date of these Orders.

2. Within seven (7) days of compliance by the second respondents with Order 1 above, the respondent wife and the second respondents do all acts, things and sign all documents necessary to cause the property to be listed for sale at a price as agreed between the applicant husband and the respondent wife and failing agreement as nominated by the listing agent.

3. Upon the sale of the property the respondent wife and the second respondents provide all necessary authorities and directions to cause the proceeds of sale to be distributed in the following manner:-

   (a)payment of all Real Estate Agent’s commissions and selling expenses;

   (b)payment of legal costs associated with the sale of the property only;

   (c)payment to the second respondents in the sum of $69,757.00;

   (d)payment to the respondent wife or as she may direct in the amount of 75% of the balance then remaining; and

   (e)payment of the balance to the applicant husband or as he may direct.

4. Pending the sale of the property pursuant to these Orders, the applicant husband and the second respondents be declared to have a caveatable interest in the property to such extent as is required to secure the payment by the respondent wife to them in accordance with Order 3 of these Orders and shall be at liberty to register a caveat over the property provided that such caveat is removed on or before settlement of the sale at the expense of the party responsible for registering same.

5. Except as otherwise provided for by these Orders, the husband and wife each be solely entitled, in law and in equity, to the exclusion of the other to all items of personalty, superannuation and any other property in their respective names or to which they have an entitlement to.

6. Except as otherwise provided for by these orders, the applicant husband indemnify the respondent wife and keep her indemnified with respect to any further liability asserted to be outstanding to the second respondents by or on behalf of the applicant husband and/or the respondent wife.

IT IS NOTED that publication of this judgment under the pseudonym Thien is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: PAF 1401  of 2006

MR D THIEN

Applicant

And

MS T THIEN

Respondent

REASONS FOR JUDGMENT

1. This application was initiated by Mr D Thien (applicant) initially for orders relating to four children of his marriage to the first respondent Ms T Thien and property settlement. 

2. The parenting matter has been resolved.  There are four children of the marriage, born February 1989, April 1990, May 1994 and March 1997.  They are living with the mother and there is some spending time with the father.

3. Both the parties were born in Vietnam in or about 1960.  They left Vietnam in about the month of May 1981 and arrived in Australia in or about the same year.  They since that time have lived continuously in Australia save for some trips to Vietnam, particularly by the applicant.  The applicant and respondent have a very poor command of the English language which quite surprises me since they have been resident in this country for a period in excess of 27 years.

4. In October 1987 the applicant intermarried with the respondent.  The parties had known each other for a period prior to that time.

5. After the first respondent entered Australia, her sisters L and P joined her together with her younger brother, U. 

6. The first respondent’s mother continued to live in Vietnam and she sent to the first respondent moneys which the first respondent alleged were used in the purchase of the property situated at B. 

7. After the marriage of the applicant and the first respondent, they endeavoured to run businesses, particularly a repair business with P’s husband.  The business was purchased for about $80,000 and as appears from the applicant’s affidavit in paragraph 20 thereof, this amount was paid out.

8. For the first three months it appears as though this business did reasonably well and the profits from the business, together with some assistance from P, was used to pay off the balance of the $30,000 referred to in paragraph 20(d) of the second respondent’s affidavit filed on 19 October 2007.  This repair business was sold in or about 1988/89.  Thereafter the applicant began working with his brothers and sisters (see the second respondents) in a shop in B. 

9. This was the first time that the second respondent became involved in any of the dealings of the applicant and the first respondent.  The applicant sought moneys from the second female respondent hereinafter referred to as V who is sister-in-law of the applicant.

10. In 1991 the applicant and the then children of the marriage and the first respondent moved to the B property.  This property had previously been lived in by her sisters to whom I have hereinbefore referred.  Her sister L and brother U continued to make payments on the mortgage on the aforesaid property.  They eventually moved out some eight months or thereabouts after the applicant and the respondent moved in. 

11. In or about the year 1992 there was a discussion between the applicant, the first respondent and the second respondents in relation to the property situated at B.  The land at B was of a size which would enable two blocks to be subdivided.

12. It appears that there was an agreement whereby the second respondents would purchase an interest of the applicant and the respondent.  I may say in passing that the applicant really had no legal interest in the property since it was registered in the name of the first respondent.  As a result of that discussion, the second respondents legally purchased the property.  The purchase price was either $150,000 or $160,000.  Nothing rises or falls on this other than to say an amount of $90,000 was the first respondent’s entitlement under the sale.  The second respondent retained these moneys by consent to be used towards the erection of a house for the applicant and first respondent towards the rear of the block.  This looms comparatively large in the claim for interest made by the second respondents in relation to moneys advanced to the applicant and the first respondent. 

13. I note that notwithstanding the second respondents had the benefit of these moneys which were left in their account, no interest was paid by them to the legal owners of such moneys, that is the applicant and the first respondent.

14. The house was eventually built but during the time that it was being built the applicant and first respondent resided in the home which they formerly owned and the question of rent was brought into account.  It appears to me that one of the great problems in this case is something which I generally loathe to do in any application before me and that is to come to a question of credit as to whom I more properly believe.

15. The female second respondent came to Australia at or about the same time as the applicant and/or respondent, but her English is extremely good and she has advanced herself quite considerably.  I expect her fluency in English would be one of the prime reasons for her advancing herself.  She has put before me a list of the amounts of money which she said have been lent by her to the applicant and the first respondent and she has set out her claims for interest.  I was impressed with the female second respondent and because of her fluency in English I found her much easier to understand, because of her obvious expertise in the question of money management and because of her general demeanour I feel compelled in all the circumstances to accept her version of the events which took place in relation to the lending of the money. 

16. I must say also in passing that the first respondent’s almost hysterical outbursts in the court in no way assisted me in accepting that her version of the events which took place in relation to the lending of money was true. 

17. Prima facie the whole block was purchased by the second respondent but it is quite clear that they were in fact and are in fact, if my memory serves me correctly, the legal owners of the land situated at B but hold the rear block upon which the new house was built as trustees for the first and second respondent.

18. The property was subsequently, a considerable number of years later, subdivided and the property situated at the front was sold by the second respondents for approximately $450,000? 

19. As a result of my view in relation to the credit of the parties and I make it quite clear I do not suggest for one moment that any of the parties are telling untruths, it is just the first respondent’s version does not really impress me.

20. It appears quite clear that rent was mentioned between the parties and an amount has been particularised by the second respondent and I accept her version as to this agreement coming into force and effect. 

21. The shop business to which I have hereinbefore referred was not successful and subsequently the applicant decided to enter into another shop business and I am quite satisfied that such shop business, notwithstanding there may be some evidence to the contrary, was purchased not only on behalf of the applicant but as well the first respondent who, as she has indicated, has worked in the businesses to assist the applicant.  I am sure if these businesses would have been successful the first respondent would have insisted that I take into consideration the fact that she was entitled to some profits. 

22. However, neither of these shop businesses were successful and as a result of the difficulty in maintaining the second business, the applicant and the first respondent, I am satisfied, sought moneys once again from the second respondent and the second respondent has advanced those moneys which she has referred to in her in depth and well-presented affidavit. 

23. What is the property capable of subdivision pursuant to the Act?  It appears that the only property of any value which the applicant and respondent had is a beneficial interest in the property which is owned legally by the second respondent, that is the B property which the applicant and the respondent are beneficially entitled to.  What is the value of that?

24. As I have said, the property is not substantial.  It appears that the only substantial asset is that of the house to which the respondent wife is beneficially entitled which I understand is worth something like $420,000 or thereabouts.  As a result of the orders I will be making the value of that property is of little moment as the market will ascertain the true value of it.

25. There are other items of property of comparatively minor nature.  The father has a Honda motor vehicle.  The father has some comparatively small superannuation entitlements.  The wife has little or no other assets other than those to which she is entitled. 

26. How then should I distribute the assets of the parties?  To me it is quite clear that the parties should retain those assets which are in their possession and I would order that the property and/or ownership of such vest in the parties who holds them.

27. Insofar as the house is concerned, there is a difficulty here.  That is I have to decide whether or no the second respondents are entitled to the moneys which they have particularised in exhibit 15, tendered on 17 February 2009 which are made up really of two things.  One is moneys lent, the second is the interest claimed thereon.

28. I was somewhat concerned as to the Land Tax claim.  I have however accepted the methodology of the second respondent.

29. I am more than satisfied, as I have already said, that the amounts allegedly lent and/or expended on behalf of the applicant and first respondent by the second respondents were in fact lent and I have indicated that I have appreciated the evidence of the second respondent.  She gave her evidence in a very succinct and expert way.  I could not, as I have said, accept the evidence of the first respondent. 

30. Consequently, the outlays by the second respondents have been proved in accordance with Exhibit 17.

31. The question of interest is different.  I am more than satisfied that where there is an agreement between the parties for the lending of money that it is necessary in an oral contract to set out all the terms of such contract.  In this case no interest component was mentioned at any time and consequently I am not persuaded that interest should be paid, notwithstanding the rates for interest I consider are reasonable in the circumstances.

32. When the second respondents purchased the property from the first respondent, that is the B property, they had in their possession considerable amounts of money which they quite properly used in the construction of the house in which the first respondent is living.  But there was no mention of interest nor was interest paid by the second respondents to the first respondent on that money which they held for a period of something like one year.  This supports my view that there should be no interest component.  Consequently I am satisfied that the amount owing is those capital outlays particularised in exhibit 17 which amount to $69,757.00.

33. How can the assets be distributed between the parties?  Clearly the prime and in fact only substantial asset of the parties is that which was brought into the marriage by the first respondent.  She purchased this property with the assistance of her mother and some moneys have been repaid to the mother who is now, I understand, in Australia.  She has worked in the businesses.  She has given birth to the children.  She has been primarily responsible, in my opinion, for the looking after and welfare of the children.  She still has the responsibility of some of them and will have not only the emotional but financial responsibility notwithstanding that the father, the applicant, has been paying some moneys by way of child support. 

34. She is interested in a travel agency.  This, I feel, was not adequately investigated and it concerns me that she says that she receives no income from this business other than for some form of vouchers.  I believe that she is probably, and I can only say probably, earning some moneys from that business but I am unable to quantify it and the applicant has not quantified it and consequently I cannot take it into consideration save that it is a factor under s 75(2), i.e. she has the capacity to work.

35. I take into consideration that the respondent’s health is not the best, that she has the responsibility of the children, that she has not as secure income as the applicant who is employed and receives the amount as he sets out in his material.  She does have the security of an interest in the former matrimonial home.  Taking those matters into consideration and doing the best I can, I consider that up until separation the wife would be entitled, in my opinion, to something like 65 per cent of the value of the assets of the parties as at that time.  The so-called starting point of 50:50 does not apply in this case since the wife brought into the marriage the sole major asset of the parties, that she has worked in the failed businesses to which I have referred and I believe, as I have said, that it should be in her favour of 65:35.

36. Insofar as the s 75(2) factors are concerned, mentioning the matters hereinbefore, I consider an extra 10 per cent should be allowed on that and consequently she is entitled to 75:25 of the net assets of the parties.  The only way that I am able to value the assets of the parties is to order that the property sold.  It will have to be sold by the second respondents. 

37. I have had put before me draft orders suggested by each of the parties and I am of the opinion that the minute of order as put forward by the respondent wife as modified by myself will best cover all the eventualities.  I set out that the amount which the second respondents are entitled to is $69,757 and that that amount will be taken off the top of any net proceeds of sale, such net proceeds being the payment of real estate agent’s commission and selling expenses and legal costs associated with the sale of the property and the balance thereof will be split 75 per cent to the wife and 25 per cent to the husband.  The property or the personal chattels and superannuation entitlements will vest in the holder thereof.

38. There is however a mortgage over the property by the second respondents. This mortgage must be discharged by the second respondents immediately prior to sale.  The indebtedness amounts as at 3 April 2009 to $124,645.00  I make no comment about trustee duties in relation to this mortgage.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:     

Date: