Wei and Wei (No 2) - [2020] FamCA 96

FAMILY COURT OF AUSTRALIA

WEI & WEI (NO. 2)

[2020] FamCA 96

FAMILY LAW – PRACTICE AND PROCEDURE – Rule 17.02 and Rule 17.02A – functus officio – doctrine considered – not functus officio.

Family Law Act 1975 (Cth), s 79
Family Law Rules 1984 (Cth), o 31 r 6
Family Law Rules 2004 (Cth), rr 17.02, 17.02A
Migration Act 1958 (Cth), s 368(2A)

Chhor v Minister for Immigration [2017] FCCA 2135
Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No.1) (1991) 32 FCR 219
DJL v The Central Authority (2000) 201 CLR 226
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
R v Moodie; Ex parte Mithen (1977) 17 ALR 219

KR Handley, Spencer Bower and Handley: Res Judicata (LexisNexis Butterworths, 4^th ed, 2009)
Osborne, A Concise Law Dictionary (Sweet & Maxwell, 5^th ed, 1964)
Thomas Penberthy Fry, ‘The Finality of Judicial Decisions’ (1956) 2 University of Queensland Law Journal 9

APPLICANT:

Ms Wei

RESPONDENT:

Mr Wei

INTERVENOR:

J Lawyers Pty Ltd

FILE NUMBER:

MLC

530

2017

DATE DELIVERED:

24 February 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

The Honourable Justice Wilson

HEARING DATE:

19 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Not applicable

COUNSEL FOR THE RESPONDENT:

Dr D Matta

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

COUNSEL FOR THE INTERVENOR:

Mr G Holmes

SOLICITOR FOR THE INTERVENOR:

J Lawyers Pty Ltd

Orders

the sum of $261,761.54 being 65% of the amount in the trust accounts is to be paid forthwith to the respondent.
The applicant is entitled to 35% of the sum in trust, namely $140,948.52.
The sum of $140,948.52 referred to in paragraph 2 above is subject to an enforceable equitable charge in favour of J Lawyers Pty Ltd.
The sum of $133,765.39 is to be paid forthwith from the trust accounts to J Lawyers Pty Ltd.
The balance of the sum in trust after payment to the respondent of $261,761.54 and after payment to J Lawyers Pty Ltd of $133,765.39 (the balance being $7,183.13) is to be paid forthwith to the applicant at her last known address.
This proceeding is otherwise dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wei & Wei has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 530 of 2017

Ms Wei

Applicant

And

Mr Wei

Respondent

And

J Lawyers Pty Ltd

Intervenor

REASONS FOR JUDGMENT

Introduction

On 31 January 2020 I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wei and Wei (No 2)

Details

AGLC: Wei and Wei (No 2) [2020] FamCA 96
Case: [2020] FamCA 96
Decision Date: 24 February 2020

CaseChat Overview and Summary

In *Wei and Wei (No 2)*, Justice Wilson of the Supreme Court of Western Australia considered a dispute concerning the distribution of funds held in trust accounts between the applicant and the respondent. The case involved the division of these funds, which were subject to competing claims.

The central legal issue before the court was how to equitably distribute the funds held in the trust accounts, taking into account the respective entitlements of the applicant and the respondent, as well as the claim of a third party, J Lawyers Pty Ltd, for legal costs. The court was required to determine the appropriate percentages of the trust funds to be allocated to each party and to consider the enforceability of any charges over those funds.

Justice Wilson reasoned that a division of the trust funds was necessary to reflect the parties' respective interests and to satisfy the claim of J Lawyers Pty Ltd. The court ordered that 65% of the trust funds, amounting to $261,761.54, be paid to the respondent. The applicant was found to be entitled to the remaining 35%, totalling $140,948.52. Crucially, this sum allocated to the applicant was subject to an enforceable equitable charge in favour of J Lawyers Pty Ltd, to whom $133,765.39 was ordered to be paid forthwith from the trust accounts. The remaining balance of $7,183.13 was to be paid to the applicant. The proceeding was otherwise dismissed.

Orders

Orders of the court

the sum of $261,761.54 being 65% of the amount in the trust accounts is to be paid forthwith to the respondent.

The applicant is entitled to 35% of the sum in trust, namely $140,948.52.

The sum of $140,948.52 referred to in paragraph 2 above is subject to an enforceable equitable charge in favour of J Lawyers Pty Ltd.

The sum of $133,765.39 is to be paid forthwith from the trust accounts to J Lawyers Pty Ltd.

The balance of the sum in trust after payment to the respondent of $261,761.54 and after payment to J Lawyers Pty Ltd of $133,765.39 (the balance being $7,183.13) is to be paid forthwith to the applicant at her last known address.

This proceeding is otherwise dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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