Wei & Xia (No 5) - [2023] FedCFamC1F 679

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wei & Xia (No 5) [2023] FedCFamC1F 679

File number(s): SYC 196 of 2017

Judgment of: HARPER J

Date of judgment: 16 August 2023

Catchwords:
FAMILY LAW – PROPERTY – Where the husband’s parents have been joined as the Second and Third Respondents (“the parents”) – Finalisation of proceedings delayed caused by COVID-19 – Both wife and husband seek final division of 60 per cent in their favour – Wife seeks transfer to her of three real properties owned by spouse parties as joint tenants – Dispute over inclusion of corporate interest and proceeds from property development project on balance sheet – Factual dispute between parties concerning the source of funds used to acquire properties in Australia – No dispute that in excess of $13 million was transferred from Country F to Australia between 2000 and 2017 – Wife contends husband held senior management positions in family business, that Country F funds were his remuneration or share of profits, and are therefore matrimonial assets – Respondents claim Country F funds were derived from the parents or their corporate interests in Country F – Where parents formed and operated a business in Country F – Wife claimed direct involvement in family company, including full-time work as manager – Findings that wife had no employment role in family business – Findings that husband had failed to disclose exact nature his role in Country F business activities of parents – Parents seek declarations that real properties jointly owned by the spouse parties are held on trust, and transfer of wife’s shares in family company to the mother – Where properties purchased using funds borrowed by the spouse parties – Court holds certain properties held on purchase price resulting trust for the parents in proportion to their contribution – Wife owns 19 out of 100 shares in an Australian company which owns a property in Sydney suburb – Parents own remaining shares – Orders made for wife to transfer shareholding to the mother in exchange for payment of consideration.

FAMILY LAW – PROPERTY – Dispute over spouse parties’ involvement in property development project – Wife contends spouse parties borrowed money from the parents for investment and were subsequently excluded from entitlement to profits – Wife seeks inclusion of profits in the matrimonial pool – Where non-exhaustive discretionary family trust was the direct investor – Wife seeks declaration that family trust is the alter ego of the husband – Where husband and father were original appointors – Amendment subsequently made for father to be sole appointor – Where spouse parties originally included as named beneficiaries – Clear evidence that father had control of family trust, not husband – Trust assets not assets of a party to the marriage – Profits excluded from balance sheet.

FAMILY LAW – PROPERTY – Where parties made several off the plan purchases using funds derived from the parents – Where two deposits were refunded – Where the wife drew money from the spouse parties’ joint facilities to pay to her own parents for property investment.

FAMILY LAW – PROPERTY – Dispositions to defeat court orders – Wife seeks orders pursuant to s 106B of the Family Law Act 1975 (Cth) setting aside transfer of shares from husband to the parents in corporate trustees – Wife seeks setting aside of variation to family trust deed which made the father sole appointor – Ancillary orders sought for removal of husband as director and appointment of wife, for father to exercise power of appointment, and ancillary notations – Wife seeks further disclosure, accounting for revenue, capital, and benefits received – Whether dispositions were intended to defeat an existing or anticipated order, or, irrespective of intention, were likely to defeat an order of the Court – Dispositions did not defeat any anticipated or existing court order because they could not affect the composition of the pool of divisible assets – Insufficient evidence that orders were anticipated or likely – Where wife’s primary objective was to place her in control of the trust – Where wife no longer a named beneficiary or within the class of discretionary objects at time of trial by reason of divorce – Where wife’s proposed orders would prolong financial involvement of parties – Where relief claimed is extravagant – Relief declined.

FAMILY LAW – PROPERTY – Assessment of contributions - Declaration pursuant to s 78 of the Act – Orders for refunds to be repaid to the parents – Declarations that spouse parties hold portion of real properties on trust for the parents – Orders for sale of all properties – Where orders for sale were not sought by any party – Court’s discretion exercised in order to completely sever financial relationship between parties – Contributions assessed as equal – 10 per cent adjustment in favour of the wife – Final division of 63/37 in favour of the wife.

FAMILY LAW – EVIDENCE – Civil standard of proof – Discharge of the onus to prove a case on the balance of probabilities – Discussion of case law concerning discharge of onus of proof – Where Court would be entitled to discount evidence actually called by failure to call evidence in a party’s power to call – Inferences to be drawn from documents – Where wife relied on numerous documents to support contentions concerning involvement in the family company – Where many documents written in Country F Language with translation – Authenticity and reliability of documents require proof on balance of probabilities on issues such as provenance or authorship – Wife’s evidence of provenance or authorship largely absent despite it being within her power to call such evidence – Where failure to call such evidence is relevant to determining whether onus has been discharged.

FAMILY LAW – PRACTICE AND PROCEDURE – Disclosure – Wife made extensive submissions that respondents’ disclosure was inadequate or non-existence – Duty of full and frank disclosure – Application of duty to third parties – Where duty enforces a high normative standard – Failure to disclose may lead to unfavourable inferences being drawn against defaulting party – Relationship between principle in Blatch v Archer (1774) 1 Cowp 63 and consequences of non-disclosure.

FAMILY LAW – COSTS – Husband seeks discharge of dollar for dollar costs order made early in the proceedings – Wife contends husband has avoided liability by not paying – Artificiality in arguments made – Where husband has outstanding Supreme Court of NSW judgment debt towards former lawyers – If payments made, they would be pursuant to a judgment debt, not for accounts rendered – Where r 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) automatically discharges any interlocutory order upon the making of final orders – Order discharged.

Legislation:
Corporations Act2001 (Cth)

Evidence Act 1995 (Cth) Pt 2.2, ss 48(1), 55, 58, 59, 69, 128(7), 135, 136, 140, 153, 274, 175

Family Law Act 1975 (Cth) Pts VIII,VIIIAA, ss 4, 75(2), 78(1), 79, 80, 81, 90AC, 90AE, 106B

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 44

Income Tax Assessment Act 1936 (Cth)

Family Law Rules 2004 (Cth) ch 13, rr 13.02,19.04

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pts 6, 7.2, rr 5.01, 6.01, 6.03, 6.06(2)

Real Property Act 1900 (NSW) s 42

Cases cited:
Abrath v North Eastern Railway Co (1883) 11 QBD 440

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542

Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495

Anderson v McPherson (No 2) [2012] WASC 19

Antov v Bokan [2018] NSWSC 1474

AscotInvestments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1

ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17

Atkins & Hunt (2020) FLC 93-992; [2020] FamCAFC 252

Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (1978) 141 CLR 335; [1978] HCA 45

Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) (2012) 207 FCR 448; [2012] FCA 1355

Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) (2015) 235 FCR 181; [2015] FCA 342

Australian Securities and Investments Commission v Rich (2005) 216 ALR 320; [2005] NSWSC 417

Australian Securities and Investments Commission v Rich (2009) 236 FLR 1; [2009] NSWSC 1229

Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567; [1968] UKHL 4

Barnell & Barnell (2020) FLC 93-961; [2020] FamCAFC 102

BCI Finances Pty Ltd (In Liq) v Binetter (2018) 362 ALR 597; [2018] FCAFC 189

BCI Finances Pty Ltd (in liq) v Binetter (No 4) (2016) 348 ALR 227; [2016] FCA 1351

Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116

Black and Kellner (1992) FLC 92-287; [1992] FamCA 2

Black Uhlans Inc v New South Wales Crime Commission (2002) 12 BPR 22,421; [2002] NSWSC 1060

Blatch v Archer (1774) 1 Cowp 63

Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56

Bosanac v Commissioner of Taxation (2022) 96 ALJR 976; [2022] HCA 34

Bourke v Bourke (Final Hearing Costs) (2010) 43 Fam LR 139; [2010] FamCA 199

Briese and Briese (1986) FLC 91-713

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Buffrey v Buffrey (2006) 12 BPR 23,619; [2006] NSWSC 1349

Burke and Burke (1981) FLC 91-055; [1981] FamCA 44

Calverley v Green (1984) 155 CLR 242; [1984] HCA 81

Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136

Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26

Carmel-Fevia & Fevia (2010) 43 Fam LR 405: [2010] FamCA 502

Chang v Su (2002) FLC 93-117: [2002] FamCA 156

Chiefley & Ha [2017] FamCA 683

Clayton v Bant (2020) 272 CLR 1; [2020] HCA 44

Colbeam Palmer Ltd v Stock Affilites Pty Ltd (1970) 122 CLR 25; [1968] HCA 50

Commissioner of Taxation v Cassaniti (2018) 266 FCR 385; [2018] FCAFC 212

Cook’s Construction v Brown (2004) 49 ACSR 62; [2004] NSWCA 105

Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88

Crapp and Crapp (1979) FLC 90-615; [1979] FamCA 17

Currie v Hamilton (1984) 1 NSWLR 687

D and D [Section 85 application] (1984) FLC 91-593

Dakin & Sansbury [2014] FamCAFC 11

Daw v Toyworld (NSW) Pty Ltd (2001) 21 NSWCCR 389; [2001] NSWCA 25

Di Liristi v Matautia Developments Pty Ltd (2021) 396 ALR 545; [2021] NSWCA 328

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

ELB Pty Ltd v Lumina Bpo Pty Ltd [2021] NSWCA 91

Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209; [2016] FCA 1034

Fitzroy & Oliversen [2021] FedCFamC1F 4

Flourentzou v Spink [2019] NSWCA 315

Fowles & Fowles (No 3) [2022] FedCFamC1F 386

G and G (2000) FLC 93-043; [2000] FamCA 1075

G v H (1994) 181 CLR 387; [1994] HCA 48

Gabini & Gabini [2014] FamCAFC 18

Gare & Farlow (2023) FLC 94-146; [2023] FedCFamC1A 98

George v Webb [2011] NSWSC 1608

Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155; [1982] HCA 15

Gissing v Gissing [1971] AC 886

Gould & Gould (2007) FLC 93-333; [2007] FamCA 609

Grech v Deak-Fabrikant (No 3) [2015] VSC 581

Gregg v R [2020] NSWCCA 245

Guest v Federal Commissioner of Taxation (2007) 65 ATR 815; [2007] FCA 193

Halabi v Artillaga (1994) FLC 92-470; [1993] FamCA 154

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

Hampton Court Ltd v Crooks (1957) 97 CLR 367; [1957] HCA 28

Harris & Dewell (2018) FLC 93-839; [2018] FamCAFC 94

Haseloff & Kormann [2013] FamCA 1019

HDM & MM & SJM [2006] FamCA 47

Heath and Heath; Westpac Banking Corp. (1983) FLC 91-362

Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52

Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395

Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC 94-006; [2021] FamCAFC 19

Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168

Horrigan & Horrigan [2020] FamCAFC 25

In the matter of QB Foods Pty Limited [2021] NSWSC 1227

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

JEL and DDF (2001) FLC 93-075; [2000] FamCA 1353

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9

Jones v Sutherland Shire Council [1979] 2 NSWLR 206

Kannis and Kannis (2003) FLC 93-135; [2002] FamCA 1150

Kation Pty Ltd v Lamru Pty Ltd (2009) 257 ALR 336; [2009] NSWCA 145

Kedwell v Deputy Commissioner of Taxation [2020] NSWCA 238

Kennon v Spry [2008] 238 CLR 366: [2008] HCA 56

Knight v Mayart Pty Ltd [2022] VSCA 36

Kowalski and Kowalski (1993) FLC 92-342; [1992] FamCA 54

Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36

Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79

Mabb & Mabb (2020) FLC 93-947; [2020] FamCAFC 18

Manolis & Manolis (No 2) [2011] FamCAFC 105

Masoud & Masoud (2016) FLC 93-689; [2016] FamCAFC 24

Massalski & Riley (2021) FLC 94-047; [2021] FamCAFC 116

Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430; [2021] HCA 1

Moore & Moore (2014) FLC 93-595; [2014] FamCAFC 113

Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25

Mulley v Manifold (1959) 103 CLR 341; [1959] HCA 23

Murtagh v Murtagh [2013] NSWSC 926

Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78

Nagel & Clay (2020) 60 Fam LR 550; [2020] FamCA 326

Napier v Public Trustee (WA) (1980) 32 ALR 153

National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539

Neilson v Overseas Projects Corporation of Victoria (2005) 223 CLR 331; [2005] HCA 54

Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Norman & Norman [2010] FamCAFC 66

Papas v Co [2018] NSWSC 1404

Payne v Parker [1976] 1 NSWLR 191

Peter Cox Investments Pty Ltd (in liq) v International Air Transport Association [1999] FCA 27

Potter v Potter [2003] 3 NZLR 145

PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643; [1992] NSW ConvR 59,532

Public Trustee v Smith (2008) 1 ASTLR 488; [2008] NSWSC 397

R v Radford (1993) 66 A Crim R 210

Rail Corporation New South Wales v Donald [2018] NSWCA 82

Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82

Raulfs v Fishy Bite Pty Ltd [2012] NSWCA 135

Re Lilley [1953] VLR 98

Re Miller [1979] VR 381

Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984

Riemann & Riemann (No 3) [2017] FamCA 911

Rigby and Kingston (No. 4) [2021] FamCA 501

Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158

Jones v Sutherland Shire Council [1979] 2 NSWLR 206

Sampson in his Capacity as Trustee for the Bankrupt Estate of Tannous v Tannous [2022] FCA 1427

Scaffidi v Montevento Holdings Pty Ltd (2011) 6 ASTLR 446; [2011] WASCA 146

Selkirk & Selkirk [2019] FamCAFC 63

Shepherd v Doolan [2005] NSWSC 42

Spink v Flourentzou [2019] NSWSC 256

Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52

Stein and Stein (1986) FLC 91-779; [1986] FamCA 27

Stopford Malloy & Malloy [2021] FedCFamC1F 123

Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5

Stunzi Sons Ltd v House of Youth Pty Ltd (1960) SR (NSW) 220

Sydney Attractions Group Pty Ltd v Frederick Schulman [2013] NSWSC 858

Talwar & Sarai (2018) FLC 93-855; [2018] FamCAFC 152

Thomas v SMP (International) Pty Ltd [2010] NSWSC 822

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

Transport Industries Insurance Co. Ltd v Longmuir [1997] 1 VR 125

Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278; [2006] HCA 6

Twinsectra Ltd v Yardley [2002] 2 All ER 377

VC & GCG (2010) FLC 93-434; [2010] FamCAFC 62

Walker v Walker (1937) 57 CLR 630; [1937] HCA 44

Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950; [2020] FamCAFC 65

Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18

Waterman & Waterman (2017) FLC 93-762; [2017] FamCAFC 23

Wei & Xia [2020] FamCA 894

Wei & Xia (No 2) [2021] FamCA 313

Wei & Xia [2022] FedCFamC1F 136

Wei & Xia (No 2) [2022] FedCFamC1F 189

Wei & Xia (No 4) [2022] FedCFamC1F 204

Weige v Cupton Pty Ltd (2012) 8 ASTLR 229; [2012] NSWCA 414

Weir and Weir (1993) FLC 92-338; [1992] FamCA 69

Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65

Wirth v Wirth (1956) 98 CLR 228; [1956] HCA 71

Yaling & Tsen (2022) 65 Fam LR 437; [2022] FedCFamC1F 676

Ying v Song [2010] NSWSC 1500

Yoshino v Niddrie [2003] NSWSC 57

Zegna & Zegna (No 2) [2022] FedCFamCIF 558

Division: Division 1 First Instance

Number of paragraphs: 674

Date of last submission/s: 16 November 2022

Date of hearings: 12–20 October 2020, 28 March–7 April 2022, 13–21 October 2022

Counsel for the Applicant: Mr Cummings SC (12–20 October 2020 and 28 March–7 April 2022) with Ms Lioumis (28 March–7 April 2022 and 13–21 October 2022)

Solicitor for the Applicant: Broaden Legal

Counsel for the First Respondent: Mr Archibald (12–20 October 2020), Litigant in person (28 March–7 April 2022), Mr Ahmad (13–21 October 2022)

Solicitor for the First Respondent: Metro North Legal (12–20 October 2020, 13–21 October 2022), Litigant in person (28 March–7 April 2022)

Counsel for the Second and Third Respondents: Mr Lloyd SC (12–20 October 2020), Mr Richardson SC with Mr Reynolds (28 March–7 April 2022 and 13–21 October 2022)

Solicitor for the Second and Third Respondents: MLH Lawyers

Counsel for the Intervenor: Mr Hodgson

Solicitor for the Intervenor: V Pty Ltd

Table of Corrections

18 October 2023 In Order 2 punctuation had been inserted.

18 October 2023 In Order 10 the date “17 October 2017” has been corrected to “29 June 2017”.

18 October 2023 In paragraph 3 the word “lead” has been replaced with “led”.

18 October 2023 In paragraph 6 the possessive apostrophe has been added in the word “parent’s”.

18 October 2023 In paragraph 666 the amount of “10,000” has been corrected to “9,284”.

18 October 2023 In paragraph 666 punctuation has been inserted following “$1,978,174” and prior to “The” and following “$1,161,785” and prior to “If”.
ORDERS

SYC 196 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS WEI

Applicant

AND:
MR XIA

First Respondent

MR B XIA

Second Respondent

MS SIANG

Third Respondent

V PTY LTD
Intervenor

ORDER MADE BY:

HARPER J

DATE OF ORDER:

16 AUGUST 2023

THE COURT DECLARES THAT:
1.The Applicant Wife (“wife”) and the First Respondent Husband (“husband”) hold, or at all material times held, on trust for the Second and Third Respondents (“parents”):
(a)36 per cent of M Street, Suburb N (“M Street”); and
(b)30 per cent of O Street, Suburb P (“O Street”); and
(c)29 per cent, being $669,900, of the net proceeds of sale of Q Street Suburb N (“Q Street”).

2.The wife owns 19 of 100 shares in C Pty Ltd (“C Pty Ltd”).

THE COURT ORDERS THAT:
3.Within 60 days, the wife and the husband (“spouse parties”) shall do all acts and things and sign all documents necessary to cause the following properties:
(a)2 D Street, Suburb E;
(b)M Street; and
(c)O Street

(“the properties”)
to be listed for sale by way of public auction with an agent to be agreed upon between them or, in default of such agreement for more than 14 days, with an agent appointed by the President of the Real Estate Institute of NSW or their nominee (“the agent”) whose decision shall be final and binding upon the parties, in the following manner:
(d)That such auction take place within six weeks from the date of placing the properties for sale by public auction or as soon as possible thereafter;
(e)That the reserve price for such auction shall be as agreed between the spouse parties or failing agreement for more than seven days, as determined by the selling agent, and in that event the parties shall agree to such reserve price;
(f)That the spouse parties shall equally pay all auction expenses as requested by the selling agent as and when they fall due;

(g)That the spouse parties shall do all such acts and things as may be necessary or recommended by the selling agent to properly present the property for sale and make it available for inspection by prospective purchasers;
(h)That any party shall be at liberty to bid for the purchase of the properties at auction;
(i)That the spouse parties shall attend at the auction sale and in the event that the properties are not sold at such auction, then the parties shall if necessary, negotiate with the highest bidder at auction if the reserve price is not reached;
(j)That the wife shall instruct the agent that all communication regarding the sale is to be in writing, or if verbal to be confirmed in writing, and to both parties jointly;
(k)That the spouse parties shall each co-operate in every way with the agent including (without limiting the generality of the foregoing):
(i)Making keys available to the agent;
(ii)Allowing inspection of the properties at all reasonable times requested by the agent;
(iii)Doing or saying nothing to hinder or prevent a sale being effected;
(iv)Ensuring the properties, including the grounds, are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
(v)Signing all documents requested by the agent in relation to the listing for sale of the properties including but not limited to an agency agreement, except a contract or agreement for sale which has not been authorised by the parties’ solicitors.

(l)That the wife shall instruct such solicitor as is agreed between the parties and failing agreement to be selected by the wife from a list of three solicitors proposed by the husband (“the solicitor”) and the solicitor shall be instructed to include both parties in all communications, and in the absence of the wife making such nomination, the solicitor shall be nominated by the husband; and
(m)That the spouse parties shall each execute a contract for sale in the form prepared by the solicitor having conduct of the sale.

4.In the event any of the properties fails to sell by public auction on the first occasion, such property shall continue to be auctioned (unless otherwise agreed between the parties in writing) at intervals of six (6) weeks or as otherwise recommended by the agent for the best price reasonably obtainable, and for the purposes of any subsequent auction the provisions of Orders 2(e)–(m) shall apply.
5.Upon settlement of the sale of each of the properties, the parties shall do all acts and things and sign all documents as shall be necessary to cause the proceeds of sale to be applied in the following manner and order:
(a)in payment of the costs of and incidental to such sale, including legal costs and disbursements, the agent’s commission, and sale expenses;
(b)in payment of council and water rates and adjustments together with any outstanding strata fees and outgoings;
(c)in reimbursement to either party for any expenses (agreed to in writing between the parties) associated with the sale such as advertising expenses or conveyancing fees;
(d)in discharge of any mortgage registered upon the title;
(e)payment to the parents, or at their direction:
(i)upon settlement of the sale of M Street, an amount equivalent to 36 per cent of the sale price of M Street after the deductions referred to in (a), (b) and (c) above but before discharge of any mortgage referred to in (d);
(ii)upon settlement of the sale of O Street, an amount equivalent to 30 per cent of the sale price of O Street after the deductions referred to in (a), (b) and (c) above but before discharge of any mortgage referred to in (d).

(f)in respect of each property, payment of the balance then remaining equally between the wife and the husband;
(g)from the husband’s share of the balance of the proceeds of sale of either M Street or O Street, whichever is first in time, in payment to the wife of one amount of $9,284.

6.Within 14 days of compliance with Order 5:
(a)the husband and the wife take all necessary steps and execute all necessary documents each to pay to the parents, or at their direction, one half of the following amounts:
(i)$699,000, being the amount held on trust for the parents from the net proceeds of sale of Q Street;
(ii)$77,420, being the refunded deposit arising from the rescinded purchase by the husband and wife of Z Street, Suburb OO;
(iii)$54,000, being the refunded deposit arising from the rescinded purchase by the husband and wife of GG Street, Suburb HH;

(b)the husband pay to the intervenor, V Pty Ltd, the amount of ~~$532,886.72~~ $492,886.72 together with any interest duly accrued thereon.

7.Except as provided to the contrary by these orders, the wife and the husband shall each:
(a)retain, to the exclusion of the other, all of their right, title and interest in any property, assets, goods or chattels as at the date of these orders;
(b)be responsible for any debts or other liabilities in their name as at the date of these orders.

8.Unless otherwise agreed in writing between the parties, within 28 days of the date hereof, the Third Respondent pay, or cause to be paid, to the wife the amount of $712,500.
9.Simultaneously upon compliance with Order 8, the wife take all necessary steps, including the execution of all necessary documentation, to transfer to the Third Respondent her C Pty Ltd shareholding.
10.Order 9 made on 29 June 2017 ~~17 October 2017~~, and any accrued, but unsatisfied, liability of the husband pursuant to the said order, be discharged forthwith.
11.Any application seeking an award of costs is to be filed and served with an affidavit in support within 21 days of the date of these orders, and in the event no application is filed within the time specified, there shall be no order as to costs.
12.All outstanding applications be otherwise dismissed.

THE COURT NOTES THAT:
A.These orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wei & Xia has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

INTRODUCTION

[1]

CENTRAL DISPUTES, COMPETING RELIEF, SIGNIFICANT ENTITIES AND DEALINGS

[5]

Relief Sought by the Wife

[12]

C Pty Ltd

[15]

S Pty Ltd

[19]

L Pty Ltd, G Pty Ltd and the Xia Family Trust

[22]

Transfer of Properties and Payment to the Wife

[26]

Cash Payment

[28]

J Pty Ltd

[29]

Consequential orders

[30]

Relief Sought by the Respondents

[31]

BACKGROUND

[36]

“Off the Plan” Purchases

[106]

PROCEDURAL HISTORY

[113]

MATERIAL RELIED UPON

[133]

Expert evidence

[135]

PART VIII OF THE ACT

[136]

EVIDENTIARY ISSUES

[147]

The parties

[179]

Documentary Evidence

[201]

Inferences and Documents

[228]

Country F Legal Concepts

[233]

ASSETS, LIABILITIES AND FINANCIAL RESOURCES AT THE DATE OF THE HEARING

[240]

BUSINESS ACTIVITIES IN COUNTRY F AND THE SOURCE OF COUNTRY F FUNDS

[266]

The “family business” and JJ1 Pty Ltd

[267]

Profits, shareholdings and employment positions

[280]

KK Street

[360]

Items 1, 6, and 7 – D Street, 2 D Street and LL Pty Ltd

[401]

1 MM Street

[422]

2 MM Street

[425]

Item 2 – M Street

[426]

Loan Approval – Late 2011

[436]

Item 3 – O Street

[439]

Q Street

[444]

Items 6 and 7 – Shareholding in C Pty Ltd

[467]

Item 8 – Xia Family Trust and J Pty Ltd

[469]

Item 9 – NN Pty Ltd

[560]

Z Street and GG Street

[573]

Conclusions and asset pool

[574]

CONTRIBUTIONS

[577]

Section 79(4)(a)–(d)

[581]

(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and

[592]

Section 106B

[595]

ASSESSMENT OF CONTRIBUTIONS

[635]

SECTION 79(4)(E): THE MATTERS REFERRED TO IN SUBSECTION 75(2) SO FAR AS THEY ARE RELEVANT

[641]

(a) the age and state of health of each of the parties

[642]

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

[643]

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

[646]

(d) commitments of each of the parties that are necessary to enable the party to support

[646]

(i) himself or herself; and

[646]

(ii) a child or another person that the party has a duty to maintain;

[646]

(e) the responsibilities of either party to support any other person;

[646]

(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation

[646]

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken in to account

[648]

CONCLUSION AND ORDERS

[652]

WHETHER THE PROPOSED ORDERS ARE JUST AND EQUITABLE

[667]

COSTS

[672]

CONCLUSION

[674]

SCHEDULE “A” – MATERIAL RELIED UPON BY THE PARTIES

186

ANNEXURE “A” – AMENDED ORDERS SOUGHT BY THE WIFE

188

ANNEXURE “B” – ORDERS SOUGHT BY THE HUSBAND

191

ANNEXURE “C” – ORDERS SOUGHT BY THE PARENTS

193

HARPER J
INTRODUCTION

These are property proceedings under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) between the Applicant Wife, Ms Wei (“wife”), the Respondent Husband, Mr Xia (“husband”), the Second Respondent, Mr B Xia, the husband’s father (“father”) and the Third Respondent, Ms Siang, the husband’s mother (“mother”). I will refer to the second and third respondents collectively as “parents”.
V Pty Ltd was joined to the proceedings as an intervenor on 13 October 2022 (“intervenor”), being a creditor of the husband for unpaid legal fees pursuant to a judgment in the Supreme Court of New South Wales.
The proceedings have an inherent complexity exacerbated by numerous disruptive factors, including the COVID-19 pandemic, the extended period over which the final hearing had to be conducted, the volume of material relied upon by the parties, the difficulties presented by the form and nature of the documentary evidence and the way the oral evidence was given by witnesses, and the way the competing cases were put by the parties more generally. The documentary evidence runs to thousands of pages, much of which was in Country F Language accompanied by a translation and required detailed individual examination. Important or relevant connections between widely distributed pages were not made clear in submissions. The husband, some interpreters and witnesses appeared remotely. There were persistent problems with the Microsoft Teams platform. The interpretation of oral evidence, given in Country F Language, was often problematic. For example, all the cross-examination of the wife conducted on the morning 14 October 2020 was struck out by agreement because the integrity of the answers was compromised by doubts over the accuracy of interpretation. The transcript extends to over 1,000 pages. As will become apparent, the factual issues were often more obscured than illuminated by the evidence of the witnesses. As the proceedings evolved into their final form, a material number of issues either were exposed as red herrings, were not pursued, or were not clearly addressed in final submissions. These problems combined to cause inordinate time consuming difficulty in considering the evidence as a whole and formulating judgment, and resulted in delay to the delivery of judgment. It has also led to the view that the reader would be assisted by a Table of Contents in finding a traversable path through the complexities of the material and circumstances considered in the judgment.
It is helpful to give an overview of the central areas of dispute and the relief sought. This will also provide a simplified framework for understanding the differing cases propounded for determination and some of the most important issues.
CENTRAL DISPUTES, COMPETING RELIEF, SIGNIFICANT ENTITIES AND DEALINGS
Apart from the assessment of contributions required by s 79 of the Act, there were three central areas of dispute which can be summarised as follows.
Firstly, there is a factual dispute between the wife and the respondents concerning the source of funds used to acquire properties in Australia. There was no dispute a large amount of the money, totalling some $13,551,604.98, came from Country F for this purpose (“the Country F funds”). The respondents all claim these funds were derived from the parent’s personal accounts through their corporate business interests and activities conducted over many years. The wife contends it was derived from the husband’s “share of profits”, and remuneration for his employment or involvement in the corporate interests of the parents as a shareholder, or alternatively, from what she described as “matrimonial assets”.
Secondly, the parents claim that the spouse parties hold on resulting trust for them several properties and certain other monies.
Thirdly, there was a significant debate concerning an investment in what was called J Pty Ltd, a project at PP Street, Suburb QQ (“J Pty Ltd”). A special purpose vehicle, eventually called H Pty Ltd (“H Pty Ltd”), was used for this project by third parties to the litigation and by L Pty Ltd (“L Pty Ltd”) as trustee of the Xia Family Trust, as a joint venture partner holding 25 per cent of the shares in J Pty Ltd.
The Xia Family Trust is a “non-exhaustive” discretionary trust of which the wife, the husband and the parents were originally discretionary objects. The wife claims that the spouse parties borrowed money from the parents and used joint matrimonial funds to invest in this development, and that she has been excluded from an entitlement to profits derived from it by the husband and the parents. The husband and the parents claim the Xia Family Trust was the direct investor in J Pty Ltd and entitled to the profits. The wife claims a number of dispositions were made by the respondents collusively to place the profits of this venture, as matrimonial assets, out of her reach and to defeat anticipated orders of the Court. In relation to these dispositions, the wife sought relief pursuant to s 106B of the Act, with a range of consequential orders, as explained shortly.
As will be explained, I have concluded that the wife has failed to establish her claims in respect the first and third areas, while the parents have been only partially successful in relation to the second area. There were other issues of varying importance, which will be discussed in the course of these reasons.
It is helpful next to summarise the competing relief sought, as a way of introducing, apart from the parties, the most relevant entities and dealings associated with them.
Relief Sought by the Wife
The orders sought by the wife were modified at several points during the proceedings. She provided to the Court and the other parties a proposed minute of final orders on 12 October 2020, which became Exhibit “A”. This relief contained 30 prayers for relief. However, in her final submissions in writing, dated 20 October 2022, her proposed final relief appeared to be further amended, or to revert to the relief proposed in her Case Outline received on 9 October 2020, seeking 26 orders. There were material differences between the relief sought in Exhibit A and the wife’s final submissions in writing. This created some confusion because in final submissions the parents, and by adoption the husband, addressed the relief sought in Exhibit A. I will therefore assume, despite the confusion, that the prayers for relief sought by the wife in Exhibit A are those she presses on a final basis. The wife’s final proposed orders are detailed in Annexure “A,” set out at the conclusion of this judgment.
In summary, the wife seeks an exercise of discretion to divide the spouse parties’ property pursuant to s 79 of the Act. It was ultimately the wife’s case that contributions should be assessed as 60 per cent in her favour with an additional 10 per cent adjustment in her favour for the matters to be considered pursuant to s 79(4)(e) of the Act. Accordingly, she claims the property of the spouse parties should be divided 70 per cent in her favour.
However, this is where the third main area of debate comes into play. For the purposes of settling the pool of assets available for division, the wife sought extensive additional relief, based upon broad allegations of collusive conduct between the husband and his parents to place marital assets beyond her reach. She seeks extensive orders pursuant to s 106B of the Act, including consequential orders for the husband and his parents to give an accounting in respect of a number of companies and trusts. It is helpful to summarise the main elements of these claims at this point.
C Pty Ltd
First, the wife seeks an order setting aside the transfer to his parents by the husband of his shares in C Pty Ltd on or about 2 July 2014 (Exhibit A, paragraph 2), with a notation that the husband held 61 of 100 issued shares prior to the disposition (Exhibit A, paragraph 1). In addition the wife seeks orders for the husband and his parents:
(a)to cause his resignation as a director of C Pty Ltd, the transfer of his shareholding to her, her appointment as a director, and the provision of company records and certificates of title to real estate (Exhibit A, paragraph 5); and
(b)to be required, pursuant to s 106B, to account to the wife for all revenue, capital or other benefit received by C Pty Ltd from 2 July 2014 to date (Exhibit A, paragraph 4).
C Pty Ltd owns D Street, Suburb E. The agreed value of D Street is $3,750,000.
There was no dispute that the wife presently holds 19 of 100 the issued shares in C Pty Ltd, the father owns 41, and the mother 40 of 100 issued shares. Prior to a share transfer on or about 2 July 2014, there was also no dispute the husband owned 61 of the issued shares, the wife owned 19, and the parents owned 20 shares. If the share transfer on 2 July 2014 is set aside, and the husband’s shares are transferred to the wife, on any view she will hold beneficially a maximum of 80 of 100 issued shares. The parents would retain 20 shares.
I note here that the parents and the husband, for their part, seek a declaration that the wife holds her 19 shares in C Pty Ltd on trust for the parents, and an order that she transfer her shares to the mother.
S Pty Ltd
Secondly, the wife seeks an order setting aside the transfer to his parents by the husband of his shares in S Pty Ltd on or about 5 July 2016 (Exhibit A, paragraph 7), again with a notation that the husband was a shareholder and director prior to the disposition (Exhibit A, paragraph 6), together with an order for the husband and his parents to execute all documents necessary effect the setting aside order (Exhibit A, paragraph 8)).

S Pty Ltd was incorporated in early 2016, with the husband initially registered as sole director and shareholder. It appears the relevance of S Pty Ltd arises in two ways. First, it was trustee of the S Pty Ltd Family Trust, in which the husband and his parents were and are the beneficiaries. The parents are the appointors. The wife was not a beneficiary. Secondly, in early 2016 a company called NN Pty Ltd was incorporated, in which S Pty Ltd owned 20 per cent of the issued share capital for a short time. The wife claimed that NN Pty Ltd owned development property in the Suburb RR area and continues to hold strata units.
The wife then seeks an order in the nature of an accounting by the husband and his parents for all revenue, capital, or other benefit received by S Pty Ltd, from 31 March 2016 to date (Exhibit A, paragraph 9), as well as an order that the husband do all things and sign all documents necessary to transfer to the wife all his share and interest in S Pty Ltd, and further provide to the wife all documents, statements, minutes, financial records, certificate of title of any properties owned by the S Pty Ltd (Exhibit A, paragraph 10).
L Pty Ltd, G Pty Ltd and the Xia Family Trust
Thirdly, the wife seeks to set aside a group of dispositions relating to the Xia Family Trust by various notations and orders. She seeks a notation that the Xia Family Trust was established by deed in June 2015, with G Pty Ltd as trustee, with the husband as sole director and shareholder, and the husband and his father as the appointors (Exhibit A, paragraph 11). However, there was ultimately no dispute that L Pty Ltd was the original trustee of the Xia Family Trust on 11 June 2015, not G Pty Ltd, which had only replaced L Pty Ltd as trustee by 8 April 2016. The husband and wife were sole directors and shareholders of L Pty Ltd. There was no dispute that the husband and his father were the original joint appointors of the Xia Family Trust. Next, the wife sought a notation that SS Pty Ltd (“SS Pty Ltd”), registered in mid-2019 with equal issued share capital to the parents, and the father as the sole director, was on the same day appointed trustee of the Xia Family Trust (Exhibit A, paragraph 12), replacing G Pty Ltd. This too was undisputed.
The wife then seeks, pursuant to s 106B of the Act, two important orders: the first, setting aside the transfer to his parents by the husband of his shares in G Pty Ltd on or about 9 August 2016 (Exhibit A, paragraph 13), with a consequential order that the respondents sign all necessary documents to remove the husband as director and appoint the wife as sole director (Exhibit A, paragraphs 15 and 16), and the second an order that father’s exercise of his power of appointment appointing SS Pty Ltd as trustee of the Xia Family Trust be set aside (Exhibit A, paragraph 14). It appears the intended effect of these orders would be to put the wife in ownership and control of G Pty Ltd, and return G Pty Ltd as trustee of the Xia Family Trust.
The wife further seeks a notation that the husband and the father were the original appointors of the Xia Family Trust until 30 June 2018 when the trust deed was amended to make the father the sole appointor (Exhibit A, paragraph 17), an order pursuant to s 106B of the Act setting aside the amendment making the father to sole appointor (Exhibit A, paragraph 19) and an injunction restraining the father from altering the identity of the appointor pending implementation of the wife’s orders (Exhibit A, paragraph 18).
The wife further seeks a declaration that the Xia Family Trust was and is the “alter-ego” of the husband (Exhibit A, paragraph 20), and that upon becoming sole shareholder and director of G Pty Ltd, she exercise the trustee’s discretion to distribute income and capital in accordance with the trust deed and the trustee’s discretion (Exhibit A, paragraph 21). She does not specify to whom any distribution should be made. In addition she seeks an order for the provision of records of the trust including certificates of title to real property and an accounting of all benefits received by the husband and his parents from 11 June 2015 to date (Exhibit A, paragraphs 22 and 23).
Transfer of Properties and Payment to the Wife
The wife then seeks an order that the husband and his parents take all necessary steps to discharge any mortgage or encumbrance, including tax impost, over the following properties of which the wife and husband are registered proprietors as joint tenants, together with a transfer of sole ownership to the wife:
(a)2 D Street, Suburb E (“2 D Street”), which has an agreed value of $4,650,000 with a mortgage of $1,072,103;
(b)M Street, Suburb N (“M Street”), which has an agreed value of $2,775,000 with a mortgage of $1,193,585; and
(c)O Street, Suburb P (“O Street”), which has an agreed value of $510,000 with a mortgage of $303,580.
(Exhibit A, paragraphs 24–25)
It can be pointed out immediately that the husband and wife own 2 D Street. The parents claim no interest in the property. Ultimately, the question will be whether either spouse retains the property or it is sold with some appropriate division of the proceeds. I will return to M Street and O Street below.
Cash Payment
The wife also seeks a cash payment from the husband of $1,900,000 (Exhibit A, paragraph 26).
J Pty LtdJ Pty Ltd
In her submissions, the wife described J Pty Ltd as a “key component” of her case, in particular the way it was procured and funded, the acquisition and disposition of the profits derived from the development. By way of relief, the wife seeks an order compelling the husband and his parents to transfer to her all monies held on trust arising from the sale of the J Pty Ltd (Exhibit A, paragraph 27).
Consequential orders
The wife also sought that she be appointed pursuant to s 106A of the Act to execute documents in the event the respondents failed to do so, leave to amend her application for final orders upon further disclosure being given, and costs on an indemnity basis.
Relief Sought by the Respondents
It is convenient to record the proposals of the husband and his parents together, since they are closely aligned, and the husband embraced the orders sought by his parents. The husband’s final proposal was not entirely clear apart from contending he was entitled to 60 per cent of the matrimonial asset pool. For completeness, the orders which the husband originally sought in his Case Outline emailed on 11 October 2020 are set out in Annexure “B”, whilst the parents sought the orders set out as Annexure “C.”
However, I note here that in submissions the husband contended that contributions should be assessed as to 60 per cent in his favour, with an adjustment in favour of the wife under s 79(4)(e) of the Act by reason of her ongoing care of the child of the marriage.
Beyond that, the parents seek declarations that the wife and the husband hold on trust for them the following assets:
(a)M Street;
(b)The net proceeds of sale of the property Q Street Suburb N NSW Folio Identifier … (“Q Street”), being $2,095,319.46;
(c)O Street;
(d)Refunded deposits arising from the rescinded purchase by the husband and wife of properties purchased off the plan, particularly the following properties:
(i)Z Street, Suburb OO, NSW in the sum of $77,420; and
(ii)GG Street, Suburb HH, NSW in the sum of $54,000; and
(e)The wife’s 19 shares in C Pty Ltd.
As relief consequential upon these declarations, the parents seek a payment from the wife of $680,000, and from the husband and wife jointly and severally, a payment of $2,226,739.46, being the total of the amounts in (b) and (d) above, with both amounts to be secured by a charge on 2 D Street.
I note here that it was the common position of all parties that the wife’s applications for relief pursuant to s 106B should be dealt with all other issues in the proceedings. This was appropriate where findings of credibility are important which they were in this case, as explained later, and “all factors bearing upon the discretion may not be identified until the completion of the final hearing” (VC & CG (2010) FLC 93-434 at [153] and [159]. See also Halabi v Artillaga (1994) FLC 92-470).
BACKGROUND
As the hearing evolved some evidence was admitted against the husband and not against the parents. Ultimately it was not made clear in submissions whether this made any material difference to any findings the Court was asked to make. However, in setting out the background I will note where evidence was not admitted against all parties.
The husband was born in 1974 in Country F and is currently 48 years of age. He is currently residing in Country F in a three bedroom apartment which he asserted is owned by the parents, and claims he is unemployed.
The wife was born in 1976 in Country F and is currently 47 years of age. The wife listed her occupation as a homemaker.
There is one child of the marriage, X, born 2006, currently 16 years of age, who resides solely with the wife in Australia (“the child”).
The spouse parties do not agree on the date they were married, but do agree they registered a marriage certificate in Country F in mid-1997. The wife claimed that they were married on that date. The husband asserted that the 1997 marriage certificate was purely to facilitate the parties’ obtaining a visa in Australia and it was not evidence that the parties were married. Rather he claimed that the parties were not married until mid-2001. The spouse parties did not give any useful detail in their evidence which could help resolve this difference. I find that the husband and the wife were married by no later than mid-2001.
In mid-1996, the husband moved to Australia for a period of three months to study English before returning to Country F. He and the father obtained a temporary (Subclass 456) visa for this purpose. Exhibit N was a summary of the time spent outside Australia and in Country F by the husband between 1996 and early 2020, according to immigration records. In 1996, the husband spent 27 days outside Australia.
In mid-1997, the father and the husband travelled again to Australia. A business was purchased in Suburb TT. The precise identity of the purchaser was not clear. The evidence of the purchase price was mixed, $300,000 according to the husband, $250,000 according to the parents, or $200,000 according to the wife. It is unnecessary to resolve this factual difference. The important point is that there was no dispute that the funds used to purchase the business came from the parents in Country F, either from their personal financial resources or through their corporate interests. At or about the same time, the husband was granted a temporary working (Subclass 457) Visa. The wife claimed the father provided funds to purchase the business to assist the husband to obtain this visa.
Between 1996 and 1997, the wife worked in the UU Corporation of Country F in City VV. In 1997, the wife asserted she left her job in City VV and relocated to City WW. The husband travelled from Australia to Country F several times in 1997, spending a total of 230 days outside Australia that year. The wife lived with the husband and his family in City WW whilst she waited for approval of a 457 visa to relocate to Australia.
In early 1997, JJ1 Pty Ltd was established. This company has considerable importance for the purposes of this judgment. There was some confusion in the evidence about the date of establishment. This confusion provides a good example of the nature of the difficulties which much of the evidence presents in this case. The father stated he and the mother “registered” this company in early 1994 (Father’s affidavit filed 14 September 2020, paragraph 7). He exhibited a “Registration Document” issued by the “[Regulatory body], [Suburb XX]” which was admitted without objection. Like much of the documentary evidence, this document was written in Country F Language, accompanied by an English translation, with certification. It states that the company was established in early 1997 and its “Term of Business” was “[early] 1997 to [early] 2027”. It was put to the father in cross-examination that the company was registered in 1997, although the business had operated prior to that time (Transcript 30 March 2022, p.498 lines 15–21). When the father was asked about the Document, he first claimed never to have seen it before, notwithstanding it was exhibited to his own affidavit. However, subsequent questioning suggested that he had suffered some initial confusion because he looked at the translation written in English; he recalled having it interpreted to him in Country F Language, but also seemed to identify his signature on the Country F Language version. Later, when asked if he thought it was genuine, he said he did not know, because he had not signed it and he could not remember clearly when JJ1 Pty Ltd was registered in 1997 (Transcript 30 March 2022, p.507 line 17 to p.519 line 32). Although the oral evidence was not only unclear but surprising, ultimately there was no bona fide dispute about the date of registration and I accept the registration date of early 1997.
During 1998, the husband was present in Australia for all but 60 days. In or around early 1998, the wife obtained a spousal visa as a dependant under the husband’s subclass 457 visa and she relocated to Australia. The husband and wife first shared a three-bedroom apartment in Suburb TT together with the husband’s sister’s boyfriend and the boyfriend’s father, then moved into a rental property in Suburb YY
The husband gave evidence that in early 1998 the father said to him “if you find a good property for your mother and I to invest in please let me know and I will ask your mother to transfer the money to you to buy it” (Husband’s affidavit filed 6 October 2020, paragraph 13).
The wife’s evidence is that between 1998 and 1999 she worked with the husband in the Suburb TT business. The husband disputed this and argued that during this time the wife did not work, while he worked six days a week in the business. He was present in Australia during 1999 for all but 42 days. I am unable to resolve this factual difference and nothing material turns upon it.
In or around mid-1999, KK Street, Suburb E was purchased for $859,000. The husband and wife were recorded as registered proprietors as tenants in common in equal shares.
The husband and wife lived primarily at KK Street from 1999 until 2009, when they were in Australia, although there was probably a period at another property in Suburb N (1 MM Street), explained below. It was undisputed that the parents and the wife’s parents lived at KK Street from time to time when they visited from Country F.
In 2000, the business in Suburb TT was sold. The wife claimed the proceeds of sale were paid into the husband’s personal account. She gave no details in support of this assertion. The husband gave no evidence about the fate of the proceeds of sale. The parents’ position was that the business was sold for $200,000, which was less than the purchase price. There was no evidence which enabled this difference to be resolved, but nothing turns on this factual dispute.
During 2000, the husband was present in Australia for all but 83 days, in 2001 for all but 84 days, in 2002 for all but 34 days, and in 2003 for all but 28 days.
Between 2001 and 2003, the wife commenced two degrees in Sydney. She was granted a student visa, accordingly the parties were able to stay in Australia. The husband obtained a tertiary qualification. The wife completed her studies. However, the spouse parties’ application for a permanent visa was denied.
The spouse parties’ evidence with respect to the dates of their permanent residency applications again diverges. The husband deposed that in 2003 he was granted permanent residency in Australia, after which he sponsored the wife to receive permanent residency. The wife’s evidence was that in early 2004, the spouse parties were required to return to Country F while they awaited the outcome of their visa applications. Sometime after mid-2004, the wife claimed they were informed their permanent residency visa was approved, after which both parties returned to Australia on or around mid-2004. The husband claimed the spouse parties lived in Country F for the majority of 2004 and part of 2005. The immigration records showed the husband was outside Australia for 262 days in 2004, and 138 days in 2005. During this time, between 19 April and 24 May 2004, the wife underwent inpatient treatment for a mental health episode at the ZZ Centre, City WW. The spouse parties returned to Australia in mid-2005 and resumed living in the KK Street Property. Neither party provided evidence that would assist the Court in reconciling the differing accounts. It seems likely the spouse parties were resident in Country F in 2004 and the first half of 2005. I find that sometime prior to mid-2005, both spousal parties had been granted permanent residency in Australia.
The husband deposed that in 2004 he had a conversation as follows:
My father said: I want to invest in property in Australia to create future wealth for your mother and me. Can you arrange to set up a company in Australia for this purpose and I will provide you with the money to invest on our behalf?
I [husband] said: Okay. I will organise the paperwork and get things started.
My father said: I want you to call the company [C Pty Ltd] because I want to use the same name as [JJ1 Pty Ltd].
I [husband] said: Okay. I will do that.
(Husband’s affidavit filed 6 October 2020, paragraph 21)
In mid-2004, C Pty Ltd was incorporated. The services of Mr AB of AC Financial Services were engaged for the purpose. The husband was the sole director. Shares were issued by him as follows:
(a)51 shares to the husband;
(b)19 shares to the wife;
(c)10 shares to the father;
(d)10 shares to the mother;
(e)5 shares to the husband’s sister, Ms AD; and
(f)5 shares to the husband’s brother in law, Mr AE.
In 2004 or 2005 the husband deposed that he helped his parents obtained a long term visa to migrate to Australia. In cross-examination, the father did not know the precise year of their migration, but agreed that 2009 was more or less correct. It is unclear what type of visa the parents were issued.
In 2005, the wife found out she was pregnant, and her parents moved to Australia to assist her during the pregnancy and with the care of the child.
In mid-2005, a two bedroom apartment located at 2 MM Street, Suburb N (“2 MM Street”) was purchased for $698,000 and registered in the husband’s sole name.
In early 2006, the two blocks of land at D Street and 2 D Street were purchased for $800,000 and $970,000 respectively. The husband and the wife were the registered owners of 2 D Street and C Pty Ltd was registered as owner of D Street. Construction of dwellings was subsequently undertaken at both properties.
The child was born 2006 in Sydney. It was the husband’s oral evidence that the spouse parties lived in 1 MM Street for several years after it was purchased and the child was born, during which time the dwellings at D Street and 2 D Street were built. After the spouse parties moved into 2 D Street, 1 MM Street was rented out until it was sold.
In mid-2006, the wife claimed that the husband applied to set up JJ4 Ltd. This company will be mentioned again later.
The husband was present in Australia for all but 34 days in 2006.
In or around late 2007, M Street was purchased for $1,250,000 and registered in the names of the joint names of the husband and the wife. The purchase was financed in part by a mortgage of $800,000 for which the husband and wife were jointly and severely liable.
The wife deposed that between 2007 and 2009 she was living primarily in Country F working for JJ1 Pty Ltd where she had an office. I return to this later in these reasons. According to Exhibit N, the husband was outside Australia in 2007 for 101 days comprised of three trips to Country F, and in 2008 for 289 days comprised of six separate trips to Country F.

In 2009, the husband and the wife commenced residing in 2 D Street, while D Street and KK Street were rented out.
On 3 April 2009, the husband’s sister and brother in law transferred their respective five shares in C Pty Ltd to the husband.
In 2009, the wife suffered a miscarriage. The wife was treated for the miscarriage at AG Hospital. Although these facts were not made the subject of any bona fide dispute, the evidence was not pressed against the parents.
In 2009, the husband was outside Australia for 164 days, comprised of eight trips. In 2010 the husband was outside Australia for 257 days, comprised of five trips, and in 2011 for 72 days, comprised of four trips.
It was the wife’s case that from 2009, the parents began living in Australia, while the husband continued to travel to Country F to run the family businesses, of which he was in “total control”. The husband and father did not concede this in cross-examination. The husband claimed that whilst it was necessary for him to spend at least two years out of five in Australia to obtain a visa extension in Australia, he continued to travel back and forth to Country F. I will return to this later in these reasons.
1 MM Street was sold in 2010 for $857,000.
In 2012, the wife found out she was pregnant. She was hospitalised for a number of days in 2012 for treatment of an episode of mental ill-health. Following her discharge, the wife underwent an abortion. Again although not in dispute, this evidence was not pressed against the parents
In 2012, the husband was outside Australia for 75 days comprised of four trips. The wife gave evidence that in 2012, the child was accepted into school in Australia, and the wife remained living predominantly in Australia.
In or around mid-2012, the purchase of O Street was settled at the price of $435,000. O Street was financed, in part, by a mortgage of $304,500, obtained by the husband and the wife. O Street was and continues to be rented.
The husband was outside Australia in 2013 for 242 days, comprised of six trips.
In 2013, the wife deposed that she contracted a sexually transmitted infection from the husband. The wife claimed she suffered a depressive episode and informed the husband she was considering divorce. This evidence was not pressed against the husband.
In or around late 2013, KK Street was sold for approximately $1,510,000.
In May 2014, the wife gave evidence that she visited the AH Bank in Suburb N, and discovered that jewellery stored in the safe had been removed. The wife’s evidence is that the husband informed her that the jewellery had been placed in a safe in City WW. While the location and value of jewellery was the subject of contest early in the trial, by the end of the trial no submissions were made about jewellery and it became a red herring.
In about mid-2014, the purchase of Q Street settled for a price of $1,370,000. A mortgage was taken out over Q Street and cross collateralised with 2 D Street in the name of the husband and the wife. Q Street was rented until August 2017 and was sold for $2,310,000 in early 2019.
On 2 July 2014, the husband transferred his 61 per cent shareholding in C Pty Ltd to the parents.
On 20 August 2014, the husband’s 48.75 per cent shareholding in JJ1 Pty Ltd was transferred to the parents.
In or around 2014, the wife commenced work at AJ Pty Ltd. The wife became a manager, along with Mr AK and Mr AL, of AJ Pty Ltd’s new Suburb N office, the opening of which occurred in mid-2015.
In 2014, the husband was outside Australia for 233 days comprised of eight trips.
The wife’s parents were granted permanent residency in Australia in or around 2014.
In 2015, the husband spent a total of 277 days outside of Australia, however, as will become apparent later in these reasons it is important to note he was present in Australia between May and June 2015 when the negotiations for the investment in J Pty Ltd were being undertaken.
In mid-2015, L Pty Ltd was incorporated and the Xia Family Trust was established.
In around mid-2015, PP Street, Suburb QQ was purchased by AM Pty Ltd, which had two shareholders, L Pty Ltd as trustee for the Xia Family Trust (which held 250/1000 shares) and AN Pty Ltd (which held 750/1000 shares).
In June 2015, a number of agreements were entered into for the purposes of J Pty Ltd:
(a)L Pty Ltd, AN Pty Ltd, and AM Pty Ltd entered into a Shareholders Agreement, which had extensive provisions governing such matters as the holding of shareholder and directors’ meetings, pre-emptive rights on disposal of shares or securities, transfer of securities, and buyout of shareholders on default, for example by shareholder insolvency; and
(b)AO Pty Limited as vendor entered into a Share Sale Agreement with L Pty Ltd as purchaser for the purchase of 25 of AO Pty Limited’s 100 shares in AM Pty Ltd.
In June 2015, also for the purposes of J Pty Ltd, L Pty Ltd entered into a Subscription Agreement with AM Pty Ltd to subscribe for shares in AM Pty Ltd.
In or around July 2015, AM Pty Ltd changed its name to J Pty Ltd.
In or around mid-2015, L Pty Ltd, as lender, executed a Facility Agreement which set out the terms of a loan of $5,000,000 to J Pty Ltd as borrower, which also included a guarantee by a number of named individuals. This agreement provided for repayment one year from the date of drawdown. Recital B recorded that the loan was to settle the purchase of PP Street, Suburb QQ from AQ Pty Ltd.
In each of the agreements referred to in [87], [88], and [90] above, which I will call collectively “the [J Pty Ltd] transaction agreements”, L Pty Ltd was specifically described as “[L Pty Ltd] ATF [Xia Family Trust]”.
Over the course of nine trips, the husband spent a total of 233 days outside of Australia in 2016.
In early 2016, the wife was involved in an accident in Country F, after which she was hospitalised and remained in Country F for six months.
In early 2016, the Discretionary Trust Deed for the S Pty Ltd Family Trust, with S Pty Ltd as trustee, was settled.
In April 2016, L Pty Ltd’s shares in J Pty Ltd were transferred to G Pty Ltd. As noted earlier, in April 2016, G Pty Ltd was appointed as trustee of the Xia Family Trust in the place of L Pty Ltd. The husband was the sole director and shareholder of G Pty Ltd.
In mid-2016, an exchange took place between the husband and the wife at M Street regarding access to the apartment. The police were called to attend by the wife. On the same date a provisional Apprehended Domestic Violence Order (“ADVO”) was issued to the husband, and a final ADVO was issued in mid-2016 for a period of three months. The wife and the child were listed as protected persons. This evidence was not pressed against the parents. The husband also transferred his shares in G Pty Ltd to his parents on or about 9 August 2016
In late 2016, J Pty Ltd was sold to AP Pty Ltd by way of a call option deed for $50 million and a service agreement fee for $5 million was paid to J Pty Ltd. J Pty Ltd then received payment of $55,000,000 between late 2016 and mid-2017.
It appeared uncontentious that between late 2016 and mid-2017 G Pty Ltd received $10,433,021 as its share of the proceeds of sale received by J Pty Ltd. Between mid-2017 and early 2018 the Xia Family Trust received distributions of $4,778,686. Then in mid-2018 the Xia Family Trust received a further dividend plus some interest totalling $5,732,815.48. This was used to pay liabilities such as capital gains tax.
A further incident occurred between the husband, the maternal grandparents and the child outside of the child’s school in early 2017. The wife reported the incident to the police. In early 2017, a provisional ADVO was issued to the husband, with the wife, the child, and the wife’s father named as the protected persons. In mid-2017, a final ADVO was issued for six months. This evidence was not pressed against the parents.
The spouse parties separated on a final basis on 30 July 2017 and were divorced in mid-2018.
The husband was outside Australia in 2017 for 254 days over the course of seven trips.
In 2018 the husband returned to live in Country F.
By Deed of Variation dated 30 June 2018, the trust deed of the Xia Family Trust was varied, whereby the parents became the named beneficiaries. The classes of eligible beneficiaries continued to include children of the named beneficiaries, which meant the husband, and spouses of such children. In the trust deed “spouse is defined as follows: “Spouse includes a person not legally married to a second person where that person is living with the second person as his or her spouse on a permanent and bona fide domestic basis.” By reason of the divorce in mid-2018, the wife therefore ceased to be a “spouse” and fell outside the class of eligible beneficiaries.
According to undisputed correspondence from AC Financial Services, distributions were made in the financial year ended 30 June 2018 to G Pty Ltd and the mother. G Pty Ltd fell within the class of beneficiaries of the Xia Family Trust as a company of which the parents were shareholders or directors. The mother also received a distribution of 100 per cent of the distributable income for the year ended June 2019.
The husband has since remarried and has two children of that relationship. The husband resides with his wife and their children in Country F. The husband has spent the majority of time outside of Australia since 2018.
“Off the Plan” Purchases
A number of off the plan purchases were made in 2015. It is convenient to set out the evidence concerning these purchases together in a separate section of these reasons, for ease of reference.
The wife claims these purchases were undertaken with the husband’s consent. The husband’s evidence is that the wife withdrew a total $771,033 from Westpac Loan account …80, of which $600,000 form a part, without his knowledge or consent between 20 February 2014 and 30 April 2014. I allowed this evidence over objection to prove the withdrawals were made, but not as evidence that they were made by the wife. But ultimately there was no dispute that the wife withdrew $600,000 on 26 March 2014 from …80, which was then transferred to her Westpac account …58. As will be explained in more detail later, …80 was a loan facility drawn down and secured against 2 D Street, and the wife made these withdrawals after the debit limit was increased by Westpac to $1,200,000 from a limit of approximately $385,000. Thus the funds withdrawn by the wife were borrowed from a jointly owned debit facility of the spouse parties. According to a Westpac printout of the spouse parties’ accounts as at 9 April 2014 (Exhibit E, p.350) as at that date …58 held a credit balance of $687,357.68. The wife’s evidence is that the withdrawal was in anticipation of the purchase of a property in Suburb AR. She contended that she made the withdrawals with the knowledge and the consent of the husband. The father gave evidence that the amount withdrawn was $680,000.
The wife then claimed that the attempt to purchase the Suburb AR property was unsuccessful and in mid-2014, she transferred $500,000 from the $600,000 into her parents’ bank account, purportedly due to higher interest accruing in that account. The wife claimed to have used this money transferred to her parents’ account to enter into a number of other purchases “off the plan” which were ultimately unable to be settled. In addition, the wife claimed to have transferred $100,000 into her AH Bank account and $60,000 into a term deposit account. The remainder of the money was applied towards the repayment of credit card debt and expenses.
The wife’s mother gave evidence that after the accident in Country F in 2016, the wife asked her to withdraw some of the money taken for the Suburb AR purchase and give to the wife’s friend Ms AS to pay medical expenses. The wife’s mother then conceded she transferred $70,500 to Ms AS in early 2016, but the wife told her this money was used “for her friend’s deposit to purchase off-the-plan property”. The wife’s mother stated she paid a total of $514,007.97 between September 2014 and July 2017 for the wife’s credit cards, off-the-plan deposits, the wife’s friend Ms AS and stamp duty from funds in accounts ultimately derived from the $500,000 transferred by the wife to her parents’ accounts in mid-2014, which had been initially borrowed from …80.
The failed “off the plan” purchases were:
(a)In or about late 2014, AT Property was purchased off the plan in the husband and the wife’s names with a deposit of $52,920 from their joint account. In mid-2018, the contract was terminated and the deposit was forfeited.
(b)In or about early 2015, GG Street Suburb HH was purchased in the wife’s parents’ names with a deposit of $54,000 from the spousal parties’ joint Westpac offset deposit account …85. The contract for this property was rescinded in or about early 2019 and an amount of $55,624.36 was refunded to the wife’s parents’ account. The parents claim the spouse parties hold this amount on trust for them.
(c)Also in early 2015, Z Street, Suburb OO (“Z Street”) was purchased off the plan in the husband and the wife’s names. In early 2015, the wife withdrew the deposit amount of $77,420 from account …85. According to the documentary evidence tendered by the father, in late 2017 the contract was rescinded and the deposit was refunded a short time later as follows:
(i)$68,990 was paid into the spouse parties’ Westpac Investment Loan Account No. …90;
(ii)$1,100 to the wife’s mother deposited to her Westpac Account No. …26;
(iii)$7,000 for agent’s commission; and
(iv)$330 for a conveyancing fee.
The wife gave evidence that “In about [late] 2017, I managed to on-sell [Z Street] and recouped $68,990 which was transferred to joint offset account” (wife’s trial affidavit filed 6 October 2020, paragraph 174). There was no documentary evidence given in support of this assertion. On either version, the refunded or on sale amount went into a joint account of the spouse parties. The parents claim the spouse parties hold $77,420 on trust for them by reason of this failed purchase.
Several other purchases should be noted in passing, since they show the wife’s financial involvement with her parents. In or about early 2015, AU Property, Suburb OO (“AU Property”) was purchased off the plan in the wife’s parents’ names with a deposit of $72,030. The deposit was paid from the wife’s parents’ account. In mid-2017, the property was resold and the wife claimed she recouped $50,788 which was transferred to the wife’s parents’ account.
In or about early 2015, AV Street, Suburb AW (“Suburb AW OTP”) was purchased off the plan with the wife and her mother as joint tenants, with a deposit of $122,000 paid from the wife’s parents’ account. In or around early 2019, the contract was terminated and the deposit was forfeited.
PROCEDURAL HISTORY
This matter has a long history having been commenced on 13 January 2017 by the wife seeking both property and parenting orders. The final proceedings were heard over three different periods in 2020, and twice in 2022, for a total of 23 days. The way this unusually long process evolved and a number of interlocutory orders have relevance to this judgment.
On 29 June 2017, Austin J made a “dollar for dollar” costs order in the wife’s favour against the husband in the following terms:
9. Pursuant to section 117 of the Family Law Act within seven days of any payment by or on behalf of the husband in payment of any accounts rendered by his solicitors or barristers in respect of these proceedings or rendered by his accountant, valuer or any other experts engaged by the husband in respect of these proceedings the husband shall pay or cause to be paid the same amount of money to the solicitors for the wife on behalf of the wife (“dollar for dollar cost order”).
During the proceedings, additional parties were joined. In particular, J Pty Ltd was named in the wife’s first Initiating Application but was later removed as a party, by consent on 17 October 2017. The parents were joined and remain as parties.
I made orders for disclosure on 24 May and 13 August 2019.
On 30 January 2020, the Court ordered the parties to engage in mediation with regard to the outstanding parenting disputes by no later than 20 June 2020. Final parenting orders were made by consent on 4 June 2020. It was ordered that the wife was to have sole parental responsibility in relation to child, and that the child was to live with the wife and attend school in Australia. The orders allowed for the husband to spend time with the child both during school terms and during school holidays. All outstanding applications for parenting orders were otherwise dismissed.
On 20 February 2020, the matter was listed for final hearing to commence on 12 October 2020 with an estimate of seven days.
On 25 June 2020, the wife filed an Amended Application in a Proceeding and supporting affidavit seeking orders that the husband pay the wife the sum of $18,617 and orders that he provide to her a range of documents pursuant to r 19.04 of the Family Law Rules 2004 (Cth) (“the 2004 Rules”). The wife contended that the husband and the parents had failed to comply with the injunctive order and the dollar for dollar costs order made on 29 June 2017 and their disclosure obligations.
On 6 July 2020, further orders were made with respect to disclosure and in relation to costs.
On 27 August 2020, the wife filed a Further Amended Application in a Proceeding seeking orders that the husband pay the wife $113,753 in accordance with the 29 June 2017 dollar for dollar order and additional procedural orders relating to the instruction and payment of the expert valuation of various properties located in Country F. On 28 August 2020, the husband filed a Response seeking that the dollar for dollar costs order be vacated and the wife’s application otherwise be dismissed.
The husband filed an Application in a Proceeding on 18 September 2020 seeking that Order 9 made on 29 June 2017 and Order 7 made on 31 August 2020 be vacated. The wife filed an Application in a Proceeding on 20 September 2020 concerning the failure of the husband to pay any amount pursuant to a dollar for dollar costs order. The husband filed a Response on 25 September 2020 seeking that Orders 1–6 of wife’s Application in a Proceeding be dismissed. Both Applications were mentioned on 28 September 2020 and stood over to the first day of trial on 12 October 2020.
The final hearing commenced on 12 October 2020. On day five, evidence was given during cross-examination by the wife concerning three safety deposits held in the names of the wife, the husband and the wife’s mother. The wife alleged that the husband removed from Australia large sums of jewellery. In response, the husband made an oral application for Anton Piller orders to restrain the wife and her mother in relation to the safety deposit boxes, on the inference that the jewellery in question possibly remained in Australia in one of the safety deposit boxes held in the name of the wife or her mother. The wife gave an undertaking which had the effect of restraining her from dealing with certain bank accounts and safety deposit boxes. On 16 October 2020, I ordered that by no later than 19 October 2020 the husband file and serve any Application in a Proceeding seeking orders in the nature of Anton Piller orders against the wife and any other person (Wei & Xia [2020] FamCA 894). No such application was filed by the husband.
On 20 October 2020, the Court varied Order (2)(b) made on 29 July 2017 to restrain the respondents, without the wife’s written consent, from causing C Pty Ltd to deal with D Street and G Pty Ltd or any successor trustee of the Xia Family Trust to disburse more than one-half of any monies received from J Pty Ltd or any capital or income to any beneficiary of the Xia Family Trust. The proceedings were adjourned part heard to 28 June 2021 with a further estimate of 10 days.

Section 81 of the Act requires me to make orders which as far as practicable will finally determine the financial relationships between the spouse parties and avoid further proceedings between them. This obliges the Court, as far as practicable, to make orders which separate the financial arrangements between the spouse parties. Complete severance is desirable, but not only between the wife and the husband. If the declaratory relief the parents seek alone is granted, they would remain in financial relationships with the spouse parties. It seems to me also that the transfer the wife’s 19 shares to the mother, as proposed, would be in the interests of all parties for this reason. In my view the only way to achieve finality and adjust the available property in accordance with my findings and conclusions about the interests of the various parties and the spouse parties’ contributions, is by a sale of all real property followed by an appropriate division of the net proceeds of sale after discharge of mortgages and selling costs.
The proceeds of the sale of Q Street were paid into accounts held by the spouse parties. There should be any order for the spouse parties to pay to the parents an amount equivalent to their share of those proceeds.
The evidence regarding Z Street and GG Street is set out above at [106]–[112]. The parents claim the forfeited deposits from the spouse parties. The wife made no submissions about this claim and the husband supported it. Although it was, on the evidence, the wife who caused the deposits to be paid in the first instance I will also declare the spouse parties hold these amounts on trust for the parents as tenants in common in equal shares, since no argument was made that the spouse parties hold these amounts other than on an equal basis. Orders should be made for the spouse parties to pay an equivalent amount to the parents.
The total net asset pool is $3,139,959. On a 63/37 percentage division the wife will be entitled to assets worth $1,978,174. The husband will be entitled to assets worth $1,161,785. If all properties are sold, and the spouse parties equally share the burden of discharging the mortgages, paying the entitlements of the parents, and the net proceeds are divided equally between the spouse parties subject to the wife receiving from the husband’s share $9,284 together with $712,500 as consideration for her 19 shares in C Pty Ltd, after the other liabilities are taken into account, the wife will receive 63 per cent of the matrimonial pool. I will make orders to achieve this outcome.
WHETHER THE PROPOSED ORDERS ARE JUST AND EQUITABLE
Although the parties agree that it would be just and equitable to make an order adjusting their property interests, s 79(2) requires the Court to be satisfied the proposed order itself is just and equitable by standing back from its preliminary determination (Manolis & Manolis (No 2) [2011] FamCAFC 105 at [65]–[66]).
The High Court in Stanford commented at [36] on the meaning of “just and equitable” as follows:
The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
(Footnotes omitted)
I also take account of the caution expressed in Stanford at [40] that to conclude that making an order is “just and equitable” only “because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act”.
Having “stood back” and reconsidered the proposed outcome in light of all matters discussed in these reasons, I remain satisfied it is just and equitable.
Each spouse will have the assets and liabilities as set out in the table below (figures rounded). I have assumed that each property will achieve the agreed value or more upon sale.

Assets and liabilities to be retained by the Wife

Value ($)

Share of net sales proceed of 2 D Street (assumed value $4,650,000)

$2,325,000

Share of proceeds of M Street (assumed value $2,775,000)

$1,387,500

Share of Proceeds of O Street (assumed value $525,000)

$255,000

Payment from husband

$9,284

Payment for shares in C Pty Ltd, 19/100 shares

$712,500

Subtotal

$4,689,284

Liabilities

Share of mortgage over 2 D Street

-$536,051

Share of mortgage over M Street

-$596,792.50

Share of mortgage over O Street

-$151,790

Share of payment to parents - 36% of M Street

-$499,500

Share of payment to parents - 30% of O Street

-$78,750

Share of payment to parents - 29% of Q Street

-$334,950

Loan from Ms DF and Ms DG

- $32,100

Loan from Ms DH

- $3,000

Loan from Ms DJ

- $159,100

Loan from Mr BL

- $60,000

Legal Fees owed to BK Lawyers

- $75,026

Legal Fees owed to Ms DK, Barrister

- $6,476

Legal Fees owed to Broaden Legal

- $111,864

Payment to parents of half of refunded deposit for Z Street

-$38,710

Payment to parents of half of refunded deposit for GG Street

-$27,000

Subtotal:

-$2,711,110

Net Assets

$1,978,174

Assets and liabilities to be retained by the Husband

Value ($)

Share of net sales proceed of 2 D Street (assumed value $4,650,000)

$2,325,000

Share of proceeds of M Street (assumed value $2,775,000)

$1,387,500

Share of Proceeds of O Street (assumed value $525,000)

$255,000

Subtotal Assets

$3,967,500

Liabilities

Share of mortgage over 2 D Street

-$536,051

Share of mortgage over M Street

-$596,792.50

Share of mortgage over O Street

-$151,790

Share of payment to parents - 36% of M Street

-$499,500

Share of payment to parents - 30% of O Street

-$78,750

Share of payment to parents - 29% of Q Street

-$334,950

Judgment debt in Supreme Court (legal fees)

- $532,887

Payment to parents of half of refunded deposit for Z Street

-$38,710

Payment to parents of half of refunded deposit for GG Pty Ltd

-$27,000

Payment to the wife

$9,284

Subtotal:

$2,805,715

Net Assets:

$1,161,785

COSTS

Although the husband and parents sought costs against the wife, and the wife sought her costs to be paid by the husband, costs were not the subject of final submissions.
In such circumstances, I will order that any party who seeks costs to file the relevant application within 28 days of these orders. However, while not precluding any application for costs, it is self-evident from these reasons that, among the considerations set forth in s 117(2A) of the Act no party has been wholly unsuccessful, or in other words, no party achieved the outcome they proposed. It may therefore be wondered whether any further litigation between these parties is worth pursuing, and whether the position found in s 117(1) should govern the position on costs.
CONCLUSION
For all the foregoing reasons, I am satisfied the orders set out at the commencement of these reasons should be made.

I certify that the preceding six hundred and seventy-four (674) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.
Associate:
Dated: 16 August 2023
SCHEDULE “A” – MATERIAL RELIED UPON BY THE PARTIES
According to her case outline emailed on 9 October 2020, the wife relied upon:
(a)Affidavit of Ms Wei filed 6 October 2020;
(b)Affidavit of Ms DL filed 6 October 2020;
(c)Affidavit of Ms W filed 6 October 2020;
(d)Affidavit of Mr AK filed 6 October 2020;
(e)Affidavit of Ms CQ filed 6 October 2020; and
(f)Affidavit of Ms CQ filed 6 October 2020;
(g)Financial Statement of Ms Wei filed 6 October 2020;
(h)Third Further Amended Initiating Application filed 19 July 2020.

The husband, in his case outline emailed on 11 October 2020, relied upon:
(a)Affidavit of Mr Xia filed on 6 October 2020 with Tender Bundle;
(b)Affidavit of Mr DM affirmed and filed on 7 October 2020;
(c)Affidavit of Mr Xia filed on 9 October 2020;
(d)Affidavit of Mr DN affirmed on 9 October 2020;
(e)Financial Statement filed on 9 October 2020; and
(f)Financial Statement Filed on 28 February 2017.

The parents, in their case outline filed on 9 October 2020, relied upon:
(a)Affidavit of Mr B Xia filed 14 September 2020 (with Tender Bundle); and
(b)Affidavit of Ms Siang filed 14 September 2020 (with Tender Bundle).

The parents additionally read into evidence:
(a)Affidavit of Mr B Xia filed 7 February 2022 with annexures; and
(b)Affidavit of Ms Siang filed 7 February 2022 with annexures.

The following documents were tendered and placed into evidence:

Exhibit Label Document Tendered by

1 Costs Notice dated 11 October 2020 2R and 3R

2 Costs Notice 12 October 2020 dated 14 October 2020 Husband

3 Bundle of wife’s tax returns for financial year 2016, 2017, and 2018 2R and 3R

4 Affidavit of wife filed 13 January 2017 2R and 3R

5 Bundle of screen shots of WeChat correspondence from wife 2R and 3R

6 Financial Statement of the wife filed 13 January 2017 2R and 3R

7 Costs notice dated 11 October 2020 Husband

8 Summary of History of Illness during First-time Admission – DO Health Centre, City WW Husband

9 Husband’s Tender Bundle Husband

10 Email from CW Accountants titled New Trust Setup – L Pty Ltd ATF Xia Family Trust dated 16 June 2015 Husband

11 Bundle of statements regarding 3 safe deposit boxes Husband

12 Proposed Anton Piller Order and table of withdrawals from Box D2331, EO6292, and A02051 Husband

13 Annexure A to Affidavit of father dated 20 February 2017 Husband

14 Affidavits of 14 October 2020 and 7 February 2020 of mother, together with notations therein 2R and 3R

15 Updated financial statement Husband

16 Settlement Statement of property Q Street Suburb N, settled in early 2019 2R and 3R

17 DR Bank Records 2R and 3R

18 Home affairs international movements 2R and 3R

19 Proposed Amended Minute of Orders 2R and 3R

20 Aide memoire, together with the bank statements (Annexure A to the affidavit of Mr DP filed on 4 November 2022) 2R and 3R

Court1 Joint Balance Sheet All parties

A Amended Orders Sought by the wife Wife

B Costs Notice dated 9 October 2020 Wife

C Schedule of objections Wife

D Bundle of wife’s material – objections Wife

E Bundle of exhibits to wife’s affidavit. Wife

F Outline of submissions for the wife in support of AIAP filed 25 March 2022 and in opposition to the husband’s AIAP filed 24 March 2022, with paragraph 18 to be withdrawn. Wife

G Page 1 and paragraph 9 of the affidavit of the father filed 7 February 2022 Wife

H List of paragraphs in the father’s 7 February 2022 affidavit. Note that all the paragraphs have been tendered by the Applicant and form part of her case. Include page 1 of the affidavit. Wife

I Document referred to at [117] of the father’s affidavit of 7 February 2022 – with English translation Wife

J Two messages from the father to the husband, at 8:44am and 7:57am, with English translations Wife

K Paragraph 25 and Annexure A to the affidavit of the father dated 20 February 2017 Wife

L Amended schedule of objections to husband’s affidavit Wife

M Husband’s affidavit filed 28 February 2017, page 28 paragraph 49 Wife

N Summary of husband’s movement records into and out of Australia Wife

O Updated Joint Balance Sheet All parties

P Husband’s Costs Notice of 20 October 2022 Wife

Q Email – list of affidavits relied upon in dollar for dollar costs Wife and Husband

R Aide memoire and bank statements Wife

S Bundle of exhibits to father’s affidavit 2R and 3R

T Bundle of exhibits to mother’s affidavit 2R and 3R
ANNEXURE “A” – AMENDED ORDERS SOUGHT BY THE WIFE
1.The court notes that prior to the disposition identified in order 2 below, the husband was the director of and held 61 shares in [C Pty Ltd] and that corporation was/is the legal owner of [D Street], [Suburb E] without any encumbrance.
2. Pursuant to section 106 B of the Family Law Act 1975 (Cth), that disposition by the husband by way of transfer of his shares in [C Pty Ltd] on or about 2 July 2014 to his parents, [Mr B Xia] and [Ms Siang] (3rd and 4th respondents), be set aside.
3. Within 7 days of making of order 2, the husband and his parents each do all such things and sign all documents necessary to give effect to order 2.
4. Pursuant to section 106 B of the Family Law Act 1975 (Cth), the husband and his parents be required to account to the wife for all revenue, capital or other benefit received by [C Pty Ltd] from 02 July 2014 to date.
5. Forthwith upon compliance by the husband and his parents with order 3, the husband do all such things and sign all documents necessary to transfer to the wife all his share and interest in [C Pty Ltd], resign as a director and appoint the wife as a director of the [C Pty Ltd], and further provide to the wife all documents, statements, minutes, financial records, certificate of title of any properties owned by the [C Pty Ltd] including [D Street], [Suburb E] property and any other items in relation to the properties including any rental lease, keys, garage openers.
6. The court notes that prior to the disposition identified in order 7 below, the husband was the sole shareholder and director of [S Pty Ltd] ([S Pty Ltd]) and that corporation was a 20% shareholder of [NN Pty Ltd] .
7. Pursuant to section 106 B of the Family Law Act 1975 (Cth), that disposition by the husband by way of transfer of his share in [S Pty Ltd] on or about 5 July 2016 to his parents, [Mr B Xia] and [Ms Siang] (3rd and 4th respondents), be set aside.
8. Within 7 days of making of order 7, the husband and his parents each do all such things and sign all documents necessary to give effect to order 7.
9. Pursuant to section 106 B of the Family Law Act 1975 (Cth), the husband and his parents be required to account to the wife for all revenue, capital or other benefit received by [S Pty Ltd] from 31 March 2016 to date.
10. Forthwith upon compliance by the husband and his parents with order 8, the husband do all things and sign all documents necessary to transfer to the wife all his share and interest in [S Pty Ltd], and further provide to the wife all documents, statements, minutes, financial records, certificate of title of any properties owned by the [S Pty Ltd].
11. The court notes that [Xia Family Trust] was established by way of deed made on 11 June 2015, of which the husband and father were recorded as holding power of appointers, [G Pty Ltd] was recorded as the trustee for the trust, of which until the disposition identified in order 12, the husband was the sole shareholder and director.
12. The court notes that on or about 28 May 2019 [SS Pty Ltd] incorporated of which [Mr B Xia] was the sole director and of which [Mr B Xia] and [Ms Siang] are equal shareholders was appointed as the trustee for the .
13. Pursuant to section 106 B of the Family Law Act 1975 (Cth), that disposition by the husband by way of transfer of his share in [G Pty Ltd] on or about 9 August 2016 to his parents, [Mr B Xia] and [Ms Siang] (3rd and 4th respondents), be set aside.
14. Pursuant to section 106 B of the Family Law Act 1975 (Cth), that disposition by [Mr B Xia] by way of appointment of [SS Pty Ltd] as the Tr[u]stee for the [Xia Family Trust] on or about 28 May 2019 be set aside.
15. Within 7 days of making of order 12, the husband and his parents each do all such things and sign all documents necessary to give effect to order 13 and 14.
16. Forthwith upon compliance by the husband and his parents with order 13, the husband and his parents do all such things and sign all documents necessary to transfer all shares in [G Pty Ltd] to the wife, to remove the husband as the director and appoint the wife as a director of [G Pty Ltd].
17. The Court notes that until 30 June 2018 [t]he husband and his father, were the appointers of [Xia Family Trust], on or about 30 June 2016 (sic) the [Xia Family Trust] Deed was amended so that [Mr B Xia] became the sole appointer of the trust.
18. That [Mr B Xia] be restrained from doing any act or things to change the identity of the trustee for [Xia Family Trust] pending the wife implementing the following orders.
19. Pursuant to section 106B of the Family Law Act 1975 (Cth), that the disposition on or about 30 June 2018 by [Mr B Xia] and [Mr Xia] by way of alteration of the [Xia Family Trust] to appoint [Mr B Xia] as sole appointer of the trust be set aside.
20. The [C]ourt declares that the [Xia Family Trust] was and is the alter-ego or puppet of the husband.
21. Upon the wife becoming the sole shareholder and director of [G Pty Ltd], the wife shall do all things and sign all documents necessary to exercise a discretion as a director of the trustee to distribute the income and capital of [Xia Family Trust] in accordance with the absolute discretion contained in the trust deed.
22. Upon the distribution of all such income, capital and benefit, the parties shall do all things and sign all documents necessary to cause the trust to vest and the husband and his parents shall further provide to the wife all documents, statements, minutes, financial records, certificate of title of any properties owned by the [Xia Family Trust] and [G Pty Ltd].
23. Pursuant to section 106 B of the Family Law Act 1975 (Cth), the husband and his parents be required to account to the wife in her capacity of the sole shareholder and director of the trustee, all benefit by way of income, dividend, proceeds, or capital received subsequent to 11 June 2015 to date.
24. That within 21 days of the date of these orders the Husband and his parents do all things and sign all documents necessary so as to discharge the mortgage, and any taxation or revenue impost encumbering the following properties from the husband and wife's names:
a. [2 D Street], [Suburb E], NSW situated at and known as folio identifier number […]
b. [M Street], [Suburb N] NSW situated at and known as folio identifier number […]
c. [O Street], [Suburb P] NSW situated at and known as folio identifier number […]

25. Forthwith upon compliance by the husband and his parents with order 20, the husband and wife do all things and sign all documents necessary to transfer to the wife's name free of any taxation or revenue impost, mortgage or encumbrance the properties identified in order 20.
26. That the Husband pay to [the] wife pursuant to section 79 of the Family Law Act within 14 days the sum of $1,900,000.00.
27. That the Husband and his parents shall do all acts, things and sign all documents necessary to transfer to the wife's nominated bank account, monies currently held on trust as a consequence of the sale of the [J Pty Ltd] .
28. In the event that the Husband or his parents (the third or fourth respondents) refuses or neglects to execute any deed, writing or instrument for greater than 7 days to give effect to these Orders:
a. The wife be appointed pursuant to s. 106 A of the Family Law Act 1975 (Cth) to execute such deed, writing or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, writing or instrument.
b. It shall be sufficient to establish default as provided for in these Orders if any document sent by email or by prepaid post or courier to the last known address of that party required to sign and if that document is not returned executed to the sender within seven (7) days

29. That the wife have leave to further amend her application for final orders upon further disclosure being provided by the respondents.
30. The husband and each of his parents jointly and severally pay the wife costs in these proceedings on an indemnity basis.

ANNEXURE “B” – ORDERS SOUGHT BY THE HUSBAND
(A) ORDERS SOUGHT
1. That the current property and liabilities of the husband and wife be adjusted, such that the husband receive 70% and the wife receive 30% distribution of their net property and to effect this, within 42 days of the date of these Orders and simultaneously:
a. The husband and wife do all acts and things and sign all documents to cause the property at [2 D Street], [Suburb E] (Folio Identifier: […]) to be sold for the best price reasonably obtainable and to cause the net proceeds of sale, after payments of all costs of and incidental to the sale, to be paid as to 70% to the husband and 30% to the wife;
b. That forthwith upon settlement of the sale of the [Suburb E] Property the wife shall pay to the husband, or the husband shall pay to the wife, as the case may be, such amount as is determined by this court as is necessary, having regard to any other property and liabilities of the parties, to give effect to the said 70%/ 30% division.

2. That it be declared that the husband and the wife respectively hold each of the property interests listed below upon trust for the third and fourth respondents in equal shares:
a. The property situate at and known as [O Street], [Suburb P] NSW (Folio ID: […]) subject to existing encumbrances;
b. The property situate at and known as [M Street], [Suburb N] NSW (Folio ID: […]) subject to existing encumbrances.
c. The property situate at and known as [Q Street], [Suburb N] NSW (Folio ID: […]) subject to existing encumbrances.

3. Order that the Husband and the Wife so all acts and things necessary to transfer their right, title and interest in the properties referred to in Order 2 to the third respondent and the fourth respondent.
4. Declaration that the applicant wife holds her nineteen (19) ordinary shares in [C Pty Ltd] upon trust for the third respondent and the fourth respondent.
5. Order that the wife do all acts and things necessary to transfer their right, title and interest in the shares referred to Order 4 to the third respondent and the fourth respondent.
6. Order [t]hat there be an accounting of the rent received by the Wife in respect of the [Suburb P] Property and [Q Street] Property and such sum be paid to the [t]hird and [f]ourth [r]espondents.
7. Order that within seven (7) days of the date hereof the wife return to the husband, or is he may direct (sic), the personal property particularised in paragraph 189 of the affidavit by the husband filed on 6 October 2020 and taken by the wife from the property situate at [DQ Street], [City WW] [Country F] on 30 March 2018.
8. Order that within seven (7) days of the date hereof the wife return to the husband, or as he may direct, the following items taken from by the wife from the husband is home at [M Street], [Suburb N] New South Wales in July 2017 and in breach of order 7 of this Court made on 29 June 2017 Namely:
a.         one piano,
b.        one cabinet,
c.         one dressing table,
d.        photograph.

ANNEXURE “C” – ORDERS SOUGHT BY THE PARENTS
1.A Declaration that the husband and wife hold the following properties, proceeds thereof and refunded deposits on trust for the second and third respondents:
(a) [M Street] [Suburb N] NSW Folio Identifier […]
(b) The net proceeds of sale of the property [Q Street] [Suburb N] NSW Folio Identifier […] - $2,095,319.46;
(c) [O Street], [Suburb P] NSW Folio Identifier […];
(d) Refunded deposits arising from the rescinded purchase by the husband and wife of properties purchased off the plan, particularly the following properties:
(i)[Z Street], [Suburb OO], NSW - $77,420;

(ii) [GG Street], [Suburb HH], NSW - $54,000.
(e) The interests in the issued share capital in [C Pty Ltd] held by each of them.

1A. The wife do all acts and things and sign all documents necessary to cause to be paid to the second and third respondents the amount of $680,000.
1B. Consequential upon the declarations referred to in order 1 (b) and (d) the husband and the wife shall jointly and severally pay to the second and third respondents within 28 days the sum of $2,226,739.46.
1C. That the amounts referred to in orders 1A and 1B above be secured with a charge hereby ordered over the interests of the husband and the wife in the property known as [2 D Street], [Suburb E], NSW, and such charge shall confer upon the second and third respondents the rights of a charge as stated in s. 109 Conveyancing Act 1919 (NSW).
2. The husband and wife are restrained by injunction from dealing with the properties and funds, as the case may be, set out in Order 1, including selling, transferring, encumbering, assigning or otherwise dealing with the said properties and funds, other than as agreed in writing by the second and third respondents.
3. Within 42 days, the husband and wife shall do all acts and things and sign all documents necessary to transfer their interests in the properties listed in orders 1(a) and (c), to the second and third respondents as they may direct.

4. Within 42 days the following occur simultaneously:
(a) The wife shall transfer her shareholding in the company [C Pty Ltd] to the third respondent; and
(b) That the husband and wife surrender all paperwork regarding the [Q Street] property and [Suburb P] property including documents regarding its acquisition cost, rental income, leases, documents regarding the cost base of the property and management costs, and the managing agents contact details with the keys to the [Suburb P] property to the third respondent and fourth respondents.

5. The Applicant wife pay the second and third respondents' costs.
7. That the Second Further Amended Initiating Application filed by the Wife be dismissed.

File number(s):	SYC 196 of 2017
Judgment of:	HARPER J
Date of judgment:	16 August 2023
Catchwords:	FAMILY LAW – PROPERTY – Where the husband’s parents have been joined as the Second and Third Respondents (“the parents”) – Finalisation of proceedings delayed caused by COVID-19 – Both wife and husband seek final division of 60 per cent in their favour – Wife seeks transfer to her of three real properties owned by spouse parties as joint tenants – Dispute over inclusion of corporate interest and proceeds from property development project on balance sheet – Factual dispute between parties concerning the source of funds used to acquire properties in Australia – No dispute that in excess of $13 million was transferred from Country F to Australia between 2000 and 2017 – Wife contends husband held senior management positions in family business, that Country F funds were his remuneration or share of profits, and are therefore matrimonial assets – Respondents claim Country F funds were derived from the parents or their corporate interests in Country F – Where parents formed and operated a business in Country F – Wife claimed direct involvement in family company, including full-time work as manager – Findings that wife had no employment role in family business – Findings that husband had failed to disclose exact nature his role in Country F business activities of parents – Parents seek declarations that real properties jointly owned by the spouse parties are held on trust, and transfer of wife’s shares in family company to the mother – Where properties purchased using funds borrowed by the spouse parties – Court holds certain properties held on purchase price resulting trust for the parents in proportion to their contribution – Wife owns 19 out of 100 shares in an Australian company which owns a property in Sydney suburb – Parents own remaining shares – Orders made for wife to transfer shareholding to the mother in exchange for payment of consideration. FAMILY LAW – PROPERTY – Dispute over spouse parties’ involvement in property development project – Wife contends spouse parties borrowed money from the parents for investment and were subsequently excluded from entitlement to profits – Wife seeks inclusion of profits in the matrimonial pool – Where non-exhaustive discretionary family trust was the direct investor – Wife seeks declaration that family trust is the alter ego of the husband – Where husband and father were original appointors – Amendment subsequently made for father to be sole appointor – Where spouse parties originally included as named beneficiaries – Clear evidence that father had control of family trust, not husband – Trust assets not assets of a party to the marriage – Profits excluded from balance sheet. FAMILY LAW – PROPERTY – Where parties made several off the plan purchases using funds derived from the parents – Where two deposits were refunded – Where the wife drew money from the spouse parties’ joint facilities to pay to her own parents for property investment. FAMILY LAW – PROPERTY – Dispositions to defeat court orders – Wife seeks orders pursuant to s 106B of the Family Law Act 1975 (Cth) setting aside transfer of shares from husband to the parents in corporate trustees – Wife seeks setting aside of variation to family trust deed which made the father sole appointor – Ancillary orders sought for removal of husband as director and appointment of wife, for father to exercise power of appointment, and ancillary notations – Wife seeks further disclosure, accounting for revenue, capital, and benefits received – Whether dispositions were intended to defeat an existing or anticipated order, or, irrespective of intention, were likely to defeat an order of the Court – Dispositions did not defeat any anticipated or existing court order because they could not affect the composition of the pool of divisible assets – Insufficient evidence that orders were anticipated or likely – Where wife’s primary objective was to place her in control of the trust – Where wife no longer a named beneficiary or within the class of discretionary objects at time of trial by reason of divorce – Where wife’s proposed orders would prolong financial involvement of parties – Where relief claimed is extravagant – Relief declined. FAMILY LAW – PROPERTY – Assessment of contributions - Declaration pursuant to s 78 of the Act – Orders for refunds to be repaid to the parents – Declarations that spouse parties hold portion of real properties on trust for the parents – Orders for sale of all properties – Where orders for sale were not sought by any party – Court’s discretion exercised in order to completely sever financial relationship between parties – Contributions assessed as equal – 10 per cent adjustment in favour of the wife – Final division of 63/37 in favour of the wife. FAMILY LAW – EVIDENCE – Civil standard of proof – Discharge of the onus to prove a case on the balance of probabilities – Discussion of case law concerning discharge of onus of proof – Where Court would be entitled to discount evidence actually called by failure to call evidence in a party’s power to call – Inferences to be drawn from documents – Where wife relied on numerous documents to support contentions concerning involvement in the family company – Where many documents written in Country F Language with translation – Authenticity and reliability of documents require proof on balance of probabilities on issues such as provenance or authorship – Wife’s evidence of provenance or authorship largely absent despite it being within her power to call such evidence – Where failure to call such evidence is relevant to determining whether onus has been discharged. FAMILY LAW – PRACTICE AND PROCEDURE – Disclosure – Wife made extensive submissions that respondents’ disclosure was inadequate or non-existence – Duty of full and frank disclosure – Application of duty to third parties – Where duty enforces a high normative standard – Failure to disclose may lead to unfavourable inferences being drawn against defaulting party – Relationship between principle in Blatch v Archer (1774) 1 Cowp 63 and consequences of non-disclosure. FAMILY LAW – COSTS – Husband seeks discharge of dollar for dollar costs order made early in the proceedings – Wife contends husband has avoided liability by not paying – Artificiality in arguments made – Where husband has outstanding Supreme Court of NSW judgment debt towards former lawyers – If payments made, they would be pursuant to a judgment debt, not for accounts rendered – Where r 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) automatically discharges any interlocutory order upon the making of final orders – Order discharged.
Legislation:	Corporations Act2001 (Cth) Evidence Act 1995 (Cth) Pt 2.2, ss 48(1), 55, 58, 59, 69, 128(7), 135, 136, 140, 153, 274, 175 Family Law Act 1975 (Cth) Pts VIII,VIIIAA, ss 4, 75(2), 78(1), 79, 80, 81, 90AC, 90AE, 106B Federal Circuit and Family Court of Australia Act 2021 (Cth) s 44 Income Tax Assessment Act 1936 (Cth) Family Law Rules 2004 (Cth) ch 13, rr 13.02,19.04 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pts 6, 7.2, rr 5.01, 6.01, 6.03, 6.06(2) Real Property Act 1900 (NSW) s 42
Cases cited:	Abrath v North Eastern Railway Co (1883) 11 QBD 440 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 Anderson v McPherson (No 2) [2012] WASC 19 Antov v Bokan [2018] NSWSC 1474 AscotInvestments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1 ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Atkins & Hunt (2020) FLC 93-992; [2020] FamCAFC 252 Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (1978) 141 CLR 335; [1978] HCA 45 Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) (2012) 207 FCR 448; [2012] FCA 1355 Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) (2015) 235 FCR 181; [2015] FCA 342 Australian Securities and Investments Commission v Rich (2005) 216 ALR 320; [2005] NSWSC 417 Australian Securities and Investments Commission v Rich (2009) 236 FLR 1; [2009] NSWSC 1229 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567; [1968] UKHL 4 Barnell & Barnell (2020) FLC 93-961; [2020] FamCAFC 102 BCI Finances Pty Ltd (In Liq) v Binetter (2018) 362 ALR 597; [2018] FCAFC 189 BCI Finances Pty Ltd (in liq) v Binetter (No 4) (2016) 348 ALR 227; [2016] FCA 1351 Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303 Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116 Black and Kellner (1992) FLC 92-287; [1992] FamCA 2 Black Uhlans Inc v New South Wales Crime Commission (2002) 12 BPR 22,421; [2002] NSWSC 1060 Blatch v Archer (1774) 1 Cowp 63 Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56 Bosanac v Commissioner of Taxation (2022) 96 ALJR 976; [2022] HCA 34 Bourke v Bourke (Final Hearing Costs) (2010) 43 Fam LR 139; [2010] FamCA 199 Briese and Briese (1986) FLC 91-713 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Buffrey v Buffrey (2006) 12 BPR 23,619; [2006] NSWSC 1349 Burke and Burke (1981) FLC 91-055; [1981] FamCA 44 Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26 Carmel-Fevia & Fevia (2010) 43 Fam LR 405: [2010] FamCA 502 Chang v Su (2002) FLC 93-117: [2002] FamCA 156 Chiefley & Ha [2017] FamCA 683 Clayton v Bant (2020) 272 CLR 1; [2020] HCA 44 Colbeam Palmer Ltd v Stock Affilites Pty Ltd (1970) 122 CLR 25; [1968] HCA 50 Commissioner of Taxation v Cassaniti (2018) 266 FCR 385; [2018] FCAFC 212 Cook’s Construction v Brown (2004) 49 ACSR 62; [2004] NSWCA 105 Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88 Crapp and Crapp (1979) FLC 90-615; [1979] FamCA 17 Currie v Hamilton (1984) 1 NSWLR 687 D and D [Section 85 application] (1984) FLC 91-593 Dakin & Sansbury [2014] FamCAFC 11 Daw v Toyworld (NSW) Pty Ltd (2001) 21 NSWCCR 389; [2001] NSWCA 25 Di Liristi v Matautia Developments Pty Ltd (2021) 396 ALR 545; [2021] NSWCA 328 Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 ELB Pty Ltd v Lumina Bpo Pty Ltd [2021] NSWCA 91 Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209; [2016] FCA 1034 Fitzroy & Oliversen [2021] FedCFamC1F 4 Flourentzou v Spink [2019] NSWCA 315 Fowles & Fowles (No 3) [2022] FedCFamC1F 386 G and G (2000) FLC 93-043; [2000] FamCA 1075 G v H (1994) 181 CLR 387; [1994] HCA 48 Gabini & Gabini [2014] FamCAFC 18 Gare & Farlow (2023) FLC 94-146; [2023] FedCFamC1A 98 George v Webb [2011] NSWSC 1608 Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155; [1982] HCA 15 Gissing v Gissing [1971] AC 886 Gould & Gould (2007) FLC 93-333; [2007] FamCA 609 Grech v Deak-Fabrikant (No 3) [2015] VSC 581 Gregg v R [2020] NSWCCA 245 Guest v Federal Commissioner of Taxation (2007) 65 ATR 815; [2007] FCA 193 Halabi v Artillaga (1994) FLC 92-470; [1993] FamCA 154 Hall v Hall (2016) 257 CLR 490; [2016] HCA 23 Hampton Court Ltd v Crooks (1957) 97 CLR 367; [1957] HCA 28 Harris & Dewell (2018) FLC 93-839; [2018] FamCAFC 94 Haseloff & Kormann [2013] FamCA 1019 HDM & MM & SJM [2006] FamCA 47 Heath and Heath; Westpac Banking Corp. (1983) FLC 91-362 Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52 Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395 Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC 94-006; [2021] FamCAFC 19 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Horrigan & Horrigan [2020] FamCAFC 25 In the matter of QB Foods Pty Limited [2021] NSWSC 1227 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78 JEL and DDF (2001) FLC 93-075; [2000] FamCA 1353 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Kannis and Kannis (2003) FLC 93-135; [2002] FamCA 1150 Kation Pty Ltd v Lamru Pty Ltd (2009) 257 ALR 336; [2009] NSWCA 145 Kedwell v Deputy Commissioner of Taxation [2020] NSWCA 238 Kennon v Spry [2008] 238 CLR 366: [2008] HCA 56 Knight v Mayart Pty Ltd [2022] VSCA 36 Kowalski and Kowalski (1993) FLC 92-342; [1992] FamCA 54 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79 Mabb & Mabb (2020) FLC 93-947; [2020] FamCAFC 18 Manolis & Manolis (No 2) [2011] FamCAFC 105 Masoud & Masoud (2016) FLC 93-689; [2016] FamCAFC 24 Massalski & Riley (2021) FLC 94-047; [2021] FamCAFC 116 Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430; [2021] HCA 1 Moore & Moore (2014) FLC 93-595; [2014] FamCAFC 113 Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25 Mulley v Manifold (1959) 103 CLR 341; [1959] HCA 23 Murtagh v Murtagh [2013] NSWSC 926 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Nagel & Clay (2020) 60 Fam LR 550; [2020] FamCA 326 Napier v Public Trustee (WA) (1980) 32 ALR 153 National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539 Neilson v Overseas Projects Corporation of Victoria (2005) 223 CLR 331; [2005] HCA 54 Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Norman & Norman [2010] FamCAFC 66 Papas v Co [2018] NSWSC 1404 Payne v Parker [1976] 1 NSWLR 191 Peter Cox Investments Pty Ltd (in liq) v International Air Transport Association [1999] FCA 27 Potter v Potter [2003] 3 NZLR 145 PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643; [1992] NSW ConvR 59,532 Public Trustee v Smith (2008) 1 ASTLR 488; [2008] NSWSC 397 R v Radford (1993) 66 A Crim R 210 Rail Corporation New South Wales v Donald [2018] NSWCA 82 Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 Raulfs v Fishy Bite Pty Ltd [2012] NSWCA 135 Re Lilley [1953] VLR 98 Re Miller [1979] VR 381 Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984 Riemann & Riemann (No 3) [2017] FamCA 911 Rigby and Kingston (No. 4) [2021] FamCA 501 Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Sampson in his Capacity as Trustee for the Bankrupt Estate of Tannous v Tannous [2022] FCA 1427 Scaffidi v Montevento Holdings Pty Ltd (2011) 6 ASTLR 446; [2011] WASCA 146 Selkirk & Selkirk [2019] FamCAFC 63 Shepherd v Doolan [2005] NSWSC 42 Spink v Flourentzou [2019] NSWSC 256 Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52 Stein and Stein (1986) FLC 91-779; [1986] FamCA 27 Stopford Malloy & Malloy [2021] FedCFamC1F 123 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Stunzi Sons Ltd v House of Youth Pty Ltd (1960) SR (NSW) 220 Sydney Attractions Group Pty Ltd v Frederick Schulman [2013] NSWSC 858 Talwar & Sarai (2018) FLC 93-855; [2018] FamCAFC 152 Thomas v SMP (International) Pty Ltd [2010] NSWSC 822 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Transport Industries Insurance Co. Ltd v Longmuir [1997] 1 VR 125 Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278; [2006] HCA 6 Twinsectra Ltd v Yardley [2002] 2 All ER 377 VC & GCG (2010) FLC 93-434; [2010] FamCAFC 62 Walker v Walker (1937) 57 CLR 630; [1937] HCA 44 Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950; [2020] FamCAFC 65 Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18 Waterman & Waterman (2017) FLC 93-762; [2017] FamCAFC 23 Wei & Xia [2020] FamCA 894 Wei & Xia (No 2) [2021] FamCA 313 Wei & Xia [2022] FedCFamC1F 136 Wei & Xia (No 2) [2022] FedCFamC1F 189 Wei & Xia (No 4) [2022] FedCFamC1F 204 Weige v Cupton Pty Ltd (2012) 8 ASTLR 229; [2012] NSWCA 414 Weir and Weir (1993) FLC 92-338; [1992] FamCA 69 Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 Wirth v Wirth (1956) 98 CLR 228; [1956] HCA 71 Yaling & Tsen (2022) 65 Fam LR 437; [2022] FedCFamC1F 676 Ying v Song [2010] NSWSC 1500 Yoshino v Niddrie [2003] NSWSC 57 Zegna & Zegna (No 2) [2022] FedCFamCIF 558
Division:	Division 1 First Instance
Number of paragraphs:	674
Date of last submission/s:	16 November 2022
Date of hearings:	12–20 October 2020, 28 March–7 April 2022, 13–21 October 2022
Counsel for the Applicant:	Mr Cummings SC (12–20 October 2020 and 28 March–7 April 2022) with Ms Lioumis (28 March–7 April 2022 and 13–21 October 2022)
Solicitor for the Applicant:	Broaden Legal
Counsel for the First Respondent:	Mr Archibald (12–20 October 2020), Litigant in person (28 March–7 April 2022), Mr Ahmad (13–21 October 2022)
Solicitor for the First Respondent:	Metro North Legal (12–20 October 2020, 13–21 October 2022), Litigant in person (28 March–7 April 2022)
Counsel for the Second and Third Respondents:	Mr Lloyd SC (12–20 October 2020), Mr Richardson SC with Mr Reynolds (28 March–7 April 2022 and 13–21 October 2022)
Solicitor for the Second and Third Respondents:	MLH Lawyers
Counsel for the Intervenor:	Mr Hodgson
Solicitor for the Intervenor:	V Pty Ltd

Table of Corrections
18 October 2023	In Order 2 punctuation had been inserted.
18 October 2023	In Order 10 the date “17 October 2017” has been corrected to “29 June 2017”.
18 October 2023	In paragraph 3 the word “lead” has been replaced with “led”.
18 October 2023	In paragraph 6 the possessive apostrophe has been added in the word “parent’s”.
18 October 2023	In paragraph 666 the amount of “10,000” has been corrected to “9,284”.
18 October 2023	In paragraph 666 punctuation has been inserted following “$1,978,174” and prior to “The” and following “$1,161,785” and prior to “If”.

SYC 196 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS WEI Applicant
AND:	MR XIA First Respondent MR B XIA Second Respondent MS SIANG Third Respondent V PTY LTD Intervenor

ORDER MADE BY:	HARPER J
DATE OF ORDER:	16 AUGUST 2023

INTRODUCTION	[1]
CENTRAL DISPUTES, COMPETING RELIEF, SIGNIFICANT ENTITIES AND DEALINGS	[5]
Relief Sought by the Wife	[12]
*C Pty Ltd*	[15]
*S Pty Ltd*	[19]
*L Pty Ltd, G Pty Ltd and the Xia Family Trust*	[22]
*Transfer of Properties and Payment to the Wife*	[26]
*Cash Payment*	[28]
*J Pty Ltd*	[29]
*Consequential orders*	[30]
Relief Sought by the Respondents	[31]
BACKGROUND	[36]
“Off the Plan” Purchases	[106]
PROCEDURAL HISTORY	[113]
MATERIAL RELIED UPON	[133]
Expert evidence	[135]
PART VIII OF THE ACT	[136]
EVIDENTIARY ISSUES	[147]
The parties	[179]
Documentary Evidence	[201]
*Inferences and Documents*	[228]
Country F Legal Concepts	[233]
ASSETS, LIABILITIES AND FINANCIAL RESOURCES AT THE DATE OF THE HEARING	[240]
BUSINESS ACTIVITIES IN COUNTRY F AND THE SOURCE OF COUNTRY F FUNDS	[266]
The “family business” and JJ1 Pty Ltd	[267]
Profits, shareholdings and employment positions	[280]
KK Street	[360]
Items 1, 6, and 7 – D Street, 2 D Street and LL Pty Ltd	[401]
1 MM Street	[422]
2 MM Street	[425]
Item 2 – M Street	[426]
Loan Approval – Late 2011	[436]
Item 3 – O Street	[439]
Q Street	[444]
Items 6 and 7 – Shareholding in C Pty Ltd	[467]
Item 8 – Xia Family Trust and J Pty Ltd	[469]
Item 9 – NN Pty Ltd	[560]
Z Street and GG Street	[573]
Conclusions and asset pool	[574]
CONTRIBUTIONS	[577]
Section 79(4)(a)–(d)	[581]
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and	[592]
Section 106B	[595]
ASSESSMENT OF CONTRIBUTIONS	[635]
SECTION 79(4)(E): THE MATTERS REFERRED TO IN SUBSECTION 75(2) SO FAR AS THEY ARE RELEVANT	[641]
(a) the age and state of health of each of the parties	[642]
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment	[643]
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;	[646]
(d) commitments of each of the parties that are necessary to enable the party to support	[646]
(i) himself or herself; and	[646]
(ii) a child or another person that the party has a duty to maintain;	[646]
(e) the responsibilities of either party to support any other person;	[646]
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation	[646]
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken in to account	[648]
CONCLUSION AND ORDERS	[652]
WHETHER THE PROPOSED ORDERS ARE JUST AND EQUITABLE	[667]
COSTS	[672]
CONCLUSION	[674]
SCHEDULE “A” – MATERIAL RELIED UPON BY THE PARTIES	186
ANNEXURE “A” – AMENDED ORDERS SOUGHT BY THE WIFE	188
ANNEXURE “B” – ORDERS SOUGHT BY THE HUSBAND	191
ANNEXURE “C” – ORDERS SOUGHT BY THE PARENTS	193

Assets and liabilities to be retained by the Wife	Value ($)
Share of net sales proceed of 2 D Street (assumed value $4,650,000)	$2,325,000
Share of proceeds of M Street (assumed value $2,775,000)	$1,387,500
Share of Proceeds of O Street (assumed value $525,000)	$255,000
Payment from husband	$9,284
Payment for shares in C Pty Ltd, 19/100 shares	$712,500
Subtotal	$4,689,284
Liabilities
Share of mortgage over 2 D Street	-$536,051
Share of mortgage over M Street	-$596,792.50
Share of mortgage over O Street	-$151,790
Share of payment to parents - 36% of M Street	-$499,500
Share of payment to parents - 30% of O Street	-$78,750
Share of payment to parents - 29% of Q Street	-$334,950
Loan from Ms DF and Ms DG	- $32,100
Loan from Ms DH	- $3,000
Loan from Ms DJ	- $159,100
Loan from Mr BL	- $60,000
Legal Fees owed to BK Lawyers	- $75,026
Legal Fees owed to Ms DK, Barrister	- $6,476
Legal Fees owed to Broaden Legal	- $111,864
Payment to parents of half of refunded deposit for Z Street	-$38,710
Payment to parents of half of refunded deposit for GG Street	-$27,000
Subtotal:	-$2,711,110
Net Assets	$1,978,174
Assets and liabilities to be retained by the Husband	Value ($)
Share of net sales proceed of 2 D Street (assumed value $4,650,000)	$2,325,000
Share of proceeds of M Street (assumed value $2,775,000)	$1,387,500
Share of Proceeds of O Street (assumed value $525,000)	$255,000
Subtotal Assets	$3,967,500
Liabilities
Share of mortgage over 2 D Street	-$536,051
Share of mortgage over M Street	-$596,792.50
Share of mortgage over O Street	-$151,790
Share of payment to parents - 36% of M Street	-$499,500
Share of payment to parents - 30% of O Street	-$78,750
Share of payment to parents - 29% of Q Street	-$334,950
Judgment debt in Supreme Court (legal fees)	- $532,887
Payment to parents of half of refunded deposit for Z Street	-$38,710
Payment to parents of half of refunded deposit for GG Pty Ltd	-$27,000
Payment to the wife	$9,284
Subtotal:	$2,805,715
Net Assets:	$1,161,785

Exhibit Label	Document	Tendered by
1	Costs Notice dated 11 October 2020	2R and 3R
2	Costs Notice 12 October 2020 dated 14 October 2020	Husband
3	Bundle of wife’s tax returns for financial year 2016, 2017, and 2018	2R and 3R
4	Affidavit of wife filed 13 January 2017	2R and 3R
5	Bundle of screen shots of WeChat correspondence from wife	2R and 3R
6	Financial Statement of the wife filed 13 January 2017	2R and 3R
7	Costs notice dated 11 October 2020	Husband
8	Summary of History of Illness during First-time Admission – DO Health Centre, City WW	Husband
9	Husband’s Tender Bundle	Husband
10	Email from CW Accountants titled New Trust Setup – L Pty Ltd ATF Xia Family Trust dated 16 June 2015	Husband
11	Bundle of statements regarding 3 safe deposit boxes	Husband
12	Proposed Anton Piller Order and table of withdrawals from Box D2331, EO6292, and A02051	Husband
13	Annexure A to Affidavit of father dated 20 February 2017	Husband
14	Affidavits of 14 October 2020 and 7 February 2020 of mother, together with notations therein	2R and 3R
15	Updated financial statement	Husband
16	Settlement Statement of property Q Street Suburb N, settled in early 2019	2R and 3R
17	DR Bank Records	2R and 3R
18	Home affairs international movements	2R and 3R
19	Proposed Amended Minute of Orders	2R and 3R
20	Aide memoire, together with the bank statements (Annexure A to the affidavit of Mr DP filed on 4 November 2022)	2R and 3R
Court1	Joint Balance Sheet	All parties
A	Amended Orders Sought by the wife	Wife
B	Costs Notice dated 9 October 2020	Wife
C	Schedule of objections	Wife
D	Bundle of wife’s material – objections	Wife
E	Bundle of exhibits to wife’s affidavit.	Wife
F	Outline of submissions for the wife in support of AIAP filed 25 March 2022 and in opposition to the husband’s AIAP filed 24 March 2022, with paragraph 18 to be withdrawn.	Wife
G	Page 1 and paragraph 9 of the affidavit of the father filed 7 February 2022	Wife
H	List of paragraphs in the father’s 7 February 2022 affidavit. Note that all the paragraphs have been tendered by the Applicant and form part of her case. Include page 1 of the affidavit.	Wife
I	Document referred to at [117] of the father’s affidavit of 7 February 2022 – with English translation	Wife
J	Two messages from the father to the husband, at 8:44am and 7:57am, with English translations	Wife
K	Paragraph 25 and Annexure A to the affidavit of the father dated 20 February 2017	Wife
L	Amended schedule of objections to husband’s affidavit	Wife
M	Husband’s affidavit filed 28 February 2017, page 28 paragraph 49	Wife
N	Summary of husband’s movement records into and out of Australia	Wife
O	Updated Joint Balance Sheet	All parties
P	Husband’s Costs Notice of 20 October 2022	Wife
Q	Email – list of affidavits relied upon in dollar for dollar costs	Wife and Husband
R	Aide memoire and bank statements	Wife
S	Bundle of exhibits to father’s affidavit	2R and 3R
T	Bundle of exhibits to mother’s affidavit	2R and 3R