Xin & Qinlang (No 6) - [2024] FedCFamC1F 8

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Xin & Qinlang (No 6) [2024] FedCFamC1F 8

File number(s): CAC 1782 of 2018

Judgment of: GILL J

Date of judgment: 25 January 2024

Catchwords: FAMILY LAW – PROPERTY – where the husband and wife own a number of properties and joint business ventures – where the parties’ joint businesses have nil value – where the husband’s parents, as second and third respondents, claim a property is held on resulting trust as in Calvery v Green or constructive trust as in Butler v Craine for them by the husband and wife - claims dismissed – where second and third respondents seek declarations and repayment of a number of loans to the husband and wife – declaration that $229,916 was loaned jointly to husband and wife and all other claims as to loans dismissed – held 60-40 split of property pool in the wife’s favour – husband to indemnify the wife for the loan repayment to the second and third respondents.
FAMILY LAW – PRACTICE AND PROCEDURE – where the husband’s evidence was found to be generally unreliable – where it was found that the husband and second and third respondents fabricated documents for the purpose of the proceedings.

Legislation:
Corporations Act 2001 (Cth) – s 601AD

Evidence Act 1995 (Cth) – s 66A

Family Law Act 1975 (Cth) – ss 75, 79 & 102NA

Cases cited:
Bevan & Bevan [1993] FamCA 95

Bosanac v Commissioner of Taxation [2022] HCA 34

Butler v Craine [1986] VR 274

Calverley v Green (1984) 155 CLR 252

Davies v The National Trustees Executors and Agency Co of Australasia Ltd [1912] VLR 397

Dickons & Dickons [2012] FamCAFC 154

Grier & Malphas (2016) 55 Fam LR 107

In the Marriage of Biltoft (1995) 19 Fam LR 82

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

Stanford v Stanford [2012] HCA 52

Strand & Strand (No 2) [2018] FamCAFC 247

Trevi & Trevi [2018] FamCAFC 173

Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278

Welch & Abney [2016] FamCAFC 271

Division: Division 1 First Instance

Number of paragraphs: 315

Date of hearing: 4-12 December 2023

Place: Canberra

Solicitor for the Applicant: Litigant in Person

Counsel for the First Respondent: Dr Smith

Solicitor for the First Respondent: Dobinson Davey Clifford Simpson

Counsel for the Second and Third Respondents: Mr Mellas

Solicitor for the Second and Third Respondents: Lander & Rogers

Solicitor for the Fourth Respondent: Litigant in Person (did not participate)
ORDERS

CAC 1782 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR XIN

Applicant

AND:
MS QINLANG

First Respondent

MR B XIN

Second Respondent

MS WANG (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

25 JANUARY 2024

THE COURT ORDERS THAT:
1.All previous property orders are discharged.
2.That the 2^nd and 3^rd respondents’ applications and claims as to an equitable interest in the property located at O Street Suburb K in Region DD being the whole of the land more particularly described in Certificate of Title Volume … Folio … Edition … (the Suburb K property) are refused and the applications are dismissed.
3.Within 7 days from the date of these Orders, the second and third Respondents do all things necessary to withdraw the caveat (dealing …) lodged over the Suburb K property.
4.It is declared that the sum of $229,916 provided by the 2^nd and 3^rd respondents are funds loaned jointly to the husband and wife.
5.The declarations as to loans as sought by the 2^nd and 3^rd respondents in respect of the husband and wife are otherwise refused and the application is dismissed.
6.The husband shall repay to the 2^nd and 3^rd respondents the sum of $229,916.
7.The order sought by the 2^nd and 3^rd respondents in respect of the repayment of loaned monies by the husband and wife are otherwise refused and the application is dismissed.
8.The orders sought by the 2^nd and 3^rd respondents for payments in respect of loans and/or investments and or profits in respect of Q Pty Ltd, N Pty Ltd are refused and the application is dismissed.
9.The 2nd and 3rd respondents’ application for all the furniture, chattel and personal possessions in the Suburb K property be declared to be the property of the Second and Third Respondents is dismissed.
10.The 2^nd and 3^rd respondents’ applications for orders and declarations in respect of P Group Pty Ltd and P Holdings Pty Ltd are refused and the applications are dismissed.

Payment
11.Within 60 days of the making of these orders, the husband pay to the wife the sum of $158,000 (being 60 per cent of the net value in the parties’ property pool taking into account the Orders provided below) (‘the Date’ and ‘the Payment’, respectively).
12.Contemporaneously with the Payment:
(a)The Wife do all acts and things necessary to transfer to the husband, at the husband’s expense, all of her interest in the property situate at and known as O Street, Suburb K in Region DD, being the whole of the land more particularly described in Certificate of Title Volume … Folio … Edition … (“the Suburb K Property”).
(b)The husband do all acts and things necessary to cause the joint loan account to the ANZ Bank loan account number …35 in the names of Mr Xin and Ms Qinlang (“the Suburb K loan”) to be refinanced into his sole name with a financial institution of his choosing and to payout the Suburb K loan in full;
(c)The parties do all acts and things necessary to enable ANZ Bank to discharge mortgage dealing … securing the Suburb K loan over the Suburb K property; and
(d)The husband indemnify the wife against all payments and liability pursuant to any mortgage or other encumbrance secured over the Suburb K Property and all apportionable rates, taxes and outgoings of or with respect to the Suburb K Property of whatsoever nature and kind.

On Default of the Payment
13.In the event that the whole of the Payment has not been made by the Date, or the husband has not refinanced the mortgage secured over the Suburb K Property into his sole name then:
(a)The wife be appointed the sole trustee for the sale of the Suburb K property and is granted sole right to occupy the Suburb K property to the exclusion of the husband; and
(b)In her capacity as the sole trustee for the sale of the Suburb K property, the wife do all acts and things and sign all documents and do all things as may be required to forthwith place the Suburb K Property on the market for sale altogether out of Court (‘the Sale’) and upon completion of the Sale, the proceeds of the Sale be applied as follows:
(i)First, to pay all costs, commissions and expenses of the Sale;
(ii)Second, to discharge any encumbrance affecting the Real Property;
(iii)Third, so much of the balance of the Payment then outstanding together with interest at the Family Law Rules penalty interest rate to the wife; and
(iv)The balance to the husband.

Pending the Payment
14.Pending the Payment or the Sale and subject to order 13 above:
(a)The husband has the sole right to occupy the Suburb K Property and during such right of occupation the husband pay all instalments pursuant to any mortgage and all rates, taxes and like apportionable outgoings over the Suburb K Property as and when they fall due; and
(b)Save to give effect to these orders, neither party encumber the Suburb K Property without the consent in writing of the other party.

Suburb FF Property
15.Within 28 days from the date of these Orders:
(a)The husband do all acts and things necessary to transfer to the wife, at the wife’s expense, all of his interest in the property situate at and known as EE Street, Suburb FF in Region DD, being the whole of the land more particularly described in Certificate of Title Volume … Folio … Edition … (“the Suburb FF property”).

16.Pending the transfer of the Suburb FF property:
(a)The wife have the sole right to occupy the Suburb FF property; and
(b)The wife indemnify the husband against all outgoings with respect to the Suburb FF property, including but not limited to repayments for rates, land tax and the like; and

17.Neither party shall mortgage or otherwise offer the Suburb FF property for security other than for the purposes of compliance with these Orders.

S Family Trust
18.Within 14 days from the date of these Orders, the wife shall, at the husband’s expense, do all things necessary to:
(a)Relinquish all beneficial entitlements and irrevocably disclaim her interest as a beneficiary of the S Family Trust (“the Trust”);
(b)Transfer to the husband all of her right, title and interest in the following:
(i)Any loan accounts in the Trust;
(ii)Allocated but undistributed profits in the Trust;
(iii)Undistributed profits in the Trust; and
(iv)Any other liability owed by the Trust to the wife.

19.The husband indemnify, and keep the wife indemnified with respect to any liability of the Trust, including any taxation liability (past, present or future).

Q Pty Ltd
20.Within 14 days from the date of these Orders, the husband and wife shall do all acts and things to wind up Q Pty Ltd at the parties’ joint expense.

P Group Pty Ltd
21.The husband and wife as beneficial owners of the shares in P Group Pty Ltd do all acts and things necessary to sell the business known as the T Franchise (owned and operated by the company P Group Pty Ltd), including instructing and securing the cooperation of Mr P (as the director and non-beneficial shareholder of P Holdings Pty Ltd).
22.That for the purpose of the sale referred to in Order 24 the wife be appointed as the sole Trustee of the sale.
23.That upon the settlement of the sale of T Franchise, the wife as Trustee of the sale, cause the net proceeds of sale to be applied as follows:
(a)60 per cent to the wife; and
(b)40 per cent to the husband.

Other
24.The wife retain the following assets for her sole use and benefit, free from claim by the husband:
(a)The Suburb FF property;
(b)Her interest in R Pty Ltd (trading as the F Franchise, U Centre);
(c)Monies in all bank accounts in her sole name;
(d)Furniture and household contents in her name, possession or control; and
(e)Her superannuation entitlements with Superannuation Fund 1.

25.The husband retain the following assets for his sole use and benefit, free from claim by the wife:
(a)His Motor Vehicle 2;
(b)His interest in P2 Pty Ltd (if any), GG Pty Ltd, HH Pty Ltd, HH2 Pty Ltd, JJ Pty Ltd;
(c)His interest in S Family Trust;
(d)Monies in all bank accounts in his sole name;
(e)Furniture and household contents in his name, possession or control; and
(f)His superannuation entitlements with Superannuation Fund 2.

26.The wife be solely responsible for and indemnify the husband in relation to any current or future liabilities associated with:
(a)The Suburb FF property;
(b)R Pty Ltd;
(c)Any loans owed to the wife’s parents; and
(d)Any credit card liability in her name.

27.The husband be solely responsible for and indemnify the wife in relation to any current or future liabilities associated with:
(a)P2 Pty Ltd, GG Pty Ltd, HH Pty Ltd, HH2 Pty Ltd, JJ Pty Ltd;
(b)Any loans owed to the husband’s parents, including the joint loan to the 2^nd and 3^rd respondents the subject of the declaration under these orders; and
(c)Any credit card liability in his name.

28.That save as otherwise provided for in these Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property (including chose-in-action) in the possession of such party as at the date of these Orders;
(b)Monies standing to the credit of a party in any bank account is to become the property of the party in whose name the account is registered;
(c)Each party shall forego any claim or claims the party may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to, or earned by, the other;
(d)Insurance policies remain the sole property of the owner named thereon;
(e)Each party shall be solely liable for, an indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f)Any joint tenancy of the parties in any real or personal property is hereby expressly severed.

29.If either party refuses, fails or neglects to execute any document necessary to put these Orders into effect seven (7) days after being requested to do so, and any such refusal, pursuant to s 106A of the Family Law Act 1975 (Cth), the Registrar of the Federal Circuit and Family Court at City KK be and is hereby appointed to execute such document in the name of such party, and the party in default is ordered to pay all reasonable costs incurred by the non-defaulting party for the purpose of enforcing these Orders.
30.Liberty to the wife to apply with respect to implementation of these Orders upon seven (7) days’ written notice.
31.Should a party seek an order as to costs in relation to these proceedings then such party is to file an Application in Proceedings in respect of such and such supporting affidavit material as will be relied upon within 28 days of the delivery of these orders.
32.The parenting proceedings are listed for directions on a date to be fixed and are listed for final hearing to commence on 29 April 2024.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
BACKGROUND

These proceedings concern the adjustment of the property interests of the applicant husband Mr Xin, born in 1983 and the respondent wife, Ms Qinlang, born in 1985. The proceedings also involve third party claims of property rights relating to the property of the marriage, with the husband’s mother, Ms Wang and father, Mr B Xin as the second and third respondents and the wife’s father, Mr P, along with the corporate entities P Group Pty Ltd and P Holdings Pty Ltd, as the fourth respondent.
The husband and wife commenced cohabitation in City KK in 2005 or 2006. They were married in Australia 2012 and have two children together, Y, born 2012 and Z, born 2015. The wife asserts that she told the husband of her wish to separate in late April 2018 and in early May 2018 the parties separated under one roof.[1] From about mid-2018, when the husband was charged with sexually assaulting the wife, but ultimately acquitted, they have lived apart, with the wife providing the sole care for their children.
[1] Affidavit of the mother filed 6 November 2023, [3].
The parenting proceedings have been split from the property hearing.
Although the factual contentions as presented in the affidavit material filed were chaotic, the matters of significance in dispute were somewhat narrowed in final submissions.
In incomplete summary, the property dispute involves competing claims by the second and third respondents (who conducted their cases together as one), as to the beneficial ownership of real property currently held in the husband’s and wife’s names in Suburb K in Region DD, competing claims as to the husband’s ownership of real property in Country LL, debts owed by the husband and wife to the second and third respondents, and the control and beneficial ownership of a corporate entity, P Group Pty Ltd. Allied to the corporate entity issue is a contentious alteration of the shareholding and directorship of P Group Pty Ltd.
The husband supported the second and third respondents’ cases, accepting all of their claims against the husband and wife.
The fourth respondent did not participate in the hearing of the matter, and it proceeded on an undefended basis against him.
At the final hearing the husband appeared without representation, despite having representation throughout most of the proceedings, including for the preparation of his trial material. That lack of representation had a flow on consequence that, as the husband and wife were barred from personal cross-examination of each other by virtue of a final family violence order and the operation of s 102NA of the Family Law Act 1975, the husband was unable to cross‑examine the wife. The effect of this was somewhat ameliorated by the commonality of aspects of the husband’s case with the cases of the second and third respondents, who were represented and who were able to test the wife’s evidence by cross-examination.
Despite considerable efforts in preparing the case, as evidenced in the affidavit material filed by the parties, the financial history of the various parties remained highly confused.
Some of this confusion flowed from either an unwillingness or incapacity to provide fulsome documentary material to support the various claims made.
This meant that the many of the strands of evidence and assertions as to their real property and business dealings were incapable of factual resolution, at times going nowhere, and leading to considerable opacity as to the true financial history. The examination of many of these strands was necessary in order to try to set the overall evidence in context, to try to resolve what became the more central matters, and to assess the overall reliability of the witnesses.
Despite the confusion, sufficient emerged during the trial, without resolution of each and every competing claim, to establish the composition of the property of the husband and wife, to resolve the claims of the third parties, and to form an adequate picture of the parties’ contributions to allow a final resolution.
ORDERS SOUGHT
The precise orders ought by the wife and the second and third respondents are annexed to this judgment. The orders sought are set out in summary form here.
The husband, who was unrepresented at trial, identified the orders that he seeks in a limited manner. He identified that he supports the second and third respondents’ claims, and that from what is left he seeks a fair distribution. He did not identify what this might be.
The wife seeks a seventy-thirty division of the net pool in her favour. This incorporates the husband receiving a property at Suburb K in Region DD (and the second and third respondents withdrawing their caveat against this property), his superannuation interests, and various other items and interests. The wife would receive a property in Suburb FF Region DD, along with her interest in R Pty Ltd, operating a business, F Franchise U Centre, her superannuation and various other items.
The wife seeks the winding up of corporate entities and the sale of the business T Franchise, Suburb H, currently operated by P Group Pty Ltd.

The wife would indemnify the husband in respect of the property she receives, her personal debts and in relation to loans from her parents.
The wife seeks that the husband would indemnify her in relation to the property he receives, and in relation to his personal debts and any loans owed to his parents.
The second and third respondents seek declarations that the husband and wife hold their interests in the Suburb K property subject to a resulting and/or constructive trust, that the husband and wife transfer their title to the second and third respondents and cause the mortgage on that property to be discharged.
They further seek declarations that the chattels at the Suburb K property are theirs, and that the sums of $319,916 and $375,000 are loans owed by the husband and wife to them, and orders that such be paid by the husband and wife.
The second and third respondents seek the payment of various monies, at which they would relinquish interests in the corporate entities that trade as the F Franchise, Suburb H and F Franchise, U Centre, along with declarations as to Ms Wang being the sole shareholder and director of P Group Pty Ltd, and the rectification of registers to reflect that. They seek indemnification in respect of P Group Pty Ltd, and orders in respect of P Holdings Pty Ltd as against the fourth respondent.
Although the second and third respondents had also pursued other debt claims against the husband and wife, they abandoned this relief on the basis that it was statute barred.
PRINCIPLES
The claims as between the husband and wife draw upon the powers contained in the Family Law Act 1975 (Cth) that enable the court to adjust the property interests between them.
Section 79 confers upon the court the power to alter and settle the property interests between parties to a marriage. As identified by the High Court in Stanford it is a power conditioned by the overarching requirement set out at s 79(2) that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. [2]
[2] Stanford v Stanford [2012] HCA 52, [21] (French CJ, Hayne, Kiefel and Bell JJ).
This is a requirement that was identified by the High Court to apply to the decision whether to adjust interests at all, and also to the decision to adjust them in a particular manner.
The High Court identified that the starting point for this consideration is:
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.[3]
[3] Ibid [37].
In this case the claims made by the third parties, and supported by the husband, draw upon equitable principles to assert that the ownership of the Suburb K property by the husband and wife is conditioned by the beneficial ownership being held by the second and third respondents. They claim an interest in P Group Pty Ltd and make claims as to debt owed by the husband and wife. These claims bear upon the nature and extent of the legal and equitable interests held by the husband and wife.
Once the interests have been identified it can be considered whether, in the circumstances of the case it is just and equitable to make any adjustment, a consideration described by the High Court:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marriage relationship. That is, any express or implicit assumption that the parties may have made that the to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their martial relationship is brought to an end with the ending of the marital relationship.[4]
[4] Ibid [42].
As was subsequently identified by the Full Court in Bevan & Bevan [1993] FamCA 95, the necessary considerations set out at s 79(4) (including s 75(2)) are a component in the determination of whether it is just and equitable to make any adjustment, as well as in determining the particular adjustment to be made, and that the whole process of the consideration of adjustment is permeated by the consideration of whether an adjustment is just and equitable.
Following a long line of authority the Full Court in Bevan & Bevan identified a structured (although not mandatory) process to apply the considerations. That process involves the identification and valuation of the property of the parties, identification and evaluation of contributions, identification of the considerations as applicable to the case set out at s 79(4)(d) to (g) (including those contained in s 75(2)), and further consideration of whether the adjustment is just and equitable.
In this case a live issue between the parties was their disposal of property.
Obtaining a just and equitable result may require the consideration of notional property, being property that is no longer in existence, having been disposed of by a party. Although, as identified by the Full Court in Grier & Malphas,[5] the use of such notional add-backs is the exception, there may be good reason to use such an approach. In Trevi & Trevi, Murphy J identified three recognised bases for adding back, being:
where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and ‘waste’, or a wanton, negligent, or reckless dissipation of assets.[6]
[5] Grier & Malphas (2016) 55 Fam LR 107.
[6] Trevi & Trevi [2018] FamCAFC 173, [27] (Murphy J).
A justification for a notional adding back does not arise merely because a party has disposed of matrimonial assets. As observed by Murphy J in the authorities that deal with an adding back, parties do not enter a state of “suspended economic animation” on the ending of their relationship.[7] Adding back, as a discretionary exercise, is exceptional and occurs where justice and equity require such a reckoning. Alternatively, rather than adding back, justice and equity may be met by taking into account, pursuant to s 75(2)(o) the disposal as a fact or circumstance that the justice of the case renders necessary to take into account.
[7] Ibid [29].
The property to be identified and considered extends to superannuation interests of the parties.
In Welch & Abney [2016] FamCAFC 271 the Full Court emphasised the need to give consideration to the “nature, form and characteristics of the property and superannuation interests.”[8] To consider whether an adjustment is just and equitable it is necessary to identify the practical effect of the distribution. An example of where such is necessary is in the recognition of the practical difference between the receipt of a superannuation interest that may not be accessible for many years, in contrast to an asset that may be realised immediately.
[8] Welch & Abney [2016] FamCAFC 271, [19] (Murphy, Aldridge & Kent JJ).
In considering contributions, s 79 provides for a wide range of contributions to be taken into account, incorporating financial and non-financial contributions, made directly or indirectly, by or on behalf of a party to the acquisition, conservation or improvement of property, even where such no longer forms a part of the property of the parties. Further, contributions that are not made to the property, but to the welfare of the family are also to be taken into account. As the Full Court identified in Dickons & Dickons,[9] this requires a holistic assessment of the nature, form and extent of contributions, and that there is no requirement for a causal link between the contribution and the property. Contributions are not weighed merely on their financial consequences.
[9] Dickons & Dickons [2012] FamCAFC 154.
An aspect of the weighing of the contributions is of the circumstances in which they were made. For example, the Full Court in Benson & Drury [2020] FamCAFC 303 identified that the holistic examination of contributions that is required can take account of the contributions being rendered significantly more arduous by the conduct of another party in subjecting the party to family violence in determining the weight to be given to the contributions as a whole.
Typically, the weighing of contributions will be expressed relatively between the parties as percentages.
It then remains necessary to consider the other matters, insofar as they are relevant to the case, as described at s 79(4)(d) to (g) including those contained in s 75(2). A significant aspect of these considerations is directed to assessment of the future prospects of the parties and are not restricted to the consideration of financial matters. Where such considerations arise in a case, typically, once weighed, they will also sound in the expression of a percentage.
Following the consideration of these matters, further consideration must be given to whether the result is just and equitable.
In this case the identification of the legal and equitable interests of the parties involves consideration of the equitable claims made by the second and third respondents upon the Suburb K property. Those principles will be identified in the discussion in relation to that property.
A further important aspect of the case is as to claims made by the second and third respondents that they have loaned monies to the husband and wife that require repayment. These include loans purportedly made during the marriage, and since separation, including loans to the husband used by him to comply with orders that cast responsibility upon him for the meeting of particular expenses related to the properties of the parties.
The Full Court In the Marriage of Biltoft (1995) 19 Fam LR 82 observed that the general practice for the court is to deduct
from the value of their assets the value of their total liabilities. In the case of encumbered assets, the value thereof is ascertained by deducting the amount of the secured liability from the gross value of the asset.[10]
[10] In the Marriage of Biltoft (1995) 19 Fam LR 82, 91.
However, the Full Court also adopted what had been said In the marriage of Prince,[11] being that the assessment (I infer for the purposes of property adjustment) is not necessarily strictly mathematical, or accountancy based, but that allowances may be made for debts if appropriate.[12] There may be sufficient uncertainty, for example as to whether it will be enforced, or the circumstances might otherwise mean that allowance is not made for a particular debt.
[11] (1984) 9 Fam LR 481.
[12] In the Marriage of Biltoft (n 10) 91.
Here the claims as to debt were instigated as part of the case of the second and third respondents, the claims requiring resolution forming part of the common facts that require resolution to determine the husband’s and wife’s property adjustment claim, and thereby falling within the jurisdiction of the court to resolve. The onus lay upon the second and third respondents to establish the character of the payments as loans for which either the husband, wife or both bear responsibility. Whether it bears such a character was explained by the Full Court in Strand & Strand (No 2) [2018] FamCAFC 247 as follows:
The characterisation of a particular advance of monies depends on whether the circumstances known to both parties to the transaction, at the time demonstrate, objectively, that the payment was made by way of a loan.[13]
[13] Strand & Strand (No 2) [2018] FamCAFC 247, [24] (Strickland, Ainslie-Wallace & O’Brien JJ).
Various other legal principles were relied upon by the parties, which will be identified as the issues that they relate to are dealt with.
FACTUAL ISSUES
There was a wide divergence between the evidence given by the wife, and that given by the husband and the second and third respondents.
In considering the conflict in the evidence, the issue of the credibility or reliability of the evidence of the parties loomed large. The focus of the credibility issues was, in large part, based upon the circumstances relating to the purchase of the Suburb K property and the documents said to evidence the arrangement. However, issues arose more generally in relation to credibility. Before moving to the particular matters related to the Suburb K property and supporting documentation, some general observations are necessary.
The husband’s evidence
Simply because a witness is not accepted on some matters, or there are adverse credibility conclusions in relation to some matters, it is not necessarily the case that the whole of that witness’s testimony is thrown into doubt. It is open to accept a witness on some matters and reject in relation to others.
However, circumstances as to credibility or reliability can arise that reasonably point to a court exercising general caution prior to placing reliance upon a witness’s testimony absent adequate external support.
In this case there is strong reason to consider that the husband’s evidence, in general, cannot be treated as reliable, but rather should be treated with caution.
When cross-examined, the husband indicated that he had not fully examined or considered his affidavit. While it is not uncommon for a witness to indicate that portions of an affidavit were not properly considered, in this case the expressed reservations were such as to remove confidence that, at any given point, the affidavit represented the testimony of the husband. Frequently, when challenged and taken to assertions contained in his affidavit, the husband not only failed to adhere to what was contained in his affidavit, but went further to assert more generally that the affidavits were the work of his then lawyers, rather than necessarily representing his recollection. He indicated that there were mistakes in his affidavit (without moving to particulars as to their scope), and that he was not the one who wrote the affidavit. At least on his evidence his execution and swearing of the affidavit could not be construed as an adoption of the content of the affidavit.
By way of example, when taken to quotes of conversations, the husband asserted that these should be attributed to his lawyers rather than representing his specific memories, he being merely able to say generally what had passed. In particular, when taken to his description of interactions with his parents in relation to what he asserts was an unauthorised loan taken out by he and the wife, and having attributed particular words to the protagonists, he explained that he could not picture the exchange in his mind.
It is not possible, on the terms in which the husband described his affidavit, to determine what might or might not represent the husband’s testimony.
Further, the husband’s fluid approach to his written testimony does not assist him in relation to his oral testimony. His explanations as to the lack of regard had to his written evidence gives no confidence in his oral testimony, which was often at odds with his written evidence.
In the unusual and particular circumstances of this case, the husband should be considered to be generally unreliable as a witness.
The evidence of the third respondent
The third respondent accepted that he had memory problems, explaining some difficulties with his evidence on that basis. He also deferred to the recollection of his wife, in circumstances where there were substantial similarities in the evidence of the second and third respondents.
THE EVIDENCE
It is convenient to move through the parties’ contentions in a generally chronological manner, as this provides necessary context for conclusions reached as to the property.
The assertions as to loans around the time of the commencement of the relationship
The husband and wife met while both foreign students studying in City KK in about 2004.
While the claim was ultimately abandoned as statute barred, the second and third respondents prosecuted a claim in debt against the husband and wife relating to the period prior to the commencement of, and then following the start of their relationship.
Although abandoned, the claim provides useful context for assessing the parties’ evidence and claims more generally. The initial debt claim was comprised of:
·$208,484 for rent, living expenses and tuition for the husband and wife;
·$100,000 for the wife’s migration; and
·$50,218.42 for the wife’s car.
As to the $208,484 the second respondent asserts an agreement struck in 2002 for the husband to migrate to and study in Australia, and to pay money for his education and support, with such to be paid back to his parents after he started to work.
The second respondent identifies monies remitted to the husband between 20 February 2003 until 22 December 2006 of $208,484. Ms Wang and Mr B Xin have either directly transferred, or transferred through other family members, various monies. The monies provided are supported by relevant bank documents. Exhibit R1 contains bank statements from the account of the husband showing a number of transfers in from his parents and other individuals, identified by the husband in his oral evidence to be other family members, between July 2005 and January 2007. Exhibit R2 is a credit card statement, identified by the husband to be the card of his father, showing transactions to MM University of City KK and a number of businesses in City KK from August 2003 until June 2006. The husband asserted that he and the wife both used the card while the wife maintained her parents covered all her tuition fees and living expenses during this time.
The second respondent further said that the wife also benefitted from such funds from around 2004, also agreeing to repay such once working. Although the second respondent described that she did not know the wife well at that point, a conversation to this effect was alleged by Ms Wang to have taken place in 2004.
The wife denied such a conversation, and denied receiving such support from the second and third respondents, described that she was supported by her mother, including in relation to her tuition fees.[14] The wife’s mother gave unchallenged evidence that she provided financial support to the wife.
[14] Affidavit of the wife filed 7 November 2023, [146].
The wife said that she did not know the husband until late 2004, and that they did not commence cohabitation until November 2006.
Although the husband initially asserted that cohabitation commenced in 2004, in his oral evidence he placed their cohabitation as commencing in mid-2005 following an incident that they were involved in that he described left him injured, with the wife caring for him. The wife accepted that the husband stayed in her home for a few months in 2005, but explained that the home was rented by herself and two other girls, and it was not convenient for him to live there. It appears to have been a temporary arrangement. The husband also appeared to describe that he then travelled to Country LL, with the wife travelling to Country LL at a later point. The husband asserted that the wife took his salary whilst in Country LL.
While it appears that the parties’ relationship commenced in about 2004, the husband’s evidence is unpersuasive that the defacto relationship commenced prior to the end of 2006, as described by the wife. The variability in his own evidence about the relationship, along with more general concerns about his credibility, mean that the wife’s account as to this aspect should be preferred.

It is also a matter that undermines the notion that, as a relatively new boyfriend and girlfriend relationship, the second and third respondents financially supported the wife in the expectation that she would late pay them back. It is rendered further unlikely by the wife’s description that she was supported by her own mother.
Further, the notion that the funds were provided as a loan to the husband is wholly reliant upon the testimony of the husband and his parents, given under circumstances where there is nothing about the transfers at the time that is suggestive that the support of the husband by his parents was a mere loan.
As to the loans asserted in respect of the $100,000 and the car the husband produced an undated borrowing declaration with a list of remittances (exhibit W16), asserting that by 1 December 2007 he had borrowed from his parents $150,356.34, amongst which $50,356.34 was for a car for the wife and other living expenses, and $100,000 to assist her with immigration.
A further purported acknowledgement of debt in relation to the $100,000, purportedly executed by the husband and the second and third respondents on 6 July 2007 was tendered at exhibit W27. This was expressed to be for the purpose of the wife’s migration.
The wife accepted that the $100,000 was provided by the second and third respondents.
Under cross-examination the husband accepted that the $100,000 was not simply for the wife’s immigration, but for his as well as they applied together. He said that it provided a further five points on his and the wife’s immigration application. Bank transfer documents showing the transfer of the sum into a government account (consistent with its use for migration purposes) were tendered, that recorded that the transferor of the amount was the husband (exhibit W21). The husband explained that this was necessary in order to show that the funds were from him as a part of the immigration application. He denied that the signature on the document was his.
The wife accepted that the amount was not repaid following the successful immigration application, describing that the husband used the monies for one of his businesses, called RR Business. The wife’s assertion as to this business was not supported by any documentary evidence, nor by testing of the husband as to this proposition.
The husband also described that although this was an amount that was required to be paid back, they used it for improvements upon the Suburb K property once that was acquired. When asked why the $100,000 had not been repaid to his parents the husband asserted that it was in order to keep the wife happy and to avoid arguments.
As to the loan acknowledgement, under cross-examination by the wife’s counsel, the husband could not identify the date of signature of W16, but accepted that it was in the last couple of years. He then immediately said that he could not say if it was during the period of the litigation (the last five years), but then explained that it was signed as evidence. Although his evidence seemed to generally be that he simply accepted what his parents asserted as to payments without checking, he suggested that they had shown him supporting documentation.
Subsequently, when cross-examined by counsel for his parents, the husband asserted again that he could not recall when it was signed, but then asserted that it was definitely at the time (meaning the time of the transfers). He asserted that the amount was to be repaid whenever he had the money.
The borrowing declaration at W16 cannot be taken as reliable in what it asserts. It appears to have been prepared in order to supplement the evidence before the court. It can be taken to have been signed during the period of the litigation, and to be an attempt to construct evidence to bolster the claim of debt. This conclusion is rendered more certain by further conclusions reached later in the judgment about the fabrication of bolstering documents by the husband and second and third respondents.
Some doubt also arises as to the borrowing declaration at W27, noting the concession by the husband that the $100,000 was in relation to both parties’ migration not merely for the wife’s, and noting more general credibility concerns as described further below.
While it cannot be doubted that the $100,000 was provided by the second and third respondents, its status at the time as a loan from them is uncertain. It does not appear to have been subsequently treated in a manner consistent with an understanding that it was a loan by the husband and wife, particularly when it was refunded from the government account, at which point it was available for repayment to the second and third respondents if it was in fact a loan.
Regarding the car, the second and third respondents claimed that in early 2007, the husband requested to borrow $50,000 from them to purchase a car for the wife, which they agreed to. Following this conversation, they assert that between 14 February 2007 and 16 August 2007, they transferred a total of $50,281.42 to the husband for the purpose of purchasing the wife Motor Vehicle 3.
While such a car was undoubtedly purchased with funds provided by the second and third respondents, under cross-examination, the husband’s assertions as to approximately $50,000 being spent were revealed as hollow. They firstly conflicted with his oral evidence that $30,000 or $40,000 had been spent but that he could not recall.
Further, while he asserted in his oral evidence that the purchase occurred in late 2007, necessary timing for the husband and wife to have received the monies identified in the schedule of remittances attached to the borrowing schedule, the bill of sale was dated before this, in early 2007. This undermined the notion that the total remittances were for the car.
Further, that bill of sale set out full payment at $28,000.[15] In explanation of the divergence between this amount and that asserted by the husband, the husband asserted that the seller required an additional cash payment. This explanation was particularly unpersuasive in a context where the list of remittances annexed to the borrowing declaration showed that as at the time of sale only $37,356.34 had been remitted. Even if cash was taken as a supplement, the remittances do not explain how the full payment could have been made. Ultimately those remittances post-dating the purchase were conceded by the husband do not necessarily relate to the car, but to other expenses.
[15] Exhibit W15
In his oral evidence the husband appeared to assert that he and the wife had repaid $60,000 of these monies, but that the wife had prevented him from repaying more. This contradicts the evidence of his parents.
In summary, it may be accepted that the various payments were made by the second and third respondents, but not that they were characterised as loans at the time of their payment to or through the husband.
Ultimately these claims of debts were abandoned as excluded by the operation of the relevant limitations legislation. However, in general terms the claims in relation to the above monies made by the husband and second and third respondents were lacking in credibility, insofar as they attempted to ex post facto characterise the various payments as constituting a significant accumulation of debt to the second and third respondents. This does not, however, deny significance to the various payments as contributions made by the second and third respondents on behalf of the husband to the property of the husband and wife that is now the subject of the s 79 claim between them.
The Suburb K property
The husband and wife purchased, in their joint names, a property at O Street in Suburb K in Region DD in late 2008 for $460,000. It has an agreed value between the husband and wife of $840,000, and an outstanding mortgage of $159,128.
That property is currently subject to a claim by the second and third respondents who assert that the entire beneficial interest is theirs. The husband supports their claim, while the wife asserts that the beneficial ownership rests with the title.
It is accepted that it was purchased, unencumbered, with funds provided by the second and third respondents which were transferred into an account in the sole name of the husband.[16]
[16] The second respondent’s affidavit filed 3 November 2023, [10] and the wife’s affidavit filed 7 November 2023, [216].
The property is subject to mortgage in the sum of $159,128, for which the husband and wife bear responsibility. This loan is contended to have increased by $6,940 as a result of the husband’s failure to comply with orders that he make the loan payments.
It is further contended by the second and third respondents to have necessitated a loan from them to the husband, drawn by the husband between May 2019 until May 2022, to meet mortgage repayments totalling $73,947.81 that the husband was liable to pay pursuant to interim consent orders made 10 May 2019.
As noted above, it is contended by the husband that the property was renovated with the $100,000 advanced by the second and third respondents for the husband’s and wife’s migration.
The second and third respondents make, in accordance with the points of claim document filed by them, alternative claims in equity in respect of the Suburb K property as set out below.
THE EQUITABLE CLAIM
The claim made by the second and third respondents, as pleaded in their points of claim document, and as supported by the husband, is that the Suburb K property is held by the husband and wife on trust. This was described by the second and third respondents as either “a trust of the kind the subject of Calverley v Green (1984) 155 CLR 252” (a purchase money resulting trust) or “a trust of the kind the subject of Butler v Craine [1986] VR 274 at 283” (a common intention constructive trust) for the second and third respondents, the husband and wife holding the title, the second and third respondents the beneficial interest.
The Calverley v Green claim
This claim is reliant upon a resulting trust based upon the contribution by the second and third respondents of the purchase price of the property. In Calverley v Green a resulting trust was presumed to arise in favour of a purchaser in the proportion in which the purchaser contributed the purchase money. The resulting trust, however, was determined not to arise where there are circumstances that remove reason to presume that the title does not sit with the beneficial interest, such as where a so-called presumption of advancement arises.[17] A presumption of advancement (and hence no resulting trust) has been held to arise where property is purchased in the name of a child.[18]
[17] Calverley v Green (1984) 155 CLR 252, 247 (Gibbs CJ); 256 (Mason and Brennan JJ).
[18] Ibid 247 (Gibbs CJ).
The court emphasised that both presumptions are subject to evidence that contradicts that it was the intention of the contributor of the funds, at the time of the purchase, to either retain or to gift the beneficial interest.[19] That intention, or state of mind, usually is not inferred from silence but from the words and actions of the parties.[20]
[19] Ibid 251 (Gibbs CJ).
[20] Ibid 261 (Mason and Brennan JJ)
The determination of whether a resulting trust arises has recently been further considered by the High Court in Bosanac.[21] That case considered closely the nature of the presumptions of resulting trust and advancement, and the significance and proof of the intent of the provider of the purchase funds. Three judgments were delivered by the court.
[21] Bosanac v Commissioner of Taxation [2022] HCA 34.
Chief Justice Kiefel and Gleeson J explained the effects and interrelationship of the presumptions, or so-called presumptions as follows:
[13] The presumption can be rebutted by evidence from which it may be inferred that there was no intention on the part of the person providing the purchase money to have an interest in land (or other property) held on trust for him or her. The presumption cannot prevail over the actual intention of the party paying the purchase price as established by the overall evidence, and where more than one person pays the purchase price, as here, regard is necessarily had to evidence of each of their intentions.
[14] The presumption of advancement allows an inference as to intention to be drawn from the fact of certain relationships. It applies to transfers of property from husband to wife and father to child, but in Nelson v Nelson this Court accepted that there is no longer any basis for maintaining a distinction between a father and mother so far as concerns transfers of property to a child. Originally the relationships were considered by themselves sufficient to afford "good consideration" for the conveyance, but a rationale for the presumption has come to be found in the prima facie likelihood that a beneficial interest is intended in situations to which the presumption has been applied.
[15] On one view, the presumption of advancement is not strictly a presumption at all. It may be better understood as providing "the absence of any reason for assuming that a trust arose". At an evidentiary level, it is no more than a circumstance which may rebut the presumption of a resulting trust or prevent it from arising. It too may be rebutted by evidence of actual intention.[22]
[22] Ibid [13]-[15] (Kiefel CJ and Gleeson J).
Importantly, Kiefel CJ and Gleeson J observed at [21] that the court’s concern is to determine intention at the point when the property was purchased. That concern is the necessary context for considering the presumptions, and accordingly the strength of the presumptions will vary from case to case. They accepted that the presumptions are circumstances readily rebutted by comparatively slight evidence,[23] and that “inferences to the contrary of the presumptions as to intention may readily be drawn.”[24]
[23] Ibid [22].
[24] Ibid [31]
At [32] Kiefel CJ and Gleeson J accepted that the “question of intention is entirely one of fact.” They appeared to accept what had been said by Cussen J in Davies v The National Trustees Executors and Agency Co of Australasia Ltd [1912] VLR 397, that attention must remain fixed on the intention of the purchaser or transferor at the time, that any matter relevant to that issue is admissible, and “that evidence of that person’s thinking at the time might be accepted, although it would be received ‘with caution’”.[25] In Bosanac there was no such direct evidence of intention.
[25] Ibid [33].
Similarly, Gageler J identified that it is intention, either proved or presumed, that is at the heart of the formation of any trust. In the absence of direct evidence, or where the indications of intention are equal or equivocal, he observed, the presumptions are determinative. The presumption of a purchase money resulting trust is answered completely by a presumption of advancement (which he, like Kiefel CJ and Gleeson J, observed that rather than being a presumption, advancement is a circumstance of evidence) and where one arises, leaves no basis to assume that a trust arose.[26] Again, like the others he identified at [66] that:
Whether any, and if so what, inference is then to be drawn about the actual intention of the contributor and the purchaser falls to be determined as an ordinary question of fact on the balance of probabilities. "It is the intention of the parties in such cases that must control, and what that intention was may be proved by the same quantum or degree of evidence required to establish any other fact upon which a judicial tribunal is authorized to act." Just as the standard of proof of intention is the ordinary civil standard, there are no special rules about proving intention. No predetermined weight is to be given either to the fact of a contribution having been made or to the categorisation of the relationship between the parties. The significance of each of those circumstances falls to be assessed within the totality of the circumstances of the case.
[26] Ibid [53] (Gageler J).
At [94] Gordon and Edelman JJ described a purchase money resulting trust as one that arises by “objective intention.” It is in that context that the issues of the so-called presumptions arise:
[103] Presumption of resulting trust – what is presumed and when and how does the presumption arise?
[104] Two immediate questions arise – when and how does a presumption of resulting trust arise and what is presumed? Relevantly in the case of "voluntary conveyance resulting trusts" and "purchase money resulting trusts", what is presumed is a declaration of trust by the person who either transfers property, or pays the whole or part of the purchase price of it. But whether that is presumed – whether that inference is drawn – depends on issues of evidence and proof of a resulting trust. And in answering those questions, it is necessary to address the matters raised by Deane J in Calverley.
[105] The presumption of resulting trust – the standardised inference that allocates the onus of proof – serves the same function as a civil onus of proof and operates to resolve a factual contest when the relevant evidence is "uninformative or truly equivocal". It arises if there be a paucity of evidence as to an intention to declare a trust. Put in different terms, where the presumption arises, the existence of a resulting trust is an inference drawn in the absence of evidence when, for example, a purchaser of property causes it to be transferred to another or when a person contributes to the purchase of property which is registered in the name of another. But such an inference – of resulting trust – cannot arise where a plaintiff has led evidence that tends to establish an objective intention or the lack of an objective intention to create a trust.
[106] As a resulting trust is an inference drawn in the absence of evidence, it is necessary to start with the objective facts. It is a factual inquiry. The question may be framed in these terms: what were the parties' words or conduct at the time of the transaction or so immediately thereafter as to constitute part of the transaction – the objective facts?
[107] There are three dimensions to that factual inquiry.
[108] Where the objective facts based on evidence led by the plaintiff tend to establish an objective intention that a provider of part of the purchase price would hold an equitable interest as to a particular proportion of a particular property, there will be an express trust which satisfies the three certainties of intention, subject and object. That is the case that the defendant has to meet. There is no need for a presumption of resulting trust to shift the onus of proof. The presumption of resulting trust does not arise. It is unnecessary.
[109] On the other hand, where the objective facts based on evidence led by the plaintiff tend to establish, even weakly, an objective intention inconsistent with a declaration of trust, then there will be no case for the defendant to meet. Again, the presumption of resulting trust will not arise. In this circumstance, the fact that there is a spousal relationship is one of the objective facts: at best it merely reinforces, and is not determinative of, the objective intention of the parties established by the objective facts.
[110] Where, however, the objective facts based on evidence led by the plaintiff are neutral, truly equivocal, non-existent or uninformative as to the objective intention of the parties, then, consistent with the weak presumption of resulting trust, an inference can be drawn of a declaration of trust by the provider of part of the purchase price. That weak inference will be the case that the defendant has to meet.
...
[113] There is also an important temporal dimension to the factual inquiry. The objective intention of the parties is determined at the time when the trust was purportedly created – here, when the property in issue was purchased. Apart from admissions against interest, the only evidence relevant and admissible as to the parties' objective intention is their acts and declarations before or at the time of the transaction or "so immediately [thereafter] as to constitute a part of the transaction". Subsequent events and conduct are otherwise not admissible.[27]
[27] Ibid [103] – [110]; [113] (Gordon and Edelman JJ).

The three judgments within Bosanac consistently emphasise the centrality of intention on the part of the payer of the purchase monies to the formation of a trust. The inquiry as to whether the beneficial interest is held on trust is an inquiry as to the intent of the payer at the time of the payment of the purchase monies. They are further consistent as to the limited occasions on which the so-called presumptions will be determinative, being occasions where the circumstances of the transaction, and evidence in relation to the transaction are insufficient to determine intention.
While, at face value, there may be some divergence as to whether subsequent statements as to intent may be drawn on to prove the relevant intent at the time of the transaction, on deeper consideration this is not so.
Chief Justice Kiefel and Gleeson J seemingly accepted evidence of a person’s thinking at the time was admissible, Gordon and Edelman JJ rejected statements made beyond the time of the transaction (unless against interest). Justice Gageler described at [67] a test of relevance:
Where evidence relevant to intention is adduced, the presumption and the counter-presumption are therefore of practical significance only in rare cases where the totality of the evidence is incapable of supporting the drawing of an inference, one way or the other, on the balance of probabilities about what contributors and purchasers actually intended when they participated in the purchase transaction.
A number of observations should be made about this potential divergence. Firstly, Bosanac did not involve statements by either Mr or Mrs Bosanac as to intention at the time of the transaction, and so, insofar as that issue was addressed in the judgment it was obiter dicta, and not central to the resolution of the appeal.
Secondly, Gordon and Edelman JJ commented in the manner that they did on the basis of what had been said in Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278 at 300 [65]:
In Charles Marshall, the plaintiffs were daughters of the donor and the Court said that the presumption of an intention of advancement, that they be made beneficial as well as legal owners of the shares, might be rebutted by evidence manifesting a contrary intention. Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ said of the rebuttal of presumptions by manifestation of a contrary intention:
“Apart from admissions the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase (in this case before or at the time of the acquisition of the shares by allotment) or so immediately thereafter as to constitute a part of the transaction.” (emphasis added)
However, as Malayan Credit illustrates, whilst evidence of subsequent statements of intention, not being admissions against interest, are inadmissible, evidence of facts as to subsequent dealings and of surrounding circumstances of the transaction may be received.
The reference to subsequent statements is consistent with s 66A of the Evidence Act 1995, which allows previous representations as to intention where they are a contemporaneous representation of that intention. Given that it is the intention at the time of the transaction that is relevant, such a statement is temporally restricted in a manner similar to that described above. I expect that this was the manner of restriction referred to by Gordon and Edelman JJ.
It may then be considered that Kiefel CJ and Gleeson J were commenting on evidence given as to previous intent, whilst Gordon and Edelman JJ were discussing evidence of a previous representation as to intention, given after the fact, and outside of court.
The Butler v Craine claim
The relief identified at Butler v Craine [1986] VR 274 at 283, as pleaded in the second and third respondent's points of claim is reliant upon a constructive trust based upon the common intention of the parties. In Butler v Craine Marks J identified three elements to find the particular constructive trust that was determinative in that case. The first is that the parties must form a common intention as to the ownership of the beneficial interest in the property. This does not require an express agreement, although an actual common intention must be able to be inferred otherwise, such as from the conduct of the parties. The second is that the claimant must have acted to his or her detriment in reliance upon that common intention. The third is that it must be a fraud upon the claimant for the other party to deny the beneficial interest.
It may be considered that if the second and third respondents succeed in the resulting trust claim, this constructive trust aspect of their claim is redundant.
It may also be considered that if the second and third respondents fail in establishing the necessary intention in respect of their resulting trust claim, they will likewise have failed to establish a common intention sufficient to establish this aspect of their claim.
The evidence as to intention
The points of claim document filed by the second and third respondents identified a suite of factual contentions relied upon in support of their claims in respect of the Suburb K property which may be relevantly summarised as follows:
(1)They assert a conversation in 2007 between the husband and the second and third respondents, where it was suggested that the second and third respondents would provide funds to purchase a property for their retirement, but to be held in the husband’s and wife’s names to assist the wife with her migration.
(2)They assert a conversation between the husband, wife and second and third respondents prior to the purchase, that the purchase was for the second and third respondents to retire even though the purchase was to be in the husband’s and wife’s names.
(3)They assert an agreement was prepared by lawyers in City NN, at the direction of the second and third respondents, executed in early 2008 by the husband and second and third respondents, setting out the agreement to provide purchase funds of $400,000 to $600,000 AUD, allowing the use of the property, including for immigration purposes by the husband and wife, a prohibition on renting the property without the consent of the second and third respondents, a prohibition on selling or using the property as security without consent, and for the future return of ownership to the second and third respondents.
(4)The subsequent transfer of $520,828.49 between January and November 2008 to the husband’s account.
(5)The purchase of the Suburb K property in late 2008 for $460,000 in the names of the husband and wife.
(6)The points of claim document then identified that the husband and wife subsequently resided in the property, used it as security for a loan, and leased the property out absent the approval of the second and third respondents, but that from about August 2018 the second and third respondents have occupied the property, and met mortgage repayments between May 2019 and May 2022 of $73,947.81 to prevent default.
(7)The second and third respondents further contend that they joined the proceedings in May 2020 after discovering orders had been made by consent by the husband and wife for the sale of the property.
A number of these assertions were not contentious. It was accepted that the monies had been advanced, and that the property had been purchased in the husband’s and wife’s names. The Suburb K property was acquired in the husband’s and wife’s names as joint tenants. The purchase was settled in late 2008 and the parties moved into the property the next day.[28]
[28] Affidavit of the wife filed 7 November 2023, [216]; W30.
It was accepted that the property had been used for security and had been leased out.
The key matter of contention was as to whether there was the agreement to transfer the title to the second and third respondents, or whether the purchase was for the benefit of the husband and wife.
Intention regarding the Suburb K property
The second respondent deposed[29] that a conversation took place between herself, the third respondent and husband at an unspecified time between 2003 and 2007, wherein the husband proposed that the second and third respondents buy a retirement home in City KK in his and the wife’s names. The husband purportedly assured that he could sign a loan agreement or contract on behalf of the wife as they would soon marry.
[29] Affidavit of the second respondent filed 3 November 2023, [7].
The husband, as identified below, asserted that the conversation had taken place during a visit by he and the wife to City NN in late 2007.
Under cross-examination the second respondent claimed a poor memory as to when they were in City NN (despite the clarity with which she had described the purported conversation).
The second respondent further described that at a later point the husband told her that the property in Suburb K had been identified, and that the third respondent said that it could be used for the husband’s and wife’s immigration, and the second and third respondents’ immigration and retirement. She then described a conversation between the second and third respondents and the husband and wife, where she described that the purchase was for the second and third respondents to live in on retirement, to save rent for the husband and wife and to help the wife migrate to Australia, but that the house was the second and third respondents. She said that both the husband and wife expressed their understanding.
The second respondent asserted that the third respondent then engaged lawyers in City NN to draft an agreement, signed in early 2008 (exhibit W3), and a supplementary agreement of late 2009 (exhibit W6).
When cross-examined about exhibit W3, the second respondent described that the agreement was necessary to avoid a scam, to ensure that the house could not be occupied by someone else, and to ensure that the wife could not refuse to return the house. She also said that the agreement was to avoid litigation. When it was put to her that this meant that it was vital for the wife to execute the document, the second respondent explained, firstly, that the wife asked the husband to sign it, and that it was the wife’s promise that was the most important aspect.
The second respondent described the funds being deposited into the husband’s account.
The third respondent deposed to conversations in similar (and at times identical) terms.[30]
[30] Affidavit of the third respondent filed 9 November 2023, [7].
He said that when the Suburb K house was identified, he described that it would be put into the names of the husband and wife temporarily, and only to help the wife to immigrate to Australia. He said that the husband and wife agreed. He described the production of the agreements at exhibits W3 and W6 in identical terms to the second respondent.
When cross-examined the third respondent described that exhibit W3 was to ensure that the husband understood their rights and to protect the second and third respondents. He nominated the date of the production as 2006 or 2007, but said that he could not recall the exact day.
The husband deposed[31] to a conversation occurring between himself and his parents in City NN in or around late 2007 in identical terms to those set out by his parents, proposing the purchase of a retirement home for them in City KK. Despite in his affidavit asserting that the wife was also in City NN, she was not described as taking part in or being present for the purported conversation.
[31] Affidavit of the husband filed 14 November 2023, [42].
Under cross-examination the husband was asked where the wife was for this conversation, to which the husband asserted that the wife would make him ask his parents regarding money (although he also suggested that she would approach them independently of him). He then asserted that the wife was in a different city at the time of the conversation. When it was pointed out that this was inconsistent with his affidavit which stated that they were both in City NN he said that this was correct.
He further deposed to locating the Suburb K property in about late 2008, and to a further conversation wherein he and the wife expressed agreement to the idea that the house would temporarily be in their names, but would be transferred to the second and third respondents on their retirement and immigration to Australia. He described shortly thereafter (maybe “straight away”) being provided with a document (exhibit W4) to that effect and that the wife told him that he could sign on her behalf.
Exhibit W4 is an undated document described as a borrowing declaration signed by the husband that describes that from early 2008 the husband borrowed $520,978.49 to cover living costs and the (presumably his) parents’ immigration arrangements. It describes that of that fund, $501,378.49 was to buy a house for his parents, whilst $19,600 was used for living expenses for the husband and wife. The document also asserts that in 2007 $100,000, purportedly refunded by the government, was spent on refurbishment of the Suburb K property, and that this was known to a “[Mr OO].” It may be observed that the Suburb K house was not even identified as the object of purchase until late 2008, rendering the assertion as to 2007 as wrong. The asserted timing of the document was also inconsistent with the idea that the $100,000 had been spent on the renovation, as, according to the husband, the document was signed following a conversation had at the time that the Suburb K property was identified as an appropriate purchase by he and the wife. No opportunity had then arisen to renovate it.
Under cross-examination about this document the husband asserted a lack of recollection. The husband denied that this document was prepared as part of this case, or a fabrication. It however should be taken to be a document prepared at a significantly later time than that asserted by the husband and, accordingly, in circumstances different to those asserted by him. Exhibit W4 should be considered to be a fabrication designed to bolster the claim that the Suburb K property is held beneficially by his parents.
The husband said that the funds were deposited into a joint account held by him and the wife.
The wife deposed that the Suburb K property was a gift in accordance with cultural practice.[32] She did not describe any conversation to such effect with the husband’s parents, nor to any conversation at all in relation to the purchase of the property. Rather she says that her mother described a conversation with the third respondent wherein he had asserted that he would gift a house in Australia for the husband’s and wife’s marriage. She denied knowledge of the conversation described by the husband and second and third respondents of late 2007, and denied the conversations asserted by them wherein she agreed to such an arrangement, or that she directed the husband to execute such an agreement on her behalf.
[32] Affidavit of the wife filed 7 November 2023, [214].
While the wife accepted that funds had been transferred, she denied that it was into a joint account. She also described that a portion of the purchase price was met through a first homeowner’s grant in the sum of $14,000, applied to the stamp duty.
The wife described that exhibit W3 (set out below) had not been seen by her until it was produced to her lawyers in 2021.
Exhibit W3
Exhibit W3 sets out that funds would be provided of between AUD $400,000 to AUD $600,000, that the husband and wife would be able to occupy and use the property for immigration purposes prior to the husband’s parents immigrating to Australia, that the husband and wife would transfer title to them following their immigration, and restraining the husband and wife from encumbering or selling the property, or renting it out without approval.
Exhibit W3 was dated as executed by the husband and second and third respondents on 1 January 2008. This dating was consistent with the description of the conversation by the husband and second and third respondents as occurring in City NN. It was not consistent with the descriptions given by the husband and second and third respondents that the document was prepared following the identification of the Suburb K property, with such property not being identified until late 2008.
More definitively, the dating of the document as early 2008 was inconsistent with the inclusion of the husband’s and wife’s Australian passport numbers on the document. The wife was issued with an Australian passport in late 2008, the husband not having citizenship until after late 2008.[33]
[33] Exhibit H1
These matters could only lead to a conclusion that the document was a falsehood, created and executed some time after the husband received his citizenship and was issue with a passport.
Given the timing of the husband’s and wife’s receipt of Australian citizenship, predating the settlement of the Suburb K property, the part explanation of the property being placed in their names in aid of the wife’s immigration is also undermined.
This undermining of the claimed provenance of exhibit W3 led to a flurry of activity and explanation.
The husband gave a vague explanation that the document was a reissue of an earlier prepared document, with the addition of passport numbers, implying that there was an importance to the document bearing the various passport details as explanation of the reissue.
However, the husband’s and second and third respondents’ affidavits contained no hint of having executed multiple iterations of the document.
A call was then made to the second and third respondents for any such earlier iteration of the document.
That call was purportedly answered the following day. The proceedings were stood down to enable the second and third respondents to produce affidavits attesting to the circumstances of the document.
The document (exhibit R5) that was produced (in the language of Country LL) appeared to replicate exhibit W3 save for the omission of the husband’s and wife’s passport numbers and the second and third respondents’ identity numbers.
The husband was unable to explain why this earlier version of the document bore neither his parents’ Country LL identity numbers, nor those of the husband and wife (given that they had not yet become Australian citizens), assuming, from earlier answers, that such identification was of sufficient importance to, in part, warrant the reissue of the document as exhibit W3.
The second respondents explained that in answer to the call, they contacted the third respondent’s sister in City NN who obtained it from a filing cabinet and sent a copy. In their supplementary affidavits filed on the second day of the trial they further explained that the version containing the passport numbers had been prepared “sometime in early 2009”[34] upon the husband providing both his and the wife’s passport numbers, with the document being forwarded for execution to the husband via a social media platform. They explained that it was dated the same as the original as it was, in effect, the same.
[34] Affidavit of the second respondent and affidavit of the third respondent, both filed 5 December 2023, [1(d)].
Intriguingly, this account was again undermined by the timing of the obtaining of a passport. The husband did not receive his Australian passport until mid-2009, a timing inconsistent with preparation and execution of exhibit W3 in early 2009. He however sought to explain his passport number appearing on a document bearing a date prior to the issue of his passport as being explicable by him receiving his passport number in correspondence prior to receiving his passport. This appeared to be no more than a fabrication made on the run to explain the problem in the evidence.
Both exhibits R5 and W3 were highly problematic.
Exhibit W3 was falsely presented as a document executed in early 2008. It could not have been. The production of a document at that stage was also inconsistent with the explanation that the Suburb K property had been identified.

Whilst initially characterised as a mixture of loans and gifts from the wife’s parents, their provision of about $80,000 for the F Franchise, City KK and monies for living expenses and in various tranches of about $270,000 toward the business interests were not characterised as loans in these proceedings, rather being characterised as contributions on the part of the wife by virtue of her family.
These too constituted a significant contribution on behalf of the wife, but not to the extent effected by the husband’s family.
Although both families contributed to the wedding celebrations, no cogent reasons for considering these matters to be of weight were identified.
The husband and wife appeared to both engage in significant work in the various business ventures and care of the children until their separation, contributing in these realms in varying degrees.
Noting the involvement of both the husband’s and wife’s families, and the sustained strong efforts of both the husband and wife in relation to their business interests and the care of the children, by the point of separation it may be considered that the contributions favoured the husband over the wife 57.5-42.5.
Separation marked a point of significant change.
The husband, by virtue of consent orders, took on responsibility for the outgoings on the parties’ real property. This significant contribution on his part was ameliorated by his various failures to comply with those orders, but to the extent of his compliance. It is a contribution made out in large part by the indebtedness for such that he now owes his parents.
The husband’s contributions toward the upkeep of the children have been limited, and his direct involvement with the care of the children has been non-existent, even if his preference may have been for a different arrangement.
Otherwise, his ongoing contribution to the property of the parties appears limited, he conceding such limitations on his capacity as to cause his parents to employ him through their own corporate entity.
In contrast, the wife has worked hard to effect the maintenance and preservation of the parties’ business interests, albeit with limited success, given their lack of profitability. The wife has exercised the sole care of the children for a period in excess of five years. She has done so with minimal financial support from the husband who has retained for himself the bulk of his earnings, the wife relying upon a minimal income and family tax benefits.
These extended post separation efforts on the part of the wife see the contribution balance swing back to 50-50.
The s 75(2) matters point to a further adjustment in favour of the wife. She presently has the ongoing sole care of the children, in circumstances where the past history of contribution by the husband toward the children gives little scope for optimism that anyone other than the wife will bear the bulk of the burden of the expense of raising the children. While, pursuant to these orders she seeks to and will retain a half interest in one F Franchise, that business has not proven lucrative for a number of years. Whilst it may be accepted that it has been profitable in the past, and may be profitable again, its prospects are at best uncertain. She is, however, a university educated person with significant business experience, and some confidence for her future prospects persists despite the uncertainty of the business venture.
While it is also true that if the husband pursues a career in business, his prospects are likewise somewhat uncertain, the husband has been able to use his education to obtain a significant income employed in the government sector, demonstrating a reliable fall-back position for him should he choose to engage in employment rather than business.
No orders are sought to split or move superannuation interests. The husband is in a significantly better position than the wife in respect of superannuation, a matter further emphasising a future differential between the parties. However, in observing such a differential, it should also be noted that in terms of the property retained by each party, the greater superannuation interest retained by the husband is not one that he will have access to for a significant number of years. Given its inclusion in the overall split that quality of the superannuation will necessitate a modification of the percentage split in favour of the husband.
That differential in position calls for an adjustment in favour of the wife to 60-40.
On the pool of property as identified above, of a net value of approximately $2,857,000, the effect of the orders will be for the wife to receive a combination of assets and liabilities constituting a net value of approximately $1,714,000, whilst the husband will be allocated a combination of assets and liabilities constituting a net value of approximately $1,143,000.
CONCLUSION
The orders sought by the second and third respondents firstly seek relief based upon their claim upon the Suburb K property. The orders should not be granted. No declaration should be given in relation to the chattels held at the Suburb K property, as such order were not addressed and evidence to support such a declaration was not identified.
Secondly, the second and third respondents seek declaration in respect of loans advanced to, and orders for the payment of loans advanced to the husband and wife. That debt is assessed at $229,916.
Thirdly, they seek relief in respect of compelling payments from the various corporate entities. A basis for such relief has not been established.
Fourthly, they seek orders related to the removal of the second respondent as a director and shareholder of P Group Pty Ltd, and consequential orders in respect of such.
The foundation for such relief lies firstly in the claims, unproven, that the second and third respondents invested in P Group Pty Ltd and have ownership of that entity in a beneficial sense. Secondly, the claim arises from the finding that the second respondent did not execute the relevant documents to effect her resignation and the share transfer.
The difficulty with the provision of such relief is that I cannot be satisfied that the beneficial interest in P Group Pty Ltd sits with the second respondent. Rather it sits with the husband and wife who, but for minor involvement form the second respondent, developed, ran and financed the various businesses. Under such circumstances the grant of the relief would be a distortion of the true position. The relief should not be granted.
While the second and third respondents are owed further money by the husband, for post separation loans, they seek no order in relation to such but ask that the orders ensure that the capacity for the repayment to be made is not prejudiced by the terms of the orders.
The orders sought by the wife seek the removal of a caveat held by the second and third respondents upon the Suburb K property. Consistent with the determination in relation to their lack of interest in the property such an order should be made.
The wife’s orders sought seek that she retain the Suburb FF property, and the husband the Suburb K property. They seek the disposal of the assets held by P Group Pty Ltd (F Franchise) with a split of proceeds in accordance with the overall percentage split. Such a move sensibly provides a mechanism for the ending of financial relations and the parties to realise any benefit that may flow from the disposal of that asset. The wife seeks to retain her interest in R Pty Ltd (half share in the F Franchise, U Centre), presumably in a hope that she will receive income from such, with the parties retaining various other chattels and their superannuation. The parties’ joint involvement with the S Family Trust, an entity without value, should also be brought to an end as an aspect of finalising the parties’ financial relations.
Orders for indemnification in relation to assets held by a particular party are sought, as is the winding up of the now defunct entity Q Pty Ltd.
The husband will be responsible for the joint debt owed to his parents (in addition to the debt that he otherwise owes to his parents in relation to post separation borrowings), a factor that the allocation of the property of the parties will reflect to ensure that the burden is evenly cast upon the husband and wife.
Orders should be generally made in the scheme proposed by the wife, but effecting the percentage split determined by this judgment. Such orders operate to end the financial relations to the parties.
This will mean that the orders will provide for the wife to receive assets of a net value of $1,714,000, but of a gross value of $1,723,000 along with her credit card liability. The husband will receive assets of a net value of $1,143,000, but of a gross value of $1,532,000 along with the outstanding mortgage liability for Suburb K and the parties’ declared debt to the second and third respondents, together totalling $389,000.
Given that under the scheme of orders for the allocation of the assets, the husband will receive combined assets to the value of approximately$1,690,000, this will necessitate a cash payment to the wife of $158,000.
Such orders untangle the entwined financial interests that the parties have generated through their relationship, reflect their contributions and reasonably anticipate their future needs and provide for a just and equitable resolution.

I certify that the preceding three hundred and fifteen (315) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.
Associate:
Dated: 25 January 2024
SCHEDULE OF ORDERS SOUGHT BY THE PARTIES
Applicant Husband
1.That the net property of the parties, after any amount owed to either of their parents is repaid, be divided equally between the parties.[41]
[41] Husband’s Initiating Application filed 3 September 2018.

On the first day of trial, the husband clarified the orders he sought to be the following:
2.The husband and wife to return all money owed to his parents (pursuant to the amount claimed by his parents).
3.The Suburb K property to be transferred to his parents and for the wife to pay the mortgage on the property out in full.
4.The husband to keep his superannuation and personal property from the Suburb FF property, as well as specified chattels.
5.The Suburb FF property to be sold and the proceeds to be split between the husband and wife. The husband could not further articulate how this was to be split as he was unsure of the extent of the liabilities on the parties’ businesses.

Respondent Wife
1.All previous property orders are hereby discharged.
2.The second and third respondents’ applications be dismissed.
3.Within 7 days from the date of these Orders, the second and third Respondents do all things necessary to withdraw the caveat (dealing …) lodged over the property situate at and known as O Street, Suburb K in Region DD, being the whole of the land more particularly described in Certificate of Title Volume … Folio … Edition … (“the Suburb K property”).

Payment
4.Within 60 days of the making of these orders, the Husband pay to the Wife the sum of $404,500 (being 70% of the net value in the parties’ property pool taking into account the Orders provided below) (‘the Date’ and ‘the Payment’, respectively).
5.Contemporaneously with the Payment:
(a)The Wife do all acts and things necessary to transfer to the Husband, at the Husband’s expense, all of her interest in the property situate at and known the property situate at and known as O Street, Suburb K in Region DD, being the whole of the land more particularly described in Certificate of Title Volume … Folio … Edition … (“the Suburb K Property”).
(b)The Husband do all acts and things necessary to cause the joint loan account to the ANZ Bank loan account number …35 in the names of Mr Xin and Ms Qinlang (“the Suburb K loan”) to be refinanced into his sole name with a financial institution of his choosing and to payout the Suburb K loan in full;
(c)The parties do all acts and things necessary to enable ANZ Bank to discharge mortgage dealing … securing the Suburb K loan over the Suburb K property;
(d)The husband indemnify the wife against all payments and liability pursuant to any mortgage or other encumbrance secured over the Suburb K Property and all apportionable rates, taxes and outgoings of or with respect to the Suburb K Property of whatsoever nature and kind.

On Default of the Payment
6.In the event that the whole of the Payment has not been made by the Date, or the husband has not refinanced the mortgage secured over the Suburb K Property into his sole name then:
(a)The wife be appointed the sole trustee for the sale of the Suburb K property; and
(b)In her capacity as the sole trustee for the sale of the Suburb K property, the wife do all acts and things and sign all documents and do all things as may be required to forthwith place the Suburb K Property on the market for sale altogether out of Court (‘the Sale’) and upon completion of the Sale, the proceeds of the sale be applied as follows:
(i)First, to pay all costs, commissions and expenses of the Sale;
(ii)Second, to discharge any encumbrance affecting the Real Property;
(iii)Third, so much of the balance of the Payment then outstanding together with interest at the Family Law Rules penalty interest rate to the wife; and
(iv)The balance to the husband.

Pending the Payment
7.Pending the Payment or the Sale:
(a)The husband have the sole right to occupy the Suburb K Property and during such right of occupation the husband pay all instalments pursuant to any mortgage and all rates, taxes and like apportionable outgoings over the Suburb K Property as and when they fall due; and
(b)Save to give effect to these orders, neither party encumber the Suburb K Property without the consent in writing of the other party.

Suburb FF Property
8.Within 28 days from the date of these Orders:
(a)The Husband do all acts and things necessary to transfer to the Wife, at the Wife’s expense, all of his interest in the property situate at and known as EE Street, Suburb FF in Region DD, being the whole of the land more particularly described in Certificate of Title Volume … Folio … Edition … (“the Suburb FF property”).

9.Pending the transfer of the Suburb FF property:
(a)The Wife have the sole right to occupy the Suburb FF property;
(b)The Wife indemnify the Husband against all outgoings with respect to the Suburb FF property, including but not limited to repayments for rates, land tax and the like; and
(c)Neither party shall mortgage or otherwise offer the Suburb FF property for security other than for the purposes of compliance with these Orders.

S Family Trust
10.Within 14 days from the date of these Orders, the Wife shall, at the Husband’s expense, do all things necessary to:
(a)Relinquish all beneficial entitlements and irrevocably disclaim her interest as a beneficiary of the S Family Trust (“the Trust”);
(b)Transfer to the Husband all of her right, title and interest in the following:
(i)Any loan accounts in the Trust;
(ii)Allocated but undistributed profits in the Trust;
(iii)Undistributed profits in the Trust; and
(iv)Any other liability owed by the Trust to the Wife.

11.The Husband indemnify, and keep the Wife indemnified with respect to any liability of the Trust, including any taxation liability (past, present or future).

Q Pty Ltd
12.Within 14 days from the date of these Orders, the parties do all acts and things to wind up Q Pty Ltd at the parties’ joint expense.

P Group Pty Ltd
13.The Husband and Wife as beneficial owners of the shares in P Group Pty Ltd do all acts and things necessary to sell the business known as T Franchise (owned and operated by the company P Group Pty Ltd), including instructing and securing the cooperation of Mr P (as the director and non-beneficial shareholder of P Holdings Pty Ltd).
14.That for the purpose of the sale referred to in Order 24 the Wife be appointed as the sole Trustee of the sale.
15.Upon settlement of the sale of the T Franchise, the Wife as Trustee of the sale, cause the net proceeds of sale to be applied as follows:
(a)70% to the wife
(b)30% to the husband

Other
16.The wife retain the following assets for her sole use and benefit:
(a)The Suburb FF property;
(b)Her interest in R Pty Ltd (trading as the F Franchise, U Centre);
(c)Monies in all bank accounts in her sole name;
(d)Furniture and household contents in her name, possession and control; and
(e)Her superannuation with Superannuation Fund 1.

17.Husband retain the following assets for his sole use and benefit:
(a)His Motor Vehicle 2;
(b)His interest in P2 Pty Ltd (if any), GG Pty Ltd, HH Pty Ltd, HH2 Pty Ltd, JJ Pty Ltd;
(c)His interest in S Family Trust;
(d)Monies in all bank accounts in his sole name;
(e)Furniture and household contents in his name, possession and control; and
(f)His superannuation with Superannuation Fund 2.

18.The wife be solely responsible for and indemnify the husband to any liabilities associated with:
(a)The Suburb FF property;
(b)R Pty Ltd;
(c)Any loans owed to the wife’s parents; and
(d)Any credit card liability in her name.

19.The husband be solely responsible for and indemnify the wife to any liabilities associated with:
(a)P2 Pty Ltd, GG Pty Ltd, HH Pty Ltd, HH2 Pty Ltd, JJ Pty Ltd;
(b)Any loans owed to the husband’s parents; and
(c)Any credit card liability in his name.

20.That save as otherwise provided for in these Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property (including chose-in-action) in the possession of such party as at the date of these Orders;
(b)Monies standing to the credit of a party in any bank account is to become the property of the party in whose name the account is registered;
(c)Each party shall forego any claim or claims the party may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to, or earned by, the other;
(d)Insurance policies remain the sole property of the owner named thereon;
(e)Each party shall be solely liable for, an indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f)Any joint tenancy of the parties in any real or personal property is hereby expressly severed.

21.If either party refuses, fails or neglects to execute any document necessary to put these Orders into effect seven (7) days after being requested to do so, and any such refusal, pursuant to Section 106A of the Family Law Act 1975 (Cth), the Registrar of the Federal Circuit and Family Court at Canberra be and is hereby appointed to execute such document in the name of such party, and the party in default is ordered to pay all reasonable costs incurred by the non-defaulting party for the purpose of enforcing these Orders.
22.Liberty to the Wife to apply with respect to implementation of these Orders upon seven (7) days’ written notice.
23.There be directions as to any application for costs.

Second and Third Respondents
The Suburb K Property
1.That pursuant to section 78 of the Family Law Act 1975, a declaration be made that the Huband and the Wife hold (and have at all times held) their legal interest in the Suburb K Property on implied trust and/or constructive trust for the Second Respondent and Third Respondent and accordingly, the Second Respondent and Third Respondent are beneficially entitled to the whole of the Suburb K Property.

2.That pursuant to section 78 of the Family Law Act 1975, the property described in Certificate of Title Volume … Folio … Edition … located at Section … Block … on Deposited Plan …, known as O Street, Suburb K in Region DD (“the Suburb K property”) be declared to be property of the Second Respondent and Third Respondent and simultaneously:
(a)That the Wife and the Husband do all acts and things and sign all necessary documents to transfer to the Second Respondent and Third Respondent, at the cost of the Husband and Wife, the whole of their right, title and interest in the Suburb K property;
(b)The Wife and Husband cause the home loan secured by mortgage over the Suburb K property (“the Suburb K Mortgage”) to be paid and the mortgage discharged at the cost of the Husband and Wife;

3.That all furniture, chattel and personal possessions in the Suburb K property be declared to be property of the Second Respondent and Third Respondent.

Loans
4.A declaration that the funds provided by the Second Respondent and Third Respondent to the Husband and the Wife and set out below and totalling $694,916.00 are loaned funds:
(a)$319,916.00 – for funds loaned to the Husband and Wife for business expenses, maintaining and constructing the Husband and Wife’s former matrimonial home at EE Street, Suburb FF in Region DD (“the Suburb FF property”) and purchasing items for their businesses;
(b)$375,000.00 – for payments that the Second Respondent and Third Respondent have made on behalf of the Husband and Wife for loan repayments on the Husband and Wife’s loans to TT Bank;

5.That the Husband and Wife repay a total of $694,916.00 or such other amount determined by this Honourable Court, to the Second Respondent and Third Respondent.

Investments
6.That the Husband and Wife pay to the Second Respondent and Third Respondent the total of $120,000 being a return of their initial investment / advance to Q Pty Ltd (t/as F Franchise, U Centre) and N Pty Ltd (t/a F Franchise, Suburb H).
7.The Husband and Wife pay the Second Respondent and Third Respondent an amount referable to the profits in Q Pty Ltd (t/as F Franchise, U Centre) and N Pty Ltd (t/as F Franchise, Suburb H) based upon their initial investment / advance to Q Pty Ltd and N Pty Ltd.
8.That upon the payments pursuant relief claimed at paragraphs 6 and 7, the Second Respondent and Third Respondent disclaim any right or interest in Q Pty Ltd (t/as F Franchise, U Centre) and N Pty Ltd (t/a F Franchise, Suburb H).

Further declarations
9.A declaration that the Second Respondent has been the sole director and secretary of P Group Pty Ltd at all times since mid-2016.
10.A declaration that the appointment of the Husband as secretary and director of P Group Pty Ltd in late 2016 was not valid.
11.A declaration that the appointment of the Husband as alternate director of P Group Pty Ltd in early 2017 was not valid.
12.A declaration that the appointment of the Fourth Respondent as an alternate director of P Group Pty Ltd on an unknown date prior to early 2017 was not valid.
13.A declaration that the appointment of the Fourth Respondent as a director of P Group Pty Ltd in early 2017 was not valid.
14.That the Fourth Respondent do all acts and sign all documents necessary to re-instate the appointment of the Second Respondent, as the sole director and secretary of P Group Pty Ltd.
15.That the Fourth Respondent, Husband and Wife indemnify the Second Respondent and P Group Pty Ltd against any liability of and incidental their actions during the period where Mr P and/or the Husband and/or the Wife purported to be or acted as a director, officeholder or agent of P Group Pty Ltd.
16.A declaration that at all times since late 2016, the Second Respondent has been the owner of 100 shares in P Group Pty Ltd.
17.A declaration that the transfer of shares from the Second Respondent to the Husband in late 2016 was not valid.
18.A declaration that the transfer of shares from the Husband to P Holdings Pty Ltd in early 2017 was not valid.
19.That the Fourth Respondent, as a Director of P Holdings Pty Ltd, do all acts and sign all documents necessary to transfer to the Second Respondent to transfer to the Second Respondent all shares in the P Group Pty Ltd held by P Holdings Pty Ltd.
20.That pursuant to s 175(1) of the Corporations Act 2001 (Cth), that P Group Pty Ltd’s register of members be corrected, so as to give effect to the above relief sought in paragraphs 9 to 19 hereof.
21.That pursuant to s 175(3) of the Corporations Act 2001 (Cth), that P Group Pty Ltd lodge a notice of the correction with the Australian Securities and Investments Commission to record or reflect the above relief sought in paragraphs 9 to 19 hereof.
22.That the Applicant and/or the First Respondent and/ the Fourth Respondent pay the Second and Third Respondent’s costs of and incidental to this Response.
23.Such further or other orders this Honourable Court deems appropriate.

SCHEDULE OF PARTIES

CAC 1782 of 2018

Respondents

Fourth Respondent:

MR P, P GROUP PTY LTD AND P HOLDINGS PTY LTD

File number(s):	CAC 1782 of 2018
Judgment of:	GILL J
Date of judgment:	25 January 2024
Catchwords:	FAMILY LAW – PROPERTY – where the husband and wife own a number of properties and joint business ventures – where the parties’ joint businesses have nil value – where the husband’s parents, as second and third respondents, claim a property is held on resulting trust as in Calvery v Green or constructive trust as in Butler v Craine for them by the husband and wife - claims dismissed – where second and third respondents seek declarations and repayment of a number of loans to the husband and wife – declaration that $229,916 was loaned jointly to husband and wife and all other claims as to loans dismissed – held 60-40 split of property pool in the wife’s favour – husband to indemnify the wife for the loan repayment to the second and third respondents. FAMILY LAW – PRACTICE AND PROCEDURE – where the husband’s evidence was found to be generally unreliable – where it was found that the husband and second and third respondents fabricated documents for the purpose of the proceedings.
Legislation:	Corporations Act 2001 (Cth) – s 601AD Evidence Act 1995 (Cth) – s 66A Family Law Act 1975 (Cth) – ss 75, 79 & 102NA
Cases cited:	Bevan & Bevan [1993] FamCA 95 Bosanac v Commissioner of Taxation [2022] HCA 34 Butler v Craine [1986] VR 274 Calverley v Green (1984) 155 CLR 252 Davies v The National Trustees Executors and Agency Co of Australasia Ltd [1912] VLR 397 Dickons & Dickons [2012] FamCAFC 154 Grier & Malphas (2016) 55 Fam LR 107 In the Marriage of Biltoft (1995) 19 Fam LR 82 In the marriage of Prince (1984) 9 Fam LR 481 Stanford v Stanford [2012] HCA 52 Strand & Strand (No 2) [2018] FamCAFC 247 Trevi & Trevi [2018] FamCAFC 173 Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278 Welch & Abney [2016] FamCAFC 271
Division:	Division 1 First Instance
Number of paragraphs:	315
Date of hearing:	4-12 December 2023
Place:	Canberra
Solicitor for the Applicant:	Litigant in Person
Counsel for the First Respondent:	Dr Smith
Solicitor for the First Respondent:	Dobinson Davey Clifford Simpson
Counsel for the Second and Third Respondents:	Mr Mellas
Solicitor for the Second and Third Respondents:	Lander & Rogers
Solicitor for the Fourth Respondent:	Litigant in Person (did not participate)

CAC 1782 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR XIN Applicant
AND:	MS QINLANG First Respondent MR B XIN Second Respondent MS WANG (and another named in the Schedule) Third Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	25 JANUARY 2024

CAC 1782 of 2018
Respondents
Fourth Respondent:	MR P, P GROUP PTY LTD AND P HOLDINGS PTY LTD