Xinya & Ping (No 2) - [2024] FedCFamC2F 606

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Xinya & Ping (No 2) [2024] FedCFamC2F 606

File number(s): MLC 3428 of 2020

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 16 May 2024

Catchwords: FAMILY LAW – PROPERTY – section 79A application – alleged miscarriage of justice arises under any other circumstance – impugned order made in terms pressed by the impugning party – parties bound by the manner they conduct their cases – payment not made provision – not necessarily a “default” within section 79A(1)(c) – necessary implied provision in delivery up of jewellery order can only apply to jewellery in parties power or possession – without section 79A is there jurisdiction to vary a delivery up order to provide a compensatory payment? – no miscarriage of justice found – no “default” pursuant to section 79A(1)(c) found – enforcement application partially successful – section 79A application dismissed

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 79A(1)(a)(b)(c)

Cases cited:
Attaway & Balloch (No. 2) [2019] FamCAFC 243

Barker v Barker (2007) 36 Fam LR 650

Kowaliw and Kowaliw (1981) FLC 91-092

Lane & Lane (2016) FLC 93-699

Langford and Coleman (1993) FLC 92-346

Division: Division 2 Family Law

Number of paragraphs: 94

Date of last submission/s: 10 May 2024

Date of hearing: 9 & 10 May 2024

Place: Melbourne

Counsel for the Applicant: Ms Swart

Solicitor for the Applicant: Domantay Legal Pty Ltd

Counsel for the Respondent: Mr Gates

Solicitor for the Respondent: M and K Lawyers Group Pty Ltd
ORDERS

MLC 3428 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS XINYA

Applicant

AND:
MR PING

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

16 MAY 2024

THE COURT ORDERS THAT:
Amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 17 May 2024.
1.The application of Ms Xinya, to set aside the orders of 25 July 2022, be and is dismissed.
2.On the application of Mr Ping, to enforce the orders of 25 July 2022;
(a)Ms Xinya do all acts and things necessary and sign all such documents as may be required to remove the caveat registered over the property known as D Street, Suburb E in the State of Victoria, at her expense; and
(b)The parties do all acts and things to cause and ensure the proceeds of sale of the property known as B Street, Suburb C, held in trust for the parties, be distributed as follows:
(i)The sum of $19,379.36, together with any interest accrued or earned on that sum or part, pro rata to the whole of the proceeds of sale so held, to Ms Xinya or as she directs; and
(ii)The balance to Mr Ping, or as he directs.

3.All extant applications are otherwise dismissed.

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Xinya & Ping (No 2)

Details

AGLC: Xinya & Ping (No 2) [2024] FedCFamC2F 606
Case: [2024] FedCFamC2F 606
Decision Date: 16 May 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was asked to consider an application by Ms Xinya to set aside orders made by the Court in July 2022, and an application by Mr Ping to enforce those orders. The primary dispute involved the distribution of proceeds from the sale of two properties and the removal of a caveat over a third property. The orders in question directed that the proceeds of sale from one property be held in trust and distributed between the parties, and required Ms Xinya to remove a caveat over a different property.

The central legal issue before the Court was whether there had been a miscarriage of justice under section 79A of the Family Law Act 1975 (Cth) that warranted setting aside the orders. This section allows for the setting aside of orders if there has been a miscarriage of justice or a default by a party. The Court also needed to determine if there was a default by Ms Xinya that would trigger the applicability of section 79A(1)(c). Furthermore, the Court considered whether, in the absence of section 79A, it had the jurisdiction to vary the delivery up order to provide a compensatory payment to Ms Xinya.

The Court found that there had been no miscarriage of justice that would warrant setting aside the orders, and no default by Ms Xinya that would trigger section 79A(1)(c). The Court emphasised that the nature of the alleged default, being a failure to make a payment, was not necessarily a default within the meaning of section 79A(1)(c). Additionally, the Court held that the implied provision in the delivery up of jewellery order could only apply to jewellery in the parties' power or possession, and therefore did not extend to the proceeds of sale of the property in question. The Court concluded that without section 79A, it did not have jurisdiction to vary a delivery up order to provide a compensatory payment. As a result, the application to set aside the orders was dismissed, and the enforcement application was partially successful, with the Court ordering Ms Xinya to remove the caveat over the property and directing the distribution of the proceeds of sale from the other property as per the original orders.

Orders

Orders of the court

MLC 3428 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS XINYA

Applicant

AND:

MR PING

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

16 MAY 2024

THE COURT ORDERS THAT:

Amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 17 May 2024.

1. The application of Ms Xinya, to set aside the orders of 25 July 2022, be and is dismissed.

2. On the application of Mr Ping, to enforce the orders of 25 July 2022;

(a) Ms Xinya do all acts and things necessary and sign all such documents as may be required to remove the caveat registered over the property known as D Street, Suburb E in the State of Victoria, at her expense; and

(b) The parties do all acts and things to cause and ensure the proceeds of sale of the property known as B Street, Suburb C, held in trust for the parties, be distributed as follows:

(i) The sum of $19,379.36, together with any interest accrued or earned on that sum or part, pro rata to the whole of the proceeds of sale so held, to Ms Xinya or as she directs; and

(ii) The balance to Mr Ping, or as he directs.

3. All extant applications are otherwise dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 3428 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	16 May 2024
Catchwords:	FAMILY LAW – PROPERTY – section 79A application – alleged miscarriage of justice arises under any other circumstance – impugned order made in terms pressed by the impugning party – parties bound by the manner they conduct their cases – payment not made provision – not necessarily a “default” within section 79A(1)(c) – necessary implied provision in delivery up of jewellery order can only apply to jewellery in parties power or possession – without section 79A is there jurisdiction to vary a delivery up order to provide a compensatory payment? – no miscarriage of justice found – no “default” pursuant to section 79A(1)(c) found – enforcement application partially successful – section 79A application dismissed
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) s 79A(1)(a)(b)(c)
Cases cited:	Attaway & Balloch (No. 2) [2019] FamCAFC 243 Barker v Barker (2007) 36 Fam LR 650 Kowaliw and Kowaliw (1981) FLC 91-092 Lane & Lane (2016) FLC 93-699 Langford and Coleman (1993) FLC 92-346
Division:	Division 2 Family Law
Number of paragraphs:	94
Date of last submission/s:	10 May 2024
Date of hearing:	9 & 10 May 2024
Place:	Melbourne
Counsel for the Applicant:	Ms Swart
Solicitor for the Applicant:	Domantay Legal Pty Ltd
Counsel for the Respondent:	Mr Gates
Solicitor for the Respondent:	M and K Lawyers Group Pty Ltd

MLC 3428 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS XINYA Applicant
AND:	MR PING Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	16 MAY 2024