Yang and Gian and Ors - [2014] FamCA 934

FAMILY COURT OF AUSTRALIA

YANG & GIAN AND ORS

[2014] FamCA 934

FAMILY LAW – PROPERTY – Where the wife seeks orders regarding the division of property – Where the wife accused the husband of transferring his shares to a third party ––Where the wife accused the husband of carrying on business under a false name – Where the husband claims to owe family members significant sum of money – Where there is insufficient evidence to support the existence of the loans – Where the husband was found not to have made a full and frank disclosure of his finances – Black v Kellner (l992) FLC 92-287– Where the orders sought by the wife are considered to be just and equitable.

FAMILY LAW – CHILDREN – Where the mother seeks an order that the children live with the mother but spend regular overnight time with the father – Where the father opposes this order ––Where the mother alternatively seeks sole parental responsibility of the children – Where it would not be in the children’s best interests not to spend time with their father – Where the mother’s parenting application is dismissed.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 75(2), 79(2), 79(4), 106B

Black & Kellner (1992)FLC 92-287
Weir and Weir (1993) FLC 92-338

Kannis & Kannis (2002) 172 FLR 464

APPLICANT:

Ms Yang

1ST RESPONDENT:

Mr Gian

2ND RESPONDENT:

Mr X

3RD RESPONDENT:

Z Pty Ltd

FILE NUMBER:

SYC

4390

2012

DATE DELIVERED:

29 October 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

22-25 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Alexander

SOLICITOR FOR THE APPLICANT:

Yau & Wang Lawyers

SOLICITOR FOR THE 1ST RESPONDENT:

The Respondent Husband in Person with an Interpreter

SOLICITOR FOR THE 2ND AND 3RD RESPONDENT:

GJ Fong & Co

Orders

That the whole of the net proceeds of the sale of the property known as B Street, Suburb C, being Folio Identifier …, being the sum of $224,244.59 as at 8 August 2014 and any interest thereon, such sum currently held in a controlled monies account of Kemp Strang, be released to Ms Yang (“the wife”) forthwith.
That the parties do all acts and things necessary to transfer to the wife the sum of approximately $10,000.00 presently held by the Third Respondent and representing the proceeds of the rent of A Street, Suburb C, collected by it.
That the Second Respondent transfer all shares in the Third Respondent to Mr Gian (“the husband”).
That the commercial property, being the property contained in Folio Identifier … and situated at and known as Suite #, A Street, Suburb C (“commercial property”), be sold.
That Mr I be appointed as the Trustee for sale of the commercial property.
That the Trustee shall have all powers and authority to conduct the sale of the commercial property and appoint an agent to sell the commercial property.
That the commercial property be sold:
(a)In the first instance, by way of private treaty at…

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 Yang and Gian and Ors

Details

AGLC: Yang and Gian and Ors [2014] FamCA 934
Case: [2014] FamCA 934
Decision Date: 29 October 2014

CaseChat Overview and Summary

This matter concerned an application before Aldridge J, involving Ms Yang (the wife) and Mr Gian (the husband), along with other respondents. The dispute revolved around the division of property and the resolution of financial matters between the parties. The court was required to make orders concerning the distribution of proceeds from the sale of a property at B Street, Suburb C, the transfer of shares in a third respondent company, and the sale of a commercial property located at A Street, Suburb C. Additionally, the court addressed the allocation of rental income from the A Street property and the distribution of the net proceeds from the sale of the commercial property.

The court was tasked with determining the appropriate distribution of various assets and liabilities between the wife and the husband. This included deciding how the net proceeds from the sale of the B Street property should be allocated, the fate of approximately $10,000 held by a third respondent representing rental income from the A Street property, and the transfer of shares in the third respondent company to the husband. Furthermore, the court needed to establish a mechanism for the sale of the commercial property, including appointing a trustee for sale and specifying the terms and conditions of the sale, as well as outlining the order of priority for the distribution of the sale proceeds. The court also had to address the wife's application for parenting orders and the overall dismissal of all outstanding applications.

In its reasoning, the court made specific orders for the immediate release of the net proceeds from the B Street property to the wife and the transfer of rental income from the A Street property to her. The husband was ordered to receive all shares in the third respondent company. The commercial property was to be sold, with Mr I appointed as Trustee for sale, empowered to conduct the sale by private treaty or auction, with a minimum price of $300,000. The proceeds of this sale were to be applied first to outstanding mortgages, rates, agent commissions, trustee expenses, legal costs, and any capital gains or land tax liabilities. The residue was to be divided with 75 per cent to the wife and 25 per cent held on trust for the husband for 28 days. The court further ordered that each party was solely entitled to other property and chattels in their possession and solely responsible for their respective debts, with mutual indemnities. The wife's application for parenting orders was dismissed, and all other applications and cross-applications were dismissed, with all material and exhibits to be returned.

Orders

Orders of the court

That the whole of the net proceeds of the sale of the property known as B Street, Suburb C, being Folio Identifier …, being the sum of $224,244.59 as at 8 August 2014 and any interest thereon, such sum currently held in a controlled monies account of Kemp Strang, be released to Ms Yang (“the wife”) forthwith.

That the parties do all acts and things necessary to transfer to the wife the sum of approximately $10,000.00 presently held by the Third Respondent and representing the proceeds of the rent of A Street, Suburb C, collected by it.

That the Second Respondent transfer all shares in the Third Respondent to Mr Gian (“the husband”).

That the commercial property, being the property contained in Folio Identifier … and situated at and known as Suite #, A Street, Suburb C (“commercial property”), be sold.

That Mr I be appointed as the Trustee for sale of the commercial property.

That the Trustee shall have all powers and authority to conduct the sale of the commercial property and appoint an agent to sell the commercial property.

That the commercial property be sold:

(a) In the first instance, by way of private treaty at any price agreed in writing between the wife and the husband or failing such agreement within fourteen (14) days of the date of these Orders at no less than the price of $300,000; or

(b) In the event that contracts have not been exchanged for a sale by private treaty within six (6) weeks of the date of these Orders, order that the sale be by way of auction, with a reserve price of $300,000 and such auction to occur within ten (10) weeks of the date of these Orders; or

(c) In the event that the property is passed in at auction, the commercial property be sold by such manner and such price as determined by the Trustee for sale.

That the Trustee deals with the proceeds of sale of the commercial property as follows:

(a) Firstly, in payment of any mortgage held over the property, if any;

(b) Secondly, in payment of any usual adjustments of municipal and water rates;

(d) Fourthly, in payment of any reasonable expenses incurred by the Trustee in respect of the sale;

(e) Fifthly, in payment of any legal expenses associated with transferring the property to the purchaser; and

(f) Sixthly, in payment of any such taxation liabilities in relation to capital gains tax and land tax that may fall due; and

(g) Seventhly, that the residue to be paid in the following proportions:

(i) 75 per cent to the wife; and

(ii) 25 per cent to be held by the Trustee on trust for the husband for a period of twenty-eight (28) days, pending further order.

That unless otherwise specified in these Orders:

(a) The wife and husband be hereby solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such of them as at the date of the these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record as the holder of the account, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation polices are deemed to be in the possession of the beneficiary thereof, superannuation entitlements and long service leave and other associated employment benefits are deemed to be in the possession of the person who is named as the worker whose wage or working future provides the conditions for payment out of such entitlements; and

(b) The wife and husband shall each be solely responsible for the payment of any debts or loans in their name as at the date of these Orders and shall indemnify and keep the other indemnified in relation thereto.

Parenting

10.

That the wife’s application for parenting orders be dismissed.

11.

That all applications and cross applications be and are hereby dismissed.

12.

That all issues be removed from the Active Pending Cases List.

13.

That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

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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