Yum and WEN & Ors - [2010] FamCA 1086

FAMILY COURT OF AUSTRALIA

YUM & WEN AND ORS

[2010 ] FamCA 1086

FAMILY LAW – PROPERTY – Accusations of fraudulent divorce from second wife to frustrate property division – Whether husband had any interest in the property of his second wife and her son – Non-disclosure of business and income by the husband

Family Law Act 1975 (Cth)

Baldachino & Hanas [2010] FamCA 234
Black & Kellner (1992) FLC 92-287
Jones v Dunkel (1959) 101 CLR 298
K & K [2002] FamCA 1150
Oriolo & Oriolo (1985) FLC 91-653
Weir & Weir (1993) FLC 92 – 338

APPLICANT:

Ms Yum

RESPONDENT:

Mr Wen

3^rd RESPONDENT:

F Lan

4^th RESPONDENT:

Ms Wo

FILE NUMBER:

SYF

3985

2005

DATE DELIVERED:

30 November 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

23 - 27 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jamieson

SOLICITOR FOR THE APPLICANT:

Di Lizio & Associates

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Marando Solicitors

COUNSEL FOR THE 3^RD & 4^TH RESPONDENT:

Mr Cutler

SOLICITOR FOR THE 3^RD & 4^TH RESPONDENT:

Luminous Legal

Orders

The Further Further Amended Application for Final Orders 1(d) filed by the applicant wife on 30 April 2009 be dismissed.
The Applicant wife is declared to have no interest in the property known as C property in the state of New South Wales with Folio Identifier ….
The Respondent husband is declared to have no interest in the property known as C property in the state of New South Wales with Folio Identifier ….
Pursuant to section 79, an order be made in accordance with orders 5 to 11 hereof.
Within 42 days of the date of these orders the Respondent husband do all acts and things and execute all documents necessary to transfer the following properties to the Applicant wife:
5.1.L Street, B, New South Wales and being the whole of the land contained in Folio Identifier …; and
5.2.A Street, B, New South Wales being the whole of the land contained in Folio Identifier ….
The wife indemnify the husband in respect of unpaid Council rates and unpaid strata levy fees in relation to either of the properties referred to in paragraph 5.
Contemporaneously with the transfers referred to in paragraph 5, the wife pay to the husband the sum of $19,129.
The parties do all things and sign all necessary documents to enable the wife to receive the monies and any interest in the controlled monies account.
The wife do all things and sign all necessary documents to allow the husband to receive the monies held in the husband’s solicitor’s account (in the approximate sum of $3,570).
The husband indemnify the wife in relation to any debt the husband may owe his brother or any other person or entity.
As between themselves the parties to be declared to be the legal owners in law and equity of all other properties, monies, and chattels standing in…

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 Yum and WEN & Ors

Details

AGLC: Yum and WEN & Ors [2010] FamCA 1086
Case: [2010] FamCA 1086
Decision Date: 30 November 2010

CaseChat Overview and Summary

The case of *Yum and WEN* concerned an application before Watts J in the Family Court of Australia. The dispute involved the division of property between a husband and wife. The wife sought orders regarding certain properties, including a property identified as "C property," while the husband also had interests in various assets.

The primary legal issues before the court were whether the wife had any interest in "C property," and how the matrimonial assets, including several other properties, monies, and chattels, should be divided between the parties pursuant to section 79 of the *Family Law Act 1975* (Cth). The court was also required to determine the terms of any property settlement, including the transfer of specific properties, payment of monies, and indemnities for various debts and liabilities.

Watts J reasoned that the wife had no interest in "C property" and ordered that the husband transfer two other properties to the wife. The wife was also ordered to pay the husband a sum of $19,129 contemporaneously with these transfers. The court further ordered that the wife receive monies from a controlled monies account and the husband receive monies from his solicitor's account. The husband was to indemnify the wife against any debts owed to his brother or others, and the parties were declared the legal owners of all other assets in their respective possession. The Registrar was appointed to execute documents if a party failed to do so.

Orders

Orders of the court

The Further Further Amended Application for Final Orders 1(d) filed by the applicant wife on 30 April 2009 be dismissed.

The Applicant wife is declared to have no interest in the property known as C property in the state of New South Wales with Folio Identifier ….

The Respondent husband is declared to have no interest in the property known as C property in the state of New South Wales with Folio Identifier ….

Pursuant to section 79, an order be made in accordance with orders 5 to 11 hereof.

Within 42 days of the date of these orders the Respondent husband do all acts and things and execute all documents necessary to transfer the following properties to the Applicant wife:

5.1. L Street, B, New South Wales and being the whole of the land contained in Folio Identifier …; and

5.2. A Street, B, New South Wales being the whole of the land contained in Folio Identifier ….

The wife indemnify the husband in respect of unpaid Council rates and unpaid strata levy fees in relation to either of the properties referred to in paragraph 5.

Contemporaneously with the transfers referred to in paragraph 5, the wife pay to the husband the sum of $19,129.

The parties do all things and sign all necessary documents to enable the wife to receive the monies and any interest in the controlled monies account.

The wife do all things and sign all necessary documents to allow the husband to receive the monies held in the husband’s solicitor’s account (in the approximate sum of $3,570).

10.

The husband indemnify the wife in relation to any debt the husband may owe his brother or any other person or entity.

11.

As between themselves the parties to be declared to be the legal owners in law and equity of all other properties, monies, and chattels standing in their respective possession or name at the time of the hearing, as set out in the table at the end of the Reasons for Judgment.

12.

If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

13.

The husband and wife have liberty on 14 days notice to restore the matter before me in respect of any Application for the implementation of these Orders.

14.

Any party may make any Application for Costs or pursue any Application for Costs by filing an application and relisting the matter within the time specified in the Family Law Rules.

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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