Zhu and Han & Anor - [2016] FamCA 1061

FAMILY COURT OF AUSTRALIA

ZHU & HAN AND ANOR

[2016] FamCA 1061

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Where the issue for determination was the division of trust funds comprising the net proceeds of sale of a parcel of real property – Where the parties made many financial and non-financial contributions that they contended should reflect in the division of those trust funds between them – Ordered that the trust funds be equally divided

FAMILY LAW – PROPERTY SETTLEMENT – Intervener – Where the husband’s father was an intervener – Where the intervener only ultimately sought relief against a third party in relation to one specific parcel of real property – Where the spouses’ claims in relation to that property were abandoned – No accrued jurisdiction to entertain the intervener’s claim – The intervener’s claim was discontinued and he was discharged as party to proceedings

Family Law Act 1975 (Cth) ss, 75, 79

ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Calverley v Green (1984) 155 CLR 242
Davey v Lee (1990) 13 Fam LR 688
Garrett v Garrett (1984) FLC 91-539
Quinn v Quinn (1979) FLC 90-677
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Zhu

RESPONDENT:

Ms Han

INTERVENOR:

Mr A Zhu

FILE NUMBER:

SYC

1957

2014

DATE DELIVERED:

9 December 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

28, 29 November & 1 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ladopoulos

SOLICITOR FOR THE APPLICANT:

Juris Cor Legal

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC & Ms Barnett

SOLICITOR FOR THE RESPONDENT:

Sun Lawyers

COUNSEL FOR THE INTERVENER:

Mr Carney

SOLICITOR FOR THE INTERVENER:

Wang Fang & Co Legal Pty Ltd

Orders

The parties shall forthwith do all such acts and things and sign all such documents as may be necessary to cause the balance of funds held in trust by Sun Lawyers to be disbursed to the applicant and respondent in equal shares.
The wife is declared the sole legal and beneficial owner (as between the parties) of the following chattels, which the applicant shall forthwith deliver up to the respondent for her collection:
(a)The following items of furniture, which are B brand:
(i)One bed;
(ii)Two bedside tables;
(iii)One dressing table;
(iv)One dress stool;
(v)One coffee table;
(vi)One two-seat sofa;
(vii)One single-seat sofa;
(viii)One three-seat sofa;
(ix)One sofa end table;
(x)One TV cabinet;
(xi)One TV cabinet (low);
(xii)One Hexagon Curio Cabinet;
(xiii)One dining table;
(xiv)Six dining chairs;
(xv)One bookcase;
(xvi)One desk;
(xvii)One desk chair;
(xviii)One arm chair; and
(xix)One mattress.
(b)The following other home contents and goods:
(i)One receiver;
(ii)One camera;
(iii)Two sets of tableware;
(iv)One Crystal Bottle set; and
(v)One set of crystal wine cup and bowl.
Unless otherwise provided:
(a)Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose…

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 Zhu and Han & Anor

Details

AGLC: Zhu and Han & Anor [2016] FamCA 1061
Case: [2016] FamCA 1061
Decision Date: 9 December 2016

CaseChat Overview and Summary

In the Family Court of Australia, Austin J presided over a property settlement dispute between the applicant and respondent spouses. The primary issue concerned the division of trust funds representing the net proceeds from the sale of a parcel of real property. Both parties presented arguments regarding their respective financial and non-financial contributions, contending these should influence the distribution of these funds. An intervener, the husband's father, initially sought relief concerning a specific parcel of real property, but the spouses' claims in relation to that property were subsequently abandoned.

The court was required to determine the appropriate division of the trust funds between the spouses, considering their various contributions. Additionally, the court had to address the intervener's claim, specifically whether it had accrued jurisdiction to entertain it given the abandonment of the spouses' claims to the property in question.

Austin J ordered that the trust funds held by Sun Lawyers be divided equally between the applicant and respondent. The court also declared the wife the sole legal and beneficial owner of specific listed chattels, including furniture and home contents, which the applicant was ordered to deliver to her. Furthermore, each party was declared the sole legal and beneficial owner of all other assets in their respective possession, with real estate deemed in the possession of the registered proprietor, bank accounts with the account holder, and superannuation with the superannuant. Each party was also made solely liable for debts attaching to their respective possessions or in their sole names. The intervener's claim was discontinued, and he was discharged as a party to the proceedings, with the court finding no accrued jurisdiction to entertain his claim. Costs between the applicant and respondent were reserved for 28 days, and all other outstanding applications were dismissed.

Orders

Orders of the court

The parties shall forthwith do all such acts and things and sign all such documents as may be necessary to cause the balance of funds held in trust by Sun Lawyers to be disbursed to the applicant and respondent in equal shares.

The wife is declared the sole legal and beneficial owner (as between the parties) of the following chattels, which the applicant shall forthwith deliver up to the respondent for her collection:

(a) The following items of furniture, which are B brand:

(i) One bed;

(ii) Two bedside tables;

(iii) One dressing table;

(iv) One dress stool;

(v) One coffee table;

(vi) One two-seat sofa;

(vii) One single-seat sofa;

(viii) One three-seat sofa;

(ix) One sofa end table;

(x) One TV cabinet;

(xi) One TV cabinet (low);

(xii) One Hexagon Curio Cabinet;

(xiii) One dining table;

(xiv) Six dining chairs;

(xv) One bookcase;

(xvi) One desk;

(xvii) One desk chair;

(xviii) One arm chair; and

(xix) One mattress.

(b) The following other home contents and goods:

(i) One receiver;

(ii) One camera;

(iii) Two sets of tableware;

(iv) One Crystal Bottle set; and

(v) One set of crystal wine cup and bowl.

Unless otherwise provided:

(a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose real estate is deemed to be in the possession of the registered proprietor, bank accounts are deemed to be in the possession of the account holder, and superannuation entitlements are deemed in the possession of the superannuant; and

(b) Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession and any debts in their respective sole names.

In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia at Sydney is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act.

Costs as between the applicant and respondent are reserved for 28 days.

Any and all other outstanding applications are dismissed.

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

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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