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Kay’s Case Note: Kong & Lendi (2020) FamCA 1091

By July 12, 2021 No Comments
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The case of Kong & Lendi [2020] FamCA 1091 is a case in which both parties’ applications in a contested interim application for part property settlement failed because the court determined that the evidence to support their applications was defective.

Cases like this where the court says that they’re not satisfied are often of great assistance to practitioners.

The husband’s application was returnable on 10 November. The parties were ordered to file and serve further material and submissions and after 1 December, the judge informed the parties that the application would be determined on the papers.

The synopsis at point (a) is:

“Neither party has persuaded me that he or she is entitled to the payment of the sum of $213,477.61 being the funds remaining in the B Lawyers Trust Account.”

The case was described as a contested interlocutory dispute.

Each party had sought interim orders dealing with the application of the net proceeds of sale of certain land.

The parties married and divorced in China. They have one son.

The E District Court in China had determined it did not have authority to make orders in relation to any assets in Australia.

The parties entered into a divorce agreement that the E District Court sealed.

The judge otherwise summarised various factual elements to the dispute.

Each party had sought orders for the payment of the whole of a sum in trust to him and to her.

The court accepted that the evidence was in a state of fluidity. The court made certain observations.

The court said:

“The wife made little attempt to bring herself within statement of principle in Strahan v Strahan beyond pointing out three times in her written submissions that she was not required to demonstrate the existence of compelling circumstances before an interim property order could be made.”

The wife’s submissions was there is no prejudice to the husband in the orders sought.

The court said:

“To contend that no prejudice will befall a respondent inverts the proofs. She was required to make out her case for the relief she sought. If she failed to discharge that onus, irrespective of prejudice to the respondent, she failed in her application.”

The wife’s contention had been that the husband had significant financial resources.

The court said:

“…if true [that] would not, in and of itself, make out the applicant’s case for an interim property order.  Nor would proof, if true, that the wife is in a “dire financial position”, whatever that meant.”

The court said:

“The learning on point requires the court hearing the interim property application to assess the reversibility of the order.”

The judge found later in the judgment:

“Serious reversibility issues arise if those funds were disbursed to the wife.”

It is always useful to be aided by an analysis of the type undertaken in this case.