Nguyen v Corbett (No 4) [2019] NSWSC 712

Supreme Court New South Wales

Medium Neutral Citation: Nguyen v Corbett (No 4) [2019] NSWSC 712 Hearing dates: 7 December 2018; further written submissions ending 21 December 2018 Date of orders: 19 June 2019 Decision date: 19 June 2019 Jurisdiction: Equity Before: Parker J Decision: The cross-claimant's Notice of Motion filed 13 December 2018 be dismissed. The cross-claim be dismissed. The cross-claimant pay the second cross-defendant's costs of proceedings on the cross-claim, including the costs of the Notice of Motion. Catchwords: FAMILY LAW — Property — Application for property settlement orders under the Family Law Act 1975 (Cth) ("FLA") to replace property settlement orders earlier made by consent and subsequently set aside under FLA, s 79A – whether wife's contributions during the marriage gave rise to proprietary interest by common interest constructive trust or "unjust enrichment" – whether otherwise "just and equitable" under FLA s 79 to make further provision for the wife out of the property.

FAMILY LAW — Property — Marriage — Adjustment of property interests – operation of FLA, ss 79 and 90AE - whether prior order under s 37A Conveyancing Act 1919 (NSW) that wife make property available to satisfy husband's debts presents a bar to the cross-claim by way of Anshun estoppel – whether prior order could be set aside under s 79 FLA – whether prior order created security interest which cannot be displaced aside from exercise of the Court's power under s 90AE - where prior order in effect equivalent in operation to security over the property or an order to charge the property with the liability – whether prior order could be set aside under r 36.16(3) Uniform Civil Procedure Rules 2005 (NSW) – whether prior order could be set aside under UCPR r 36.15 - where necessity to set order aside raised by the Court and no claim under FLA s 90AE pursued – where no application made to vary "make available" order under UCPR, r 36.16(3A).