FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Xia & Qiu (No 6) [2024] FedCFamC1F 8

File number(s): CAC 1782 of 2018
Judgment of: GILL J
Date of judgment: 25 January 2024
Catchwords: FAMILY LAW – PROPERTY – where the husband and
wife own a number of properties and joint business
ventures – where the parties’ joint businesses have nil value
– where the husband’s parents, as second and third
respondents, claim a property is held on resulting trust as in
Calvery v Green or constructive trust as in Butler v Craine
for them by the husband and wife - claims dismissed –
where second and third respondents seek declarations and
repayment of a number of loans to the husband and wife –
declaration that $229,916 was loaned jointly to husband
and wife and all other claims as to loans dismissed – held
60-40 split of property pool in the wife’s favour – husband
to indemnify the wife for the loan repayment to the second
and third respondents.
FAMILY LAW – PRACTICE AND PROCEDURE –
where the husband’s evidence was found to be generally
unreliable – where it was found that the husband and
second and third respondents fabricated documents for the
purpose of the proceedings.

Legislation: Corporations Act 2001 (Cth) – s 601AD
Evidence Act 1995 (Cth) – s 66A
Family Law Act 1975 (Cth) – ss 75, 79 & 102NA

Cases cited: Bevan & Bevan [1993] FamCA 95

Bosanac v Commissioner of Taxation [2022] HCA 34
Butler v Craine [1986] VR 274
Calverley v Green (1984) 155 CLR 252
Davies v The National Trustees Executors and Agency Co
of Australasia Ltd [1912] VLR 397
Dickons [2012] FamCAFC 154
Grier & Malphas (2016) 55 Fam LR 107
In the Marriage of Biltoft (1995) 19 Fam LR 82
In the marriage of Prince (1984) 9 Fam LR 481

Xia & Qiu (No 6) [2024] FedCFamC1F 8

Stanford v Stanford [2012] HCA 52
Strand & Strand (No 2) [2018] FamCAFC 247
Trevi & Trevi [2018] FamCAFC 173
Trustees of the Property of Cummins v Cummins (2006)
227 CLR 278
Welch & Abney [2016] FamCAFC 271

Division: Division 1 First Instance
Number of paragraphs: 315
Date of hearing: 4-12 December 2023
Place: Canberra
Solicitor for the Applicant: Litigant in Person
Counsel for the First
Respondent:

Dr Smith

Solicitor for the First
Respondent:

Dobinson Davey Clifford Simpson

Counsel for the Second and
Third Respondents:

Mr Mellas

Solicitor for the Second and
Third Respondents:

Lander & Rogers

Solicitor for the Fourth
Respondent:

Litigant in Person (did not participate)

Xia & Qiu (No 6) [2024] FedCFamC1F 8 i

ORDERS

CAC 1782 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: LEI XIA
Applicant
AND: FENG QIU
First Respondent
BEN XIA
Second Respondent
LIQIANG WU (and another named in the Schedule)
Third Respondent

ORDER MADE BY: GILL J
DATE OF ORDER: 25 JANUARY 2024

THE COURT ORDERS THAT:
1. All previous property orders are discharged.
2. That the 2nd and 3rd respondents’ applications and claims as to an equitable interest in
the property located at 11 Stutchbury St Page in the Australian Capital Territory being
the whole of the land more particularly described in Certificate of Title Volume 318
Folio 13 Edition 9 (the Page property) are refused and the applications are dismissed.
3. Within 7 days from the date of these Orders, the second and third Respondents do all
things necessary to withdraw the caveat (dealing 3000278) lodged over the Page
property.
4. It is declared that the sum of $229,916 provided by the 2nd and 3rd respondents are funds
loaned jointly to the husband and wife.
5. The declarations as to loans as sought by the 2nd and 3rd respondents in respect of the
husband and wife are otherwise refused and the application is dismissed.
6. The husband shall repay to the 2nd and 3rd respondents the sum of $229,916.
7. The order sought by the 2nd and 3rd respondents in respect of the repayment of loaned
monies by the husband and wife are otherwise refused and the application is dismissed.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 ii
8. The orders sought by the 2nd and 3rd respondents for payments in respect of loans and/or
investments and or profits in respect of DN & EX Pty Ltd, Akiross Pty Ltd are refused
and the application is dismissed.
9. The 2nd and 3rd respondents’ application for all the furniture, chattel and personal
possessions in the Page property be declared to be the property of the Second and Third
Respondents is dismissed.
10. The 2nd and 3rd respondents’ applications for orders and declarations in respect of WNA
Group Pty Ltd and WNA Holdings Pty Ltd are refused and the applications are
dismissed.
Payment
11. Within 60 days of the making of these orders, the husband pay to the wife the sum of
$158,000 (being 60 per cent of the net value in the parties’ property pool taking into
account the Orders provided below) (‘the Date’ and ‘the Payment’, respectively).
12. Contemporaneously with the Payment:
(a) The Wife do all acts and things necessary to transfer to the husband, at the
husband’s expense, all of her interest in the property situate at and known as 11
Stutchbury Street, Page in the Australian Capital Territory, being the whole of
the land more particularly described in Certificate of Title Volume 318 Folio 13
Edition 9 (“the Page Property”).
(b) The husband do all acts and things necessary to cause the joint loan account to
the ANZ Bank loan account number x2035 in the names of Lei Xia and Feng
Qiu (“the Page loan”) to be refinanced into his sole name with a financial
institution of his choosing and to payout the Page loan in full;
(c) The parties do all acts and things necessary to enable ANZ Bank to discharge
mortgage dealing 2026556 securing the Page loan over the Page property; and
(d) The husband indemnify the wife against all payments and liability pursuant to
any mortgage or other encumbrance secured over the Page Property and all
apportionable rates, taxes and outgoings of or with respect to the Page Property
of whatsoever nature and kind.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 iii
On Default of the Payment
13. In the event that the whole of the Payment has not been made by the Date, or the
husband has not refinanced the mortgage secured over the Page Property into his sole
name then:
(a) The wife be appointed the sole trustee for the sale of the Page property and is
granted sole right to occupy the Page property to the exclusion of the husband;
and
(b) In her capacity as the sole trustee for the sale of the Page property, the wife do
all acts and things and sign all documents and do all things as may be required
to forthwith place the Page Property on the market for sale altogether out of
Court (‘the Sale’) and upon completion of the Sale, the proceeds of the Sale be
applied as follows:
(i) First, to pay all costs, commissions and expenses of the Sale;
(ii) Second, to discharge any encumbrance affecting the Real Property;
(iii) Third, so much of the balance of the Payment then outstanding together
with interest at the Family Law Rules penalty interest rate to the wife;
and
(iv) The balance to the husband.

Pending the Payment
14. Pending the Payment or the Sale and subject to order 13 above:
(a) The husband has the sole right to occupy the Page Property and during such
right of occupation the husband pay all instalments pursuant to any mortgage
and all rates, taxes and like apportionable outgoings over the Page Property as
and when they fall due; and
(b) Save to give effect to these orders, neither party encumber the Page Property
without the consent in writing of the other party.

Crace Property
15. Within 28 days from the date of these Orders:
(a) The husband do all acts and things necessary to transfer to the wife, at the wife’s
expense, all of his interest in the property situate at and known as 50 Samaria
Street, Crace in the Australian Capital Territory, being the whole of the land

Xia & Qiu (No 6) [2024] FedCFamC1F 8 iv
more particularly described in Certificate of Title Volume 2096 Folio 100
Edition 5 (“the Crace property”).
16. Pending the transfer of the Crace property:
(a) The wife have the sole right to occupy the Crace property; and
(b) The wife indemnify the husband against all outgoings with respect to the Crace
property, including but not limited to repayments for rates, land tax and the like;
and

17. Neither party shall mortgage or otherwise offer the Crace property for security other
than for the purposes of compliance with these Orders.
QF and XL Family Trust
18. Within 14 days from the date of these Orders, the wife shall, at the husband’s expense,
do all things necessary to:
(a) Relinquish all beneficial entitlements and irrevocably disclaim her interest as a
beneficiary of the QF and XL Family Trust (“the Trust”);
(b) Transfer to the husband all of her right, title and interest in the following:
(i) Any loan accounts in the Trust;
(ii) Allocated but undistributed profits in the Trust;
(iii) Undistributed profits in the Trust; and
(iv) Any other liability owed by the Trust to the wife.

19. The husband indemnify, and keep the wife indemnified with respect to any liability of
the Trust, including any taxation liability (past, present or future).
DN & EX Pty Ltd
20. Within 14 days from the date of these Orders, the husband and wife shall do all acts
and things to wind up DN & EX Pty Ltd (ACN 600 393 833) at the parties’ joint
expense.
WNA Group Pty Ltd
21. The husband and wife as beneficial owners of the shares in WNA Group Pty Ltd do all
acts and things necessary to sell the business known as The Creamery & Co (owned
and operated by the company WNA Group Pty Ltd ABN 82 612 338 253), including

instructing and securing the cooperation of Mr Wende Qiu (as the director and non-
beneficial shareholder of WNA Holdings Pty Ltd).

Xia & Qiu (No 6) [2024] FedCFamC1F 8 v
22. That for the purpose of the sale referred to in Order 24 the wife be appointed as the sole
Trustee of the sale.
23. That upon the settlement of the sale of The Creamery & Co, the wife as Trustee of the
sale, cause the net proceeds of sale to be applied as follows:
(a) 60 per cent to the wife; and
(b) 40 per cent to the husband.
Other
24. The wife retain the following assets for her sole use and benefit, free from claim by the
husband:
(a) The Crace property;
(b) Her interest in AWAQ Pty Ltd (trading as the Coffee Club Majura Park);
(c) Monies in all bank accounts in her sole name;
(d) Furniture and household contents in her name, possession or control; and
(e) Her superannuation entitlements with Intrust Superannuation.
25. The husband retain the following assets for his sole use and benefit, free from claim by
the wife:
(a) His Toyota Kluger;
(b) His interest in WNA Construction Pty Ltd (if any), PK & EX Ventures Pty Ltd,
Denman Terraces Pty Ltd, Denman Units Pty Ltd, Solid Constructions Pty Ltd;
(c) His interest in QF and XL Family Trust;
(d) Monies in all bank accounts in his sole name;
(e) Furniture and household contents in his name, possession or control; and
(f) His superannuation entitlements with Essential Super.
26. The wife be solely responsible for and indemnify the husband in relation to any current
or future liabilities associated with:
(a) The Crace property;
(b) AWAQ Pty Ltd;
(c) Any loans owed to the wife’s parents; and
(d) Any credit card liability in her name.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 vi
27. The husband be solely responsible for and indemnify the wife in relation to any current
or future liabilities associated with:
(a) WNA Construction Pty Ltd, PK & EX Ventures Pty Ltd, Denman Terraces Pty
Ltd, Denman Units Pty Ltd, Solid Constructions Pty Ltd;
(b) Any loans owed to the husband’s parents, including the joint loan to the 2nd and
3
rd respondents the subject of the declaration under these orders; and
(c) Any credit card liability in his name.
28. That save as otherwise provided for in these Orders:
(a) Each party shall be solely entitled to the exclusion of the other to all property
(including chose-in-action) in the possession of such party as at the date of these
Orders;
(b) Monies standing to the credit of a party in any bank account is to become the
property of the party in whose name the account is registered;
(c) Each party shall forego any claim or claims the party may have to any
superannuation, long service leave, redundancy, retirement, retrenchment and
like benefits belonging to, or earned by, the other;
(d) Insurance policies remain the sole property of the owner named thereon;
(e) Each party shall be solely liable for, an indemnify the other against any liability
encumbering any item of property to which that party is entitled pursuant to
these Orders; and
(f) Any joint tenancy of the parties in any real or personal property is hereby
expressly severed.

29. If either party refuses, fails or neglects to execute any document necessary to put these
Orders into effect seven (7) days after being requested to do so, and any such refusal,
pursuant to s 106A of the Family Law Act 1975 (Cth), the Registrar of the Federal
Circuit and Family Court at Canberra be and is hereby appointed to execute such
document in the name of such party, and the party in default is ordered to pay all
reasonable costs incurred by the non-defaulting party for the purpose of enforcing these
Orders.
30. Liberty to the wife to apply with respect to implementation of these Orders upon seven
(7) days’ written notice.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 vii
31. Should a party seek an order as to costs in relation to these proceedings then such party
is to file an Application in Proceedings in respect of such and such supporting affidavit
material as will be relied upon within 28 days of the delivery of these orders.
32. The parenting proceedings are listed for directions on a date to be fixed and are listed
for final hearing to commence on 29 April 2024.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor
typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia
(Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited
circumstances, to publish proceedings that identify persons, associated persons, or witnesses
involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been
approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Xia & Qiu (No 6) [2024] FedCFamC1F 8 1

REASONS FOR JUDGMENT

GILL J
BACKGROUND
1 These proceedings concern the adjustment of the property interests of the applicant husband
Lei (Eddie) Xia, born 29 May 1983 and the respondent wife, Feng (Aki) Qiu, born 7 October
1985. The proceedings also involve third party claims of property rights relating to the property
of the marriage, with the husband’s mother, Liqiang Wu and father, Ben Xia as the second and
third respondents and the wife’s father, Wende Qiu, along with the corporate entities WNA
Group Pty Ltd and WNA Holdings Pty Ltd, as the fourth respondent.
2 The husband and wife commenced cohabitation in Canberra in 2005 or 2006. They were
married in Australia on 18 May 2012 and have two children together, William Tian Xia, born
19 August 2012 and Anna Qing Xia, born 30 September 2015. The wife asserts that she told
the husband of her wish to separate in late April 2018 and in early May 2018 the parties
separated under one roof.1 From about August 2018, when the husband was charged with
sexually assaulting the wife, but ultimately acquitted, they have lived apart, with the wife
providing the sole care for their children.
3 The parenting proceedings have been split from the property hearing.
4 Although the factual contentions as presented in the affidavit material filed were chaotic, the
matters of significance in dispute were somewhat narrowed in final submissions.
5 In incomplete summary, the property dispute involves competing claims by the second and
third respondents (who conducted their cases together as one), as to the beneficial ownership
of real property currently held in the husband’s and wife’s names in Page in the ACT,
competing claims as to the husband’s ownership of real property in China, debts owed by the
husband and wife to the second and third respondents, and the control and beneficial ownership
of a corporate entity, WNA Group Pty Ltd. Allied to the corporate entity issue is a contentious
alteration of the shareholding and directorship of WNA Group Pty Ltd.
6 The husband supported the second and third respondents’ cases, accepting all of their claims
against the husband and wife.

1 Affidavit of the mother filed 6 November 2023, [3].

Xia & Qiu (No 6) [2024] FedCFamC1F 8 2
7 The fourth respondent did not participate in the hearing of the matter, and it proceeded on an
undefended basis against him.
8 At the final hearing the husband appeared without representation, despite having representation
throughout most of the proceedings, including for the preparation of his trial material. That
lack of representation had a flow on consequence that, as the husband and wife were barred
from personal cross-examination of each other by virtue of a final family violence order and

the operation of s 102NA of the Family Law Act 1975, the husband was unable to cross-
examine the wife. The effect of this was somewhat ameliorated by the commonality of aspects

of the husband’s case with the cases of the second and third respondents, who were represented
and who were able to test the wife’s evidence by cross-examination.
9 Despite considerable efforts in preparing the case, as evidenced in the affidavit material filed
by the parties, the financial history of the various parties remained highly confused.
10 Some of this confusion flowed from either an unwillingness or incapacity to provide fulsome
documentary material to support the various claims made.
11 This meant that the many of the strands of evidence and assertions as to their real property and
business dealings were incapable of factual resolution, at times going nowhere, and leading to
considerable opacity as to the true financial history. The examination of many of these strands
was necessary in order to try to set the overall evidence in context, to try to resolve what became
the more central matters, and to assess the overall reliability of the witnesses.
12 Despite the confusion, sufficient emerged during the trial, without resolution of each and every
competing claim, to establish the composition of the property of the husband and wife, to
resolve the claims of the third parties, and to form an adequate picture of the parties’
contributions to allow a final resolution.
ORDERS SOUGHT
13 The precise orders ought by the wife and the second and third respondents are annexed to this
judgment. The orders sought are set out in summary form here.
14 The husband, who was unrepresented at trial, identified the orders that he seeks in a limited
manner. He identified that he supports the second and third respondents’ claims, and that from
what is left he seeks a fair distribution. He did not identify what this might be.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 3
15 The wife seeks a seventy-thirty division of the net pool in her favour. This incorporates the
husband receiving a property at Page in the ACT (and the second and third respondents
withdrawing their caveat against this property), his superannuation interests, and various other
items and interests. The wife would receive a property in Crace ACT, along with her interest
in AWAQ Pty Ltd, operating a business, Coffee Club Majura Park, her superannuation and
various other items.
16 The wife seeks the winding up of corporate entities and the sale of the business Creamery &
Co Gungahlin, currently operated by WNA Group Pty Ltd.
17 The wife would indemnify the husband in respect of the property she receives, her personal
debts and in relation to loans from her parents.
18 The wife seeks that the husband would indemnify her in relation to the property he receives,
and in relation to his personal debts and any loans owed to his parents.
19 The second and third respondents seek declarations that the husband and wife hold their
interests in the Page property subject to a resulting and/or constructive trust, that the husband
and wife transfer their title to the second and third respondents and cause the mortgage on that
property to be discharged.
20 They further seek declarations that the chattels at the Page property are theirs, and that the sums
of $319,916 and $375,000 are loans owed by the husband and wife to them, and orders that
such be paid by the husband and wife.
21 The second and third respondents seek the payment of various monies, at which they would
relinquish interests in the corporate entities that trade as the Coffee Club Gungahlin and the
Coffee Club Majura Park, along with declarations as to Liqiang Wu being the sole shareholder
and director of WNA Group Pty Ltd, and the rectification of registers to reflect that. They seek
indemnification in respect of WNA Group Pty Ltd, and orders in respect of WNA Holdings
Pty Ltd as against the fourth respondent.
22 Although the second and third respondents had also pursued other debt claims against the
husband and wife, they abandoned this relief on the basis that it was statute barred.
PRINCIPLES
23 The claims as between the husband and wife draw upon the powers contained in the Family
Law Act 1975 (Cth) that enable the court to adjust the property interests between them.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 4
24 Section 79 confers upon the court the power to alter and settle the property interests between
parties to a marriage. As identified by the High Court in Stanford it is a power conditioned by
the overarching requirement set out at s 79(2) that:
The court shall not make an order under this section unless it is satisfied that, in all the
circumstances, it is just and equitable to make the order.
2

25 This is a requirement that was identified by the High Court to apply to the decision whether to
adjust interests at all, and also to the decision to adjust them in a particular manner.
26 The High Court identified that the starting point for this consideration is:

First, it is necessary to begin consideration of whether it is just and equitable to make
a property settlement order by identifying, according to ordinary common law and
equitable principles, the existing legal and equitable interests of the parties in the
property.3

27 In this case the claims made by the third parties, and supported by the husband, draw upon
equitable principles to assert that the ownership of the Page property by the husband and wife
is conditioned by the beneficial ownership being held by the second and third respondents.
They claim an interest in WNA Group Pty Ltd and make claims as to debt owed by the husband
and wife. These claims bear upon the nature and extent of the legal and equitable interests held
by the husband and wife.
28 Once the interests have been identified it can be considered whether, in the circumstances of
the case it is just and equitable to make any adjustment, a consideration described by the High
Court:
In many cases where an application is made for a property settlement order, the just
and equitable requirement is readily satisfied by observing that, as the result of a choice
made by one or both of the parties, the husband and wife are no longer living in a
marital relationship. It will be just and equitable to make a property settlement order
in such a case because there is not and will not thereafter be the common use of
property by the husband and wife. No less importantly, the express and implicit
assumptions that underpinned the existing property arrangements have been brought
to an end by the voluntary severance of the mutuality of the marriage relationship. That
is, any express or implicit assumption that the parties may have made that the to the
effect that existing arrangements of marital property interests were sufficient or
appropriate during the continuance of their martial relationship is brought to an end
with the ending of the marital relationship.4

2 Stanford v Stanford [2012] HCA 52, [21] (French CJ, Hayne, Kiefel and Bell JJ).
3
Ibid [37].
4
Ibid [42].

Xia & Qiu (No 6) [2024] FedCFamC1F 8 5
29 As was subsequently identified by the Full Court in Bevan & Bevan [1993] FamCA 95, the
necessary considerations set out at s 79(4) (including s 75(2)) are a component in the
determination of whether it is just and equitable to make any adjustment, as well as in
determining the particular adjustment to be made, and that the whole process of the
consideration of adjustment is permeated by the consideration of whether an adjustment is just
and equitable.
30 Following a long line of authority the Full Court in Bevan & Bevan identified a structured
(although not mandatory) process to apply the considerations. That process involves the
identification and valuation of the property of the parties, identification and evaluation of
contributions, identification of the considerations as applicable to the case set out at s 79(4)(d)
to (g) (including those contained in s 75(2)), and further consideration of whether the
adjustment is just and equitable.
31 In this case a live issue between the parties was their disposal of property.
32 Obtaining a just and equitable result may require the consideration of notional property, being
property that is no longer in existence, having been disposed of by a party. Although, as
identified by the Full Court in Grier & Malphas,
5
the use of such notional add-backs is the
exception, there may be good reason to use such an approach. In Trevi & Trevi, Murphy J
identified three recognised bases for adding back, being:
where the parties have expended money on legal fees; where there has been a
premature distribution of matrimonial assets; and ‘waste’, or a wanton, negligent, or
reckless dissipation of assets.6

33 A justification for a notional adding back does not arise merely because a party has disposed
of matrimonial assets. As observed by Murphy J in the authorities that deal with an adding
back, parties do not enter a state of “suspended economic animation” on the ending of their
relationship.7 Adding back, as a discretionary exercise, is exceptional and occurs where justice
and equity require such a reckoning. Alternatively, rather than adding back, justice and equity
may be met by taking into account, pursuant to s 75(2)(o) the disposal as a fact or circumstance
that the justice of the case renders necessary to take into account.
34 The property to be identified and considered extends to superannuation interests of the parties.

5 Grier & Malphas (2016) 55 Fam LR 107.
6 Trevi & Trevi [2018] FamCAFC 173, [27] (Murphy J).
7
Ibid [29].

Xia & Qiu (No 6) [2024] FedCFamC1F 8 6
35 In Welch & Abney [2016] FamCAFC 271 the Full Court emphasised the need to give
consideration to the “nature, form and characteristics of the property and superannuation
interests.”8 To consider whether an adjustment is just and equitable it is necessary to identify
the practical effect of the distribution. An example of where such is necessary is in the
recognition of the practical difference between the receipt of a superannuation interest that may
not be accessible for many years, in contrast to an asset that may be realised immediately.
36 In considering contributions, s 79 provides for a wide range of contributions to be taken into
account, incorporating financial and non-financial contributions, made directly or indirectly,
by or on behalf of a party to the acquisition, conservation or improvement of property, even
where such no longer forms a part of the property of the parties. Further, contributions that are
not made to the property, but to the welfare of the family are also to be taken into account. As
the Full Court identified in Dickons,
9
this requires a holistic assessment of the nature, form and
extent of contributions, and that there is no requirement for a causal link between the
contribution and the property. Contributions are not weighed merely on their financial
consequences.
37 An aspect of the weighing of the contributions is of the circumstances in which they were made.
For example, the Full Court in Benson & Drury [2020] FamCAFC 303 identified that the
holistic examination of contributions that is required can take account of the contributions
being rendered significantly more arduous by the conduct of another party in subjecting the
party to family violence in determining the weight to be given to the contributions as a whole.
38 Typically, the weighing of contributions will be expressed relatively between the parties as
percentages.
39 It then remains necessary to consider the other matters, insofar as they are relevant to the case,
as described at s 79(4)(d) to (g) including those contained in s 75(2). A significant aspect of
these considerations is directed to assessment of the future prospects of the parties and are not
restricted to the consideration of financial matters. Where such considerations arise in a case,
typically, once weighed, they will also sound in the expression of a percentage.
40 Following the consideration of these matters, further consideration must be given to whether
the result is just and equitable.

8 Welch & Abney [2016] FamCAFC 271, [19] (Murphy, Aldridge & Kent JJ).
9 Dickons [2012] FamCAFC 154.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 7
41 In this case the identification of the legal and equitable interests of the parties involves
consideration of the equitable claims made by the second and third respondents upon the Page
property. Those principles will be identified in the discussion in relation to that property.
42 A further important aspect of the case is as to claims made by the second and third respondents
that they have loaned monies to the husband and wife that require repayment. These include
loans purportedly made during the marriage, and since separation, including loans to the
husband used by him to comply with orders that cast responsibility upon him for the meeting
of particular expenses related to the properties of the parties.
43 The Full Court In the Marriage of Biltoft (1995) 19 Fam LR 82 observed that the general
practice for the court is to deduct
from the value of their assets the value of their total liabilities. In the case of
encumbered assets, the value thereof is ascertained by deducting the amount of the
secured liability from the gross value of the asset.10

44 However, the Full Court also adopted what had been said In the marriage of Prince,
11 being
that the assessment (I infer for the purposes of property adjustment) is not necessarily strictly
mathematical, or accountancy based, but that allowances may be made for debts if
appropriate. 12 There may be sufficient uncertainty, for example as to whether it will be
enforced, or the circumstances might otherwise mean that allowance is not made for a particular
debt.
45 Here the claims as to debt were instigated as part of the case of the second and third
respondents, the claims requiring resolution forming part of the common facts that require
resolution to determine the husband’s and wife’s property adjustment claim, and thereby falling
within the jurisdiction of the court to resolve. The onus lay upon the second and third
respondents to establish the character of the payments as loans for which either the husband,
wife or both bear responsibility. Whether it bears such a character was explained by the Full
Court in Strand & Strand (No 2) [2018] FamCAFC 247 as follows:
The characterisation of a particular advance of monies depends on whether the
circumstances known to both parties to the transaction, at the time demonstrate,
objectively, that the payment was made by way of a loan.13

10 In the Marriage of Biltoft (1995) 19 Fam LR 82, 91.
11 (1984) 9 Fam LR 481.
12 In the Marriage of Biltoft (n 10) 91.
13 Strand & Strand (No 2) [2018] FamCAFC 247, [24] (Strickland, Ainslie-Wallace & O’Brien JJ).

Xia & Qiu (No 6) [2024] FedCFamC1F 8 8
46 Various other legal principles were relied upon by the parties, which will be identified as the
issues that they relate to are dealt with.
FACTUAL ISSUES
47 There was a wide divergence between the evidence given by the wife, and that given by the
husband and the second and third respondents.
48 In considering the conflict in the evidence, the issue of the credibility or reliability of the
evidence of the parties loomed large. The focus of the credibility issues was, in large part,
based upon the circumstances relating to the purchase of the Page property and the documents
said to evidence the arrangement. However, issues arose more generally in relation to
credibility. Before moving to the particular matters related to the Page property and supporting
documentation, some general observations are necessary.
The husband’s evidence
49 Simply because a witness is not accepted on some matters, or there are adverse credibility
conclusions in relation to some matters, it is not necessarily the case that the whole of that
witness’s testimony is thrown into doubt. It is open to accept a witness on some matters and
reject in relation to others.
50 However, circumstances as to credibility or reliability can arise that reasonably point to a court
exercising general caution prior to placing reliance upon a witness’s testimony absent adequate
external support.
51 In this case there is strong reason to consider that the husband’s evidence, in general, cannot
be treated as reliable, but rather should be treated with caution.
52 When cross-examined, the husband indicated that he had not fully examined or considered his
affidavit. While it is not uncommon for a witness to indicate that portions of an affidavit were
not properly considered, in this case the expressed reservations were such as to remove
confidence that, at any given point, the affidavit represented the testimony of the husband.
Frequently, when challenged and taken to assertions contained in his affidavit, the husband not
only failed to adhere to what was contained in his affidavit, but went further to assert more
generally that the affidavits were the work of his then lawyers, rather than necessarily
representing his recollection. He indicated that there were mistakes in his affidavit (without
moving to particulars as to their scope), and that he was not the one who wrote the affidavit.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 9
At least on his evidence his execution and swearing of the affidavit could not be construed as
an adoption of the content of the affidavit.
53 By way of example, when taken to quotes of conversations, the husband asserted that these
should be attributed to his lawyers rather than representing his specific memories, he being
merely able to say generally what had passed. In particular, when taken to his description of
interactions with his parents in relation to what he asserts was an unauthorised loan taken out
by he and the wife, and having attributed particular words to the protagonists, he explained that
he could not picture the exchange in his mind.
54 It is not possible, on the terms in which the husband described his affidavit, to determine what
might or might not represent the husband’s testimony.
55 Further, the husband’s fluid approach to his written testimony does not assist him in relation to
his oral testimony. His explanations as to the lack of regard had to his written evidence gives
no confidence in his oral testimony, which was often at odds with his written evidence.
56 In the unusual and particular circumstances of this case, the husband should be considered to
be generally unreliable as a witness.
The evidence of the third respondent
57 The third respondent accepted that he had memory problems, explaining some difficulties with
his evidence on that basis. He also deferred to the recollection of his wife, in circumstances
where there were substantial similarities in the evidence of the second and third respondents.
THE EVIDENCE
58 It is convenient to move through the parties’ contentions in a generally chronological manner,
as this provides necessary context for conclusions reached as to the property.
The assertions as to loans around the time of the commencement of the relationship
59 The husband and wife met while both foreign students studying in Canberra in about 2004.
60 While the claim was ultimately abandoned as statute barred, the second and third respondents
prosecuted a claim in debt against the husband and wife relating to the period prior to the
commencement of, and then following the start of their relationship.
61 Although abandoned, the claim provides useful context for assessing the parties’ evidence and
claims more generally. The initial debt claim was comprised of:

Xia & Qiu (No 6) [2024] FedCFamC1F 8 10
• $208,484 for rent, living expenses and tuition for the husband and wife;
• $100,000 for the wife’s migration; and
• $50,218.42 for the wife’s sportscar.
62 As to the $208,484 the second respondent asserts an agreement struck in 2002 for the husband
to migrate to and study in Australia, and to pay money for his education and support, with such
to be paid back to his parents after he started to work.
63 The second respondent identifies monies remitted to the husband between 20 February 2003
until 22 December 2006 of $208,484. Liqiang Wu and Ben Xia have either directly transferred,
or transferred through other family members, various monies. The monies provided are
supported by relevant bank documents. Exhibit R1 contains bank statements from the account
of the husband showing a number of transfers in from his parents and other individuals,
identified by the husband in his oral evidence to be other family members, between July 2005
and January 2007. Exhibit R2 is a credit card statement, identified by the husband to be the
card of his father, showing transactions to the University of Canberra and a number of
businesses in Canberra from August 2003 until June 2006. The husband asserted that he and
the wife both used the card while the wife maintained her parents covered all her tuition fees
and living expenses during this time.
64 The second respondent further said that the wife also benefitted from such funds from around
2004, also agreeing to repay such once working. Although the second respondent described
that she did not know the wife well at that point, a conversation to this effect was alleged by
Ms Wu to have taken place in 2004.
65 The wife denied such a conversation, and denied receiving such support from the second and
third respondents, described that she was supported by her mother, including in relation to her
tuition fees.
14
The wife’s mother gave unchallenged evidence that she provided financial

support to the wife.
66 The wife said that she did not know the husband until late 2004, and that they did not commence
cohabitation until November 2006.
67 Although the husband initially asserted that cohabitation commenced in 2004, in his oral
evidence he placed their cohabitation as commencing in mid-2005 following a car accident that

14 Affidavit of the wife filed 7 November 2023, [146].

Xia & Qiu (No 6) [2024] FedCFamC1F 8 11
they were involved in that he described left him injured, with the wife caring for him. The wife
accepted that the husband stayed in her home for a few months in 2005, but explained that the
home was rented by herself and two other girls, and it was not convenient for him to live there.
It appears to have been a temporary arrangement. The husband also appeared to describe that
he then travelled to China, with the wife travelling to China at a later point. The husband
asserted that the wife took his salary whilst in China.
68 While it appears that the parties’ relationship commenced in about 2004, the husband’s
evidence is unpersuasive that the defacto relationship commenced prior to the end of 2006, as
described by the wife. The variability in his own evidence about the relationship, along with
more general concerns about his credibility, mean that the wife’s account as to this aspect
should be preferred.
69 It is also a matter that undermines the notion that, as a relatively new boyfriend and girlfriend
relationship, the second and third respondents financially supported the wife in the expectation
that she would late pay them back. It is rendered further unlikely by the wife’s description that
she was supported by her own mother.
70 Further, the notion that the funds were provided as a loan to the husband is wholly reliant upon
the testimony of the husband and his parents, given under circumstances where there is nothing
about the transfers at the time that is suggestive that the support of the husband by his parents
was a mere loan.
71 As to the loans asserted in respect of the $100,000 and the sports car the husband produced an
undated borrowing declaration with a list of remittances (exhibit W16), asserting that by
1 December 2007 he had borrowed from his parents $150,356.34, amongst which $50,356.34
was for a sports car for the wife and other living expenses, and $100,000 to assist her with
immigration.
72 A further purported acknowledgement of debt in relation to the $100,000, purportedly executed
by the husband and the second and third respondents on 6 July 2007 was tendered at exhibit
W27. This was expressed to be for the purpose of the wife’s migration.
73 The wife accepted that the $100,000 was provided by the second and third respondents.
74 Under cross-examination the husband accepted that the $100,000 was not simply for the wife’s
immigration, but for his as well as they applied together. He said that it provided a further five
points on his and the wife’s immigration application. Bank transfer documents showing the

Xia & Qiu (No 6) [2024] FedCFamC1F 8 12
transfer of the sum into a government account (consistent with its use for migration purposes)
were tendered, that recorded that the transferor of the amount was the husband (exhibit W21).
The husband explained that this was necessary in order to show that the funds were from him
as a part of the immigration application. He denied that the signature on the document was his.
75 The wife accepted that the amount was not repaid following the successful immigration
application, describing that the husband used the monies for one of his businesses, called 51
Vehicles. The wife’s assertion as to this business was not supported by any documentary
evidence, nor by testing of the husband as to this proposition.
76 The husband also described that although this was an amount that was required to be paid back,
they used it for improvements upon the Page property once that was acquired. When asked
why the $100,000 had not been repaid to his parents the husband asserted that it was in order
to keep the wife happy and to avoid arguments.
77 As to the loan acknowledgement, under cross-examination by the wife’s counsel, the husband
could not identify the date of signature of W16, but accepted that it was in the last couple of
years. He then immediately said that he could not say if it was during the period of the litigation
(the last five years), but then explained that it was signed as evidence. Although his evidence
seemed to generally be that he simply accepted what his parents asserted as to payments
without checking, he suggested that they had shown him supporting documentation.
78 Subsequently, when cross-examined by counsel for his parents, the husband asserted again that
he could not recall when it was signed, but then asserted that it was definitely at the time
(meaning the time of the transfers). He asserted that the amount was to be repaid whenever he
had the money.
79 The borrowing declaration at W16 cannot be taken as reliable in what it asserts. It appears to
have been prepared in order to supplement the evidence before the court. It can be taken to
have been signed during the period of the litigation, and to be an attempt to construct evidence
to bolster the claim of debt. This conclusion is rendered more certain by further conclusions
reached later in the judgment about the fabrication of bolstering documents by the husband and
second and third respondents.
80 Some doubt also arises as to the borrowing declaration at W27, noting the concession by the
husband that the $100,000 was in relation to both parties’ migration not merely for the wife’s,
and noting more general credibility concerns as described further below.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 13
81 While it cannot be doubted that the $100,000 was provided by the second and third respondents,
its status at the time as a loan from them is uncertain. It does not appear to have been
subsequently treated in a manner consistent with an understanding that it was a loan by the
husband and wife, particularly when it was refunded from the government account, at which
point it was available for repayment to the second and third respondents if it was in fact a loan.
82 Regarding the car, the second and third respondents claimed that in early 2007, the husband
requested to borrow $50,000 from them to purchase a sports car for the wife, which they agreed
to. Following this conversation, they assert that between 14 February 2007 and 16 August
2007, they transferred a total of $50,281.42 to the husband for the purpose of purchasing the
wife a Nissan 350Z.
83 While such a car was undoubtedly purchased with funds provided by the second and third
respondents, under cross-examination, the husband’s assertions as to approximately $50,000
being spent were revealed as hollow. They firstly conflicted with his oral evidence that $30,000
or $40,000 had been spent but that he could not recall.
84 Further, while he asserted in his oral evidence that the purchase occurred in late 2007, necessary
timing for the husband and wife to have received the monies identified in the schedule of
remittances attached to the borrowing schedule, the bill of sale was dated before this, on
19 February 2007. This undermined the notion that the total remittances were for the car.
85 Further, that bill of sale set out full payment at $28,000.15 In explanation of the divergence
between this amount and that asserted by the husband, the husband asserted that the seller
required an additional cash payment. This explanation was particularly unpersuasive in a
context where the list of remittances annexed to the borrowing declaration showed that as at
the time of sale only $37,356.34 had been remitted. Even if cash was taken as a supplement,
the remittances do not explain how the full payment could have been made. Ultimately those
remittances post-dating the purchase were conceded by the husband do not necessarily relate
to the car, but to other expenses.
86 In his oral evidence the husband appeared to assert that he and the wife had repaid $60,000 of
these monies, but that the wife had prevented him from repaying more. This contradicts the
evidence of his parents.

15 Exhibit W15

Xia & Qiu (No 6) [2024] FedCFamC1F 8 14
87 In summary, it may be accepted that the various payments were made by the second and third
respondents, but not that they were characterised as loans at the time of their payment to or
through the husband.
88 Ultimately these claims of debts were abandoned as excluded by the operation of the relevant
limitations legislation. However, in general terms the claims in relation to the above monies
made by the husband and second and third respondents were lacking in credibility, insofar as
they attempted to ex post facto characterise the various payments as constituting a significant
accumulation of debt to the second and third respondents. This does not, however, deny
significance to the various payments as contributions made by the second and third respondents
on behalf of the husband to the property of the husband and wife that is now the subject of the
s 79 claim between them.
The Page property
89 The husband and wife purchased, in their joint names, a property at 11 Stutchbury Street in
Page in the ACT in December 2008 for $460,000. It has an agreed value between the husband
and wife of $840,000, and an outstanding mortgage of $159,128.
90 That property is currently subject to a claim by the second and third respondents who assert
that the entire beneficial interest is theirs. The husband supports their claim, while the wife
asserts that the beneficial ownership rests with the title.
91 It is accepted that it was purchased, unencumbered, with funds provided by the second and
third respondents which were transferred into an account in the sole name of the husband.16
92 The property is subject to mortgage in the sum of $159,128, for which the husband and wife
bear responsibility. This loan is contended to have increased by $6,940 as a result of the
husband’s failure to comply with orders that he make the loan payments.
93 It is further contended by the second and third respondents to have necessitated a loan from
them to the husband, drawn by the husband between May 2019 until May 2022, to meet
mortgage repayments totalling $73,947.81 that the husband was liable to pay pursuant to
interim consent orders made 10 May 2019.

16 The second respondent’s affidavit filed 3 November 2023, [10] and the wife’s affidavit filed 7 November 2023,
[216].

Xia & Qiu (No 6) [2024] FedCFamC1F 8 15
94 As noted above, it is contended by the husband that the property was renovated with the
$100,000 advanced by the second and third respondents for the husband’s and wife’s migration.
95 The second and third respondents make, in accordance with the points of claim document filed
by them, alternative claims in equity in respect of the Page property as set out below.
THE EQUITABLE CLAIM
96 The claim made by the second and third respondents, as pleaded in their points of claim
document, and as supported by the husband, is that the Page property is held by the husband
and wife on trust. This was described by the second and third respondents as either “a trust of
the kind the subject of Calverley v Green (1984) 155 CLR 252” (a purchase money resulting
trust) or “a trust of the kind the subject of Butler v Craine [1986] VR 274 at 283” (a common
intention constructive trust) for the second and third respondents, the husband and wife holding
the title, the second and third respondents the beneficial interest.
The Calverley v Green claim
97 This claim is reliant upon a resulting trust based upon the contribution by the second and third
respondents of the purchase price of the property. In Calverley v Green a resulting trust was
presumed to arise in favour of a purchaser in the proportion in which the purchaser contributed
the purchase money. The resulting trust, however, was determined not to arise where there are
circumstances that remove reason to presume that the title does not sit with the beneficial
interest, such as where a so-called presumption of advancement arises.17 A presumption of
advancement (and hence no resulting trust) has been held to arise where property is purchased
in the name of a child.18
98 The court emphasised that both presumptions are subject to evidence that contradicts that it
was the intention of the contributor of the funds, at the time of the purchase, to either retain or
to gift the beneficial interest.

19 That intention, or state of mind, usually is not inferred from

silence but from the words and actions of the parties.20
99 The determination of whether a resulting trust arises has recently been further considered by
the High Court in Bosanac.

21 That case considered closely the nature of the presumptions of

17 Calverley v Green (1984) 155 CLR 252, 247 (Gibbs CJ); 256 (Mason and Brennan JJ).
18 Ibid 247 (Gibbs CJ).
19 Ibid 251 (Gibbs CJ).
20 Ibid 261 (Mason and Brennan JJ)
21 Bosanac v Commissioner of Taxation [2022] HCA 34.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 16
resulting trust and advancement, and the significance and proof of the intent of the provider of
the purchase funds. Three judgments were delivered by the court.
100 Chief Justice Kiefel and Gleeson J explained the effects and interrelationship of the
presumptions, or so-called presumptions as follows:
[13] The presumption can be rebutted by evidence from which it may be inferred that
there was no intention on the part of the person providing the purchase money to have
an interest in land (or other property) held on trust for him or her. The presumption
cannot prevail over the actual intention of the party paying the purchase price as
established by the overall evidence, and where more than one person pays the purchase
price, as here, regard is necessarily had to evidence of each of their intentions.
[14] The presumption of advancement allows an inference as to intention to be drawn
from the fact of certain relationships. It applies to transfers of property from husband
to wife and father to child, but in Nelson v Nelson this Court accepted that there is no
longer any basis for maintaining a distinction between a father and mother so far as
concerns transfers of property to a child. Originally the relationships were considered
by themselves sufficient to afford "good consideration" for the conveyance, but a
rationale for the presumption has come to be found in the prima facie likelihood that a
beneficial interest is intended in situations to which the presumption has been applied.
[15] On one view, the presumption of advancement is not strictly a presumption at all.
It may be better understood as providing "the absence of any reason for assuming that
a trust arose". At an evidentiary level, it is no more than a circumstance which may
rebut the presumption of a resulting trust or prevent it from arising. It too may be
rebutted by evidence of actual intention.
22

101 Importantly, Kiefel CJ and Gleeson J observed at [21] that the court’s concern is to determine
intention at the point when the property was purchased. That concern is the necessary context
for considering the presumptions, and accordingly the strength of the presumptions will vary
from case to case. They accepted that the presumptions are circumstances readily rebutted by
comparatively slight evidence,23 and that “inferences to the contrary of the presumptions as to
intention may readily be drawn.”24
102 At [32] Kiefel CJ and Gleeson J accepted that the “question of intention is entirely one of fact.”
They appeared to accept what had been said by Cussen J in Davies v The National Trustees
Executors and Agency Co of Australasia Ltd [1912] VLR 397, that attention must remain fixed
on the intention of the purchaser or transferor at the time, that any matter relevant to that issue
is admissible, and “that evidence of that person’s thinking at the time might be accepted,

22 Ibid [13]-[15] (Kiefel CJ and Gleeson J).
23 Ibid [22].
24 Ibid [31]

Xia & Qiu (No 6) [2024] FedCFamC1F 8 17
although it would be received ‘with caution’”.25 In Bosanac there was no such direct evidence
of intention.
103 Similarly, Gageler J identified that it is intention, either proved or presumed, that is at the heart
of the formation of any trust. In the absence of direct evidence, or where the indications of
intention are equal or equivocal, he observed, the presumptions are determinative. The
presumption of a purchase money resulting trust is answered completely by a presumption of
advancement (which he, like Kiefel CJ and Gleeson J, observed that rather than being a
presumption, advancement is a circumstance of evidence) and where one arises, leaves no basis
to assume that a trust arose.26 Again, like the others he identified at [66] that:
Whether any, and if so what, inference is then to be drawn about the actual intention
of the contributor and the purchaser falls to be determined as an ordinary question of
fact on the balance of probabilities. "It is the intention of the parties in such cases that
must control, and what that intention was may be proved by the same quantum or
degree of evidence required to establish any other fact upon which a judicial tribunal
is authorized to act." Just as the standard of proof of intention is the ordinary civil
standard, there are no special rules about proving intention. No predetermined weight
is to be given either to the fact of a contribution having been made or to the
categorisation of the relationship between the parties. The significance of each of those
circumstances falls to be assessed within the totality of the circumstances of the case.
104 At [94] Gordon and Edelman JJ described a purchase money resulting trust as one that arises
by “objective intention.” It is in that context that the issues of the so-called presumptions arise:
[103] Presumption of resulting trust – what is presumed and when and how does the
presumption arise?
[104] Two immediate questions arise – when and how does a presumption of resulting
trust arise and what is presumed? Relevantly in the case of "voluntary conveyance
resulting trusts" and "purchase money resulting trusts", what is presumed is a
declaration of trust by the person who either transfers property, or pays the whole or
part of the purchase price of it. But whether that is presumed – whether that inference
is drawn – depends on issues of evidence and proof of a resulting trust. And in
answering those questions, it is necessary to address the matters raised by Deane J in
Calverley.
[105] The presumption of resulting trust – the standardised inference that allocates the
onus of proof – serves the same function as a civil onus of proof and operates to resolve
a factual contest when the relevant evidence is "uninformative or truly equivocal". It
arises if there be a paucity of evidence as to an intention to declare a trust. Put in
different terms, where the presumption arises, the existence of a resulting trust is an
inference drawn in the absence of evidence when, for example, a purchaser of property
causes it to be transferred to another or when a person contributes to the purchase of
property which is registered in the name of another. But such an inference – of resulting
trust – cannot arise where a plaintiff has led evidence that tends to establish an

25 Ibid [33].
26 Ibid [53] (Gageler J).

Xia & Qiu (No 6) [2024] FedCFamC1F 8 18
objective intention or the lack of an objective intention to create a trust.
[106] As a resulting trust is an inference drawn in the absence of evidence, it is
necessary to start with the objective facts. It is a factual inquiry. The question may be
framed in these terms: what were the parties' words or conduct at the time of the
transaction or so immediately thereafter as to constitute part of the transaction – the
objective facts?
[107] There are three dimensions to that factual inquiry.
[108] Where the objective facts based on evidence led by the plaintiff tend to establish
an objective intention that a provider of part of the purchase price would hold an
equitable interest as to a particular proportion of a particular property, there will be an
express trust which satisfies the three certainties of intention, subject and object. That
is the case that the defendant has to meet. There is no need for a presumption of
resulting trust to shift the onus of proof. The presumption of resulting trust does not
arise. It is unnecessary.
[109] On the other hand, where the objective facts based on evidence led by the
plaintiff tend to establish, even weakly, an objective intention inconsistent with a
declaration of trust, then there will be no case for the defendant to meet. Again, the
presumption of resulting trust will not arise. In this circumstance, the fact that there is
a spousal relationship is one of the objective facts: at best it merely reinforces, and is
not determinative of, the objective intention of the parties established by the objective
facts.
[110] Where, however, the objective facts based on evidence led by the plaintiff are
neutral, truly equivocal, non-existent or uninformative as to the objective intention of
the parties, then, consistent with the weak presumption of resulting trust, an inference
can be drawn of a declaration of trust by the provider of part of the purchase price.
That weak inference will be the case that the defendant has to meet.
...
[113] There is also an important temporal dimension to the factual inquiry. The
objective intention of the parties is determined at the time when the trust was
purportedly created – here, when the property in issue was purchased. Apart from
admissions against interest, the only evidence relevant and admissible as to the parties'
objective intention is their acts and declarations before or at the time of the transaction
or "so immediately [thereafter] as to constitute a part of the transaction". Subsequent
events and conduct are otherwise not admissible.27

105 The three judgments within Bosanac consistently emphasise the centrality of intention on the
part of the payer of the purchase monies to the formation of a trust. The inquiry as to whether
the beneficial interest is held on trust is an inquiry as to the intent of the payer at the time of
the payment of the purchase monies. They are further consistent as to the limited occasions on
which the so-called presumptions will be determinative, being occasions where the
circumstances of the transaction, and evidence in relation to the transaction are insufficient to
determine intention.

27 Ibid [103] – [110]; [113] (Gordon and Edelman JJ).

Xia & Qiu (No 6) [2024] FedCFamC1F 8 19
106 While, at face value, there may be some divergence as to whether subsequent statements as to
intent may be drawn on to prove the relevant intent at the time of the transaction, on deeper
consideration this is not so.
107 Chief Justice Kiefel and Gleeson J seemingly accepted evidence of a person’s thinking at the
time was admissible, Gordon and Edelman JJ rejected statements made beyond the time of the
transaction (unless against interest). Justice Gageler described at [67] a test of relevance:

Where evidence relevant to intention is adduced, the presumption and the counter-
presumption are therefore of practical significance only in rare cases where the totality

of the evidence is incapable of supporting the drawing of an inference, one way or the
other, on the balance of probabilities about what contributors and purchasers actually
intended when they participated in the purchase transaction.

108 A number of observations should be made about this potential divergence. Firstly, Bosanac
did not involve statements by either Mr or Mrs Bosanac as to intention at the time of the
transaction, and so, insofar as that issue was addressed in the judgment it was obiter dicta, and
not central to the resolution of the appeal.
109 Secondly, Gordon and Edelman JJ commented in the manner that they did on the basis of what
had been said in Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278 at 300
[65]:
In Charles Marshall, the plaintiffs were daughters of the donor and the Court said that
the presumption of an intention of advancement, that they be made beneficial as well
as legal owners of the shares, might be rebutted by evidence manifesting a contrary
intention. Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ said of the rebuttal
of presumptions by manifestation of a contrary intention:
“Apart from admissions the only evidence that is relevant and admissible
comprises the acts and declarations of the parties before or at the time of the
purchase (in this case before or at the time of the acquisition of the shares by
allotment) or so immediately thereafter as to constitute a part of the
transaction.” (emphasis added)
However, as Malayan Credit illustrates, whilst evidence of subsequent statements of
intention, not being admissions against interest, are inadmissible, evidence of facts as
to subsequent dealings and of surrounding circumstances of the transaction may be
received.

110 The reference to subsequent statements is consistent with s 66A of the Evidence Act 1995,
which allows previous representations as to intention where they are a contemporaneous
representation of that intention. Given that it is the intention at the time of the transaction that
is relevant, such a statement is temporally restricted in a manner similar to that described above.
I expect that this was the manner of restriction referred to by Gordon and Edelman JJ.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 20
111 It may then be considered that Kiefel CJ and Gleeson J were commenting on evidence given
as to previous intent, whilst Gordon and Edelman JJ were discussing evidence of a previous
representation as to intention, given after the fact, and outside of court.
The Butler v Craine claim
112 The relief identified at Butler v Craine [1986] VR 274 at 283, as pleaded in the second and
third respondent's points of claim is reliant upon a constructive trust based upon the common
intention of the parties. In Butler v Craine Marks J identified three elements to find the
particular constructive trust that was determinative in that case. The first is that the parties
must form a common intention as to the ownership of the beneficial interest in the property.
This does not require an express agreement, although an actual common intention must be able
to be inferred otherwise, such as from the conduct of the parties. The second is that the claimant
must have acted to his or her detriment in reliance upon that common intention. The third is
that it must be a fraud upon the claimant for the other party to deny the beneficial interest.
113 It may be considered that if the second and third respondents succeed in the resulting trust
claim, this constructive trust aspect of their claim is redundant.
114 It may also be considered that if the second and third respondents fail in establishing the
necessary intention in respect of their resulting trust claim, they will likewise have failed to
establish a common intention sufficient to establish this aspect of their claim.
The evidence as to intention
115 The points of claim document filed by the second and third respondents identified a suite of
factual contentions relied upon in support of their claims in respect of the Page property which
may be relevantly summarised as follows:
(1) They assert a conversation in 2007 between the husband and the second and third
respondents, where it was suggested that the second and third respondents would
provide funds to purchase a property for their retirement, but to be held in the husband’s
and wife’s names to assist the wife with her migration.
(2) They assert a conversation between the husband, wife and second and third respondents
prior to the purchase, that the purchase was for the second and third respondents to
retire even though the purchase was to be in the husband’s and wife’s names.
(3) They assert an agreement was prepared by lawyers in Shanghai, at the direction of the
second and third respondents, executed on 1 January 2008 by the husband and second

Xia & Qiu (No 6) [2024] FedCFamC1F 8 21
and third respondents, setting out the agreement to provide purchase funds of $400,000
to $600,000 AUD, allowing the use of the property, including for immigration purposes
by the husband and wife, a prohibition on renting the property without the consent of
the second and third respondents, a prohibition on selling or using the property as
security without consent, and for the future return of ownership to the second and third
respondents.
(4) The subsequent transfer of $520,828.49 between January and November 2008 to the
husband’s account.
(5) The purchase of the Page property in late 2008 for $460,000 in the names of the husband
and wife.
(6) The points of claim document then identified that the husband and wife subsequently
resided in the property, used it as security for a loan, and leased the property out absent
the approval of the second and third respondents, but that from about August 2018 the
second and third respondents have occupied the property, and met mortgage
repayments between May 2019 and May 2022 of $73,947.81 to prevent default.
(7) The second and third respondents further contend that they joined the proceedings in
May 2020 after discovering orders had been made by consent by the husband and wife
for the sale of the property.

116 A number of these assertions were not contentious. It was accepted that the monies had been
advanced, and that the property had been purchased in the husband’s and wife’s names. The
Page property was acquired in the husband’s and wife’s names as joint tenants. The purchase
was settled in December 2008 and the parties moved into the property the next day.28
117 It was accepted that the property had been used for security and had been leased out.
118 The key matter of contention was as to whether there was the agreement to transfer the title to
the second and third respondents, or whether the purchase was for the benefit of the husband
and wife.
Intention regarding the Page property
119 The second respondent deposed29 that a conversation took place between herself, the third
respondent and husband at an unspecified time between 2003 and 2007, wherein the husband

28 Affidavit of the wife filed 7 November 2023, [216]; W30.
29 Affidavit of the second respondent filed 3 November 2023, [7].

Xia & Qiu (No 6) [2024] FedCFamC1F 8 22
proposed that the second and third respondents buy a retirement home in Canberra in his and
the wife’s names. The husband purportedly assured that he could sign a loan agreement or
contract on behalf of the wife as they would soon marry.
120 The husband, as identified below, asserted that the conversation had taken place during a visit
by he and the wife to Shanghai in December 2007.
121 Under cross-examination the second respondent claimed a poor memory as to when they were
in Shanghai (despite the clarity with which she had described the purported conversation).
122 The second respondent further described that at a later point the husband told her that the
property in Page had been identified, and that the third respondent said that it could be used for
the husband’s and wife’s immigration, and the second and third respondents’ immigration and
retirement. She then described a conversation between the second and third respondents and
the husband and wife, where she described that the purchase was for the second and third
respondents to live in on retirement, to save rent for the husband and wife and to help the wife
migrate to Australia, but that the house was the second and third respondents. She said that
both the husband and wife expressed their understanding.
123 The second respondent asserted that the third respondent then engaged lawyers in Shanghai to
draft an agreement, signed on 1 January 2008 (exhibit W3), and a supplementary agreement of
31 December 2009 (exhibit W6).
124 When cross-examined about exhibit W3, the second respondent described that the agreement
was necessary to avoid a scam, to ensure that the house could not be occupied by someone else,
and to ensure that the wife could not refuse to return the house. She also said that the agreement
was to avoid litigation. When it was put to her that this meant that it was vital for the wife to
execute the document, the second respondent explained, firstly, that the wife asked the husband
to sign it, and that it was the wife’s promise that was the most important aspect.
125 The second respondent described the funds being deposited into the husband’s account.
126 The third respondent deposed to conversations in similar (and at times identical) terms.
30
127 He said that when the Page house was identified, he described that it would be put into the
names of the husband and wife temporarily, and only to help the wife to immigrate to Australia.

30 Affidavit of the third respondent filed 9 November 2023, [7].

Xia & Qiu (No 6) [2024] FedCFamC1F 8 23
He said that the husband and wife agreed. He described the production of the agreements at
exhibits W3 and W6 in identical terms to the second respondent.
128 When cross-examined the third respondent described that exhibit W3 was to ensure that the
husband understood their rights and to protect the second and third respondents. He nominated
the date of the production as 2006 or 2007, but said that he could not recall the exact day.
129 The husband deposed 31 to a conversation occurring between himself and his parents in
Shanghai in or around December 2007 in identical terms to those set out by his parents,
proposing the purchase of a retirement home for them in Canberra. Despite in his affidavit
asserting that the wife was also in Shanghai, she was not described as taking part in or being
present for the purported conversation.
130 Under cross-examination the husband was asked where the wife was for this conversation, to
which the husband asserted that the wife would make him ask his parents regarding money
(although he also suggested that she would approach them independently of him). He then
asserted that the wife was in a different city at the time of the conversation. When it was
pointed out that this was inconsistent with his affidavit which stated that they were both in
Shanghai he said that this was correct.
131 He further deposed to locating the Page property in about October 2008, and to a further
conversation wherein he and the wife expressed agreement to the idea that the house would
temporarily be in their names, but would be transferred to the second and third respondents on
their retirement and immigration to Australia. He described shortly thereafter (maybe “straight
away”) being provided with a document (exhibit W4) to that effect and that the wife told him
that he could sign on her behalf.
132 Exhibit W4 is an undated document described as a borrowing declaration signed by the
husband that describes that from January 2008 the husband borrowed $520,978.49 to cover
living costs and the (presumably his) parents’ immigration arrangements. It describes that of
that fund, $501,378.49 was to buy a house for his parents, whilst $19,600 was used for living
expenses for the husband and wife. The document also asserts that in 2007 $100,000,
purportedly refunded by the government, was spent on refurbishment of the Page property, and
that this was known to an “Uncle Huang.” It may be observed that the Page house was not

31 Affidavit of the husband filed 14 November 2023, [42].

Xia & Qiu (No 6) [2024] FedCFamC1F 8 24
even identified as the object of purchase until October 2008, rendering the assertion as to 2007
as wrong. The asserted timing of the document was also inconsistent with the idea that the
$100,000 had been spent on the renovation, as, according to the husband, the document was
signed following a conversation had at the time that the Page property was identified as an
appropriate purchase by he and the wife. No opportunity had then arisen to renovate it.
133 Under cross-examination about this document the husband asserted a lack of recollection. The
husband denied that this document was prepared as part of this case, or a fabrication. It
however should be taken to be a document prepared at a significantly later time than that
asserted by the husband and, accordingly, in circumstances different to those asserted by him.
Exhibit W4 should be considered to be a fabrication designed to bolster the claim that the Page
property is held beneficially by his parents.
134 The husband said that the funds were deposited into a joint account held by him and the wife.
135 The wife deposed that the Page property was a gift in accordance with cultural practice.32 She
did not describe any conversation to such effect with the husband’s parents, nor to any
conversation at all in relation to the purchase of the property. Rather she says that her mother
described a conversation with the third respondent wherein he had asserted that he would gift
a house in Australia for the husband’s and wife’s marriage. She denied knowledge of the
conversation described by the husband and second and third respondents of December 2007,
and denied the conversations asserted by them wherein she agreed to such an arrangement, or
that she directed the husband to execute such an agreement on her behalf.
136 While the wife accepted that funds had been transferred, she denied that it was into a joint
account. She also described that a portion of the purchase price was met through a first
homeowner’s grant in the sum of $14,000, applied to the stamp duty.
137 The wife described that exhibit W3 (set out below) had not been seen by her until it was
produced to her lawyers in 2021.
Exhibit W3
138 Exhibit W3 sets out that funds would be provided of between AUD $400,000 to AUD
$600,000, that the husband and wife would be able to occupy and use the property for
immigration purposes prior to the husband’s parents immigrating to Australia, that the husband

32 Affidavit of the wife filed 7 November 2023, [214].

Xia & Qiu (No 6) [2024] FedCFamC1F 8 25
and wife would transfer title to them following their immigration, and restraining the husband
and wife from encumbering or selling the property, or renting it out without approval.
139 Exhibit W3 was dated as executed by the husband and second and third respondents on
1 January 2008. This dating was consistent with the description of the conversation by the
husband and second and third respondents as occurring in Shanghai. It was not consistent with
the descriptions given by the husband and second and third respondents that the document was
prepared following the identification of the Page property, with such property not being
identified until October 2008.
140 More definitively, the dating of the document as 1 January 2008 was inconsistent with the
inclusion of the husband’s and wife’s Australian passport numbers on the document. The wife
was issued with an Australian passport on 16 December 2008, the husband not having
citizenship until after 13 November 2008.
33

141 These matters could only lead to a conclusion that the document was a falsehood, created and
executed some time after the husband received his citizenship and was issue with a passport.
142 Given the timing of the husband’s and wife’s receipt of Australian citizenship, predating the
settlement of the Page property, the part explanation of the property being placed in their names
in aid of the wife’s immigration is also undermined.
143 This undermining of the claimed provenance of exhibit W3 led to a flurry of activity and
explanation.
144 The husband gave a vague explanation that the document was a reissue of an earlier prepared
document, with the addition of passport numbers, implying that there was an importance to the
document bearing the various passport details as explanation of the reissue.
145 However, the husband’s and second and third respondents’ affidavits contained no hint of
having executed multiple iterations of the document.
146 A call was then made to the second and third respondents for any such earlier iteration of the
document.

33 Exhibit H1

Xia & Qiu (No 6) [2024] FedCFamC1F 8 26
147 That call was purportedly answered the following day. The proceedings were stood down to
enable the second and third respondents to produce affidavits attesting to the circumstances of
the document.
148 The document (exhibit R5) that was produced (in Mandarin) appeared to replicate exhibit W3
save for the omission of the husband’s and wife’s passport numbers and the second and third
respondents’ identity numbers.
149 The husband was unable to explain why this earlier version of the document bore neither his
parents’ Chinese identity numbers, nor those of the husband and wife (given that they had not
yet become Australian citizens), assuming, from earlier answers, that such identification was
of sufficient importance to, in part, warrant the reissue of the document as exhibit W3.
150 The second respondents explained that in answer to the call, they contacted the third
respondent’s sister in Shanghai who obtained it from a filing cabinet and sent a copy. In their
supplementary affidavits filed on the second day of the trial they further explained that the
version containing the passport numbers had been prepared “sometime in early 2009”34 upon
the husband providing both his and the wife’s passport numbers, with the document being
forwarded for execution to the husband via a social media platform, QQ. They explained that
it was dated the same as the original as it was, in effect, the same.
151 Intriguingly, this account was again undermined by the timing of the obtaining of a passport.
The husband did not receive his Australian passport until 4 August 2009, a timing inconsistent
with preparation and execution of exhibit W3 in early 2009. He however sought to explain his
passport number appearing on a document bearing a date prior to the issue of his passport as
being explicable by him receiving his passport number in correspondence prior to receiving his
passport. This appeared to be no more than a fabrication made on the run to explain the
problem in the evidence.
152 Both exhibits R5 and W3 were highly problematic.
153 Exhibit W3 was falsely presented as a document executed in January 2008. It could not have
been. The production of a document at that stage was also inconsistent with the explanation
that the Page property had been identified.

34 Affidavit of the second respondent and affidavit of the third respondent, both filed 5 December 2023, [1(d)].

Xia & Qiu (No 6) [2024] FedCFamC1F 8 27
154 No suggestion of an earlier iteration arose until the falsehood of exhibit W3 was established
due to the passport numbers. It remained, if executed in January 2008, inconsistent with the
earlier explanation that it was produced on the identification of the Page property.
155 Intriguingly, despite their claimed importance, a number of documents postdating the obtaining
of passport numbers by the husband and wife do not contain those numbers. This somewhat
undermined the idea that the numbers were so important to have caused a reissue of the
document as exhibit W3.
156 No cogent explanation was given as to the purported need to reissue exhibit W3 with passport
numbers recorded upon it.
157 Exhibits W3 and R6 should be considered to be fabrications deliberately designed to bolster
the husband’s and his parents’ claims in respect of Page. This conclusion further means that
documents produced as between the husband and second and third respondents, such as
acknowledgements of loan, should not be relied upon absent some other authenticating feature.

It further means, more generally, that caution should be exercised prior to relying upon self-
serving assertions made by the husband or 2nd or 3rd respondents. Absent adequate support

being able to be drawn from other sources, or from the surrounding circumstances, self-serving
assertions as to the financial arrangements between the husband and wife and the 2nd and 3rd
respondents will struggle to establish such matters as adequately established.
158 A further document, exhibit W6, was produced, described as a “Supplemental Agreement for
the Purchase of a Residential Property in Canberra” purportedly executed by the husband and
his parents on 31 December 2009. The husband sought to explain this document as prepared
by the Shanghai lawyer on the basis that the first document had issues and some things needed
to be added. One of the issues asserted by the husband was a lack of passport numbers (even
though such appear on exhibit W3). It asserts that the property referred to in exhibit W3 is the
Page house, and confirms that the amount of $520,9787.49 was remitted. It is signed by the
husband and both of his parents.
159 Other matters sit poorly with the claims that the property was in reality purchased for the second
and third respondents.
160 Despite the husband’s assertions as to the interest held by the 2

nd and 3rd respondents, exhibit
W2 was a loan offer document from Westpac, apparently executed by the husband (or at least
bearing what he accepted appeared to be his signature) and wife on 19 November 2009, that

Xia & Qiu (No 6) [2024] FedCFamC1F 8 28
implicitly described amongst the assets of the parties the Page property, offering that property
to be mortgaged in relation to a loan of $400,000. This was inconsistent with what the husband
asserts both as to the ownership of the property, and as to the restriction on the husband and
wife using it as collateral for a loan.
161 The husband’s financial statement filed at his commencement of proceedings35 asserted that
each of the husband and wife held a 50 per cent interest in the Page property without any
qualification as to an interest of his parents.
162 Similarly, the husband asserted in the affidavit filed with his commencement of the proceedings
that the Page property was jointly owned with the wife, again without reference to the purported
interest of his parents. When questioned about the financial statement and affidavit the
husband, accepting that he signed the documents, denied that he had sworn them, and blamed
his previous lawyers for errors in the documents that he had executed.
163 Further sitting poorly with their claims about the Page property, the second and third
respondents claimed that while they were upset on discovering this mortgage of their property,
following the husband and wife explaining that it was to acquire a business for which they
required more finance, they proceeded to provide a further approximate $80,000 in an
investment in said business. This appeared as an unlikely chain of events.
164 Perhaps of limited consequence given that the second respondent has limited, if any, English
language skills, the second respondent was present at many of the early hearings of the matter
during which Page was treated as the property of the husband and wife, but there was no
indication at that stage that it was held on trust for the second and third respondents. It was
only once orders were made for the sale of the Page property that the second and third
respondents sought to be joined as a party and pursue their asserted interest in the property.
The purported agreement first appeared a year later.
Is the Page property held on trust?
165 The intention of the second and third respondents that, on payment of the purchase price by
them that the Page property would be held on trust for them is an essential prerequisite for
establishing either a resulting trust, or a common intention constructive trust.

35 Exhibit W1

Xia & Qiu (No 6) [2024] FedCFamC1F 8 29
166 The combined evidence of the husband and second and third respondents, even coupled with
the documents that they sought to rely upon, is of insufficient reliability to establish such an
intent being in existence at the time of the payment of monies and purchase of the property.
To the extent that the documents, prepared at unidentifiable times, were able to be relied upon
(see the discussion above re Bosanac) they cannot be regarded as sufficiently reliable to support
a conclusion as to intent.
167 The claim by the second and third respondents as to a common intention constructive trust fails.
168 The wife was unable to give any direct evidence as to representations made to her, or in her
presence that went to the issue of intent. At best she relied upon her mother’s (Hong Chen)

assertion as to a comment made by the third respondent. Ms Chen was not required for cross-
examination, and was not challenged in relation to her evidence as to the third respondent

asserting that they would buy a house for the husband and wife if they were to remain in
Australia. No evidence was led to counter this assertion. This gives an adequate but slender
basis for concluding that the intention, in respect of the third respondent, was that the beneficial
interest would sit with the title.
169 Leaving this aside, the situation in this case is where, as described in Bosanac by Gordon and
Edelman JJ, and consistent with the other judgments, “the objective facts based on evidence
led by the plaintiff are neutral, truly equivocal, non-existent or uninformative as to the objective
intention of the parties” being a situation where reliance falls to the applicability of
presumptions to displace the coincidence of beneficial and legal title.
170 The funds for the purchase of the property were paid by the second and third respondents to
the husband, who is their child. The provision of funds for the purchase of property does not
attract a presumption of resulting trust where, as here, a presumption of advancement arises.
171 Accordingly, the claim of resulting trust by the second and third respondents fails.
172 Those monies were then expended on the Page property by the husband, acquiring it jointly in
the names of the husband and wife. No issue was raised in the case that the wife holds her
share on resulting trust for the husband as a consequence of his provision of the purchase price.
It may be noted that such a claim would be, ultimately, somewhat arid in the context of a s 79
adjustment as between the husband and wife in any event.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 30
Purchase of Coffee Club Canberra Centre
173 In June 2010, the husband and wife purchased the Coffee Club Canberra Centre for $550,000,
in the name of the corporate entity Akiross Pty Ltd. The wife describes that this was funded
by a $400,000 Westpac mortgage over the Page property as well as $80,000 given to the couple
by her mother and another $82,053 from the second and third respondents.
174 The second and third respondents say that they provided $82,077 on 2 June 2010 as an
investment in the store and were told by the husband and wife that they would receive dividends
in exchange. Accepting that such an amount was paid, the wife denied that this was either a
loan or an investment, and denied that there was a discussion in relation to profits.
175 I am unable to conclude that this amount was either a loan or an investment.
176 The husband and wife married on 18 May 2012. Various marriage celebrations were held in
China, funded in part by the parents of the parties. While many thousands of dollars were spent
on the celebrations there is little reason to assign significant weight to such.
Purchase at Kingston
177 In mid-2014 the parties purchased 24/6 Trevillian Quay, Kingston, ACT off the plan, with a
5 per cent deposit of the $875,000 purchase price.
Purchase of Majura Park and Gungahlin Coffee Clubs
178 On 27 July 2014 the husband and wife incorporated DN & EX Pty Ltd.
179 In August 2014 DN & EX Pty Ltd purchased the Coffee Club Majura Park for about $440,000.
The wife says that this, and the Coffee Club Gungahlin purchase (which was settled later in
September 2014) was funded via a loan of $120,000 from her mother (ultimately this was not
pressed as a loan, Hong Chen asserting an amount of $130,000 being provided), along with
$328,000 from the loan obtained in 2013 from the ANZ bank (which she says was initially for
the Coffee Club Gungahlin, the purchase of which had been delayed) a further loan from the
ANZ bank of $550,000 and that $120,000 was provided by a David Nguyen as a business
partner in the Majura Park business. She says that 51 per cent of the shares in DN & EX Pty
Ltd (the Majura Park business) were held by Akiross Pty Ltd, and that Akiross Pty Ltd held
100 per cent of the Gungahlin business.
180 It appears that in February 2019 the wife incorporated AWAQ Pty Ltd, which then took over
the franchise for the Coffee Club Majura Park from DN & EX Pty Ltd.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 31
181 On 24 February 2020 Judge Hughes made orders permitting the wife to sell half of the shares
in AWAQ Pty Ltd to fund refurbishment costs for the Coffee Club Majura Park.
182 In about September 2014, the husband and wife, through Akiross Pty Ltd purchased Coffee
Club Gungahlin for $750,525.19.
Purchase at Crace
183 Land was purchased by the parties jointly at 50 Samaria Street, Crace, ACT (the Crace
property) in 2014 for the purpose of building a family home. The property is presently
unencumbered and has an agreed value of $1,550,000.
184 In 2015 the builder of the Crace property entered into administration prior to the home being
completed. The parties lost a portion of the funds that had been paid to the builder. The parties
were at odds over the extent of this loss.
185 The second and third respondents assert that the property was in part financed by a loan from
them of $319,916, provided between 7 May 2015 to 26 January 2016.
186 A loan (or part thereof) was evidenced by an agreement signed by the wife regarding the
borrowing of RMB 1 million (AUD $219,000) on 14 July 2015, subject to the current interest
deposit rate in Australia, and to be repaid within 3 years (exhibit R7). That loan agreement
noted that the RMB 1 million included a transfer that had already taken place of $20,000 AUD.
Intriguingly, given the second and third respondent’s claims in respect of Page, the loan
agreement also provided that a bedroom in the Page property would be reserved for the second
and third respondents once the husband and wife moved into Crace.
187 The wife accepted that a loan of $200,000 was taken from the second and third respondents,
but disputed their claim of a loan of $320,000.
188 The wife was taken through a series of deposits into an account (exhibit R6) on 7 May, 15 July,
17 July and 26 August 2015, accepting that a number came from the second and third
respondents, however, she could not determine the source for numerous other deposits,
observing that the husband was involved in a number of different businesses. She accepted
that in May 2015, the second and third respondents deposited approximately $139,000, and
that there were further deposits in July and August 2015 totalling approximately $165,000, the
source of which she could not identify.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 32
189 The second and third respondents then relied upon a series of remittance notices (LW7 at
exhibit R13) showing transfer of funds to the husband and wife on 7 May, 14 July, 16 July, 25
and 26 August 2015 in 7 tranches totalling about $315,000 that appeared to correspond to the
deposits into the husband’s and wife’s joint account.
190 It should be accepted that approximately $315,000 was provided by the second and third
respondents, rather than the $219,000 the subject of the loan agreement. The use of the monies
remains indeterminate.
191 The husband says that on 7 July 2015 he and the wife borrowed $328,000 from the National
Australia Bank. The wife says that these monies were used on the Crace property.
192 The house was completed in 2016 or 2018. The difference is inconsequential.
193 The second and third respondents deny any repayment of the claimed $319,916. The wife
claims to have repaid $90,000, comprised of two cash payments of $10,000 each and seven
transfers of $10,000. The wife asserted that these payments were made across January to July
2017 following the sale of the Canberra Centre Coffee Club.
194 Accepting that $70,000 was paid between January and July 2017 (exhibit R8), the second and
third respondents claim that those payments were in respect of another loan from the Xiamen
Bank, as identified below.
The purported Xiamen loan and Minhang apartment
195 The husband and second and third respondents describe a loan taken from the Xiamen
International Bank Shanghai Branch on 27 July 2016 for the purpose of furthering the
renovation of the Crace property and to assist in the opening of a shop. The security for this
loan was an apartment at Room 701, No 35 Lane 169, Quinghsan Road, Minhang District,
Shanghai District, People’s Republic of China.
196 The second and third respondent assert that a discussion took place in July 2016 in Shanghai,
where the wife and husband asked for more money to renovate Crace and to open a shop (after
the receipt of the approximate $320,000 that had exhausted the savings, purportedly of the
second and third respondents). They say that they offered their apartment as security and
provided a copy of the loan agreement (exhibit W17).
197 The second and third respondents say (but do not otherwise support) that this loan required
payments of about AUD $10,000 per month. They say that this was partly repaid by the

Xia & Qiu (No 6) [2024] FedCFamC1F 8 33
husband and wife between July 2016 and August 2017 (totalling $70,000) but that they have
since met repayments totalling RMB 1,620,498.70 (AUD $375,000) without reimbursement
from the husband and wife.
198 The second respondent asserts that upon inquiring about the stopped repayments, the husband
told her that the wife controlled their finances and was refusing to make the loan repayments.
199 The third respondent asserts that a number of messages passed between he and the wife in April
2017 and August 2018 regarding the payments for the loan. The wife says that she only came
to know of the Xiamen loan at this time, that she raised it with the husband, who told her that
it had nothing to do with her.
200 A letter of demand was sent to the husband and wife on 11 October 2018 (after the husband
and wife had separated).
201 The husband makes no reference to this loan in his primary affidavit despite being the specified
recipient of the funds.
202 The loan contract (exhibit W17), executed by the husband and the third respondent in July
2016, specifies that the husband is the debtor party, the second and third respondents are
guarantors, the Minhang apartment is security for the loan (described as owned by the third
respondent and the husband), each agreeing to encumber the property with a mortgage to secure
the loan of RMB 2 million (about AUD $440,000). The agreed value of the Minhang apartment
set out in the contract is at RMB 4,430,000 (about AUD $975,000).
203 Oddly, despite his execution of the loan contract the husband denies that he has an interest in
the Minhang property.
204 The wife was challenged in respect of the Xiamen loan. She accepted that deposits totalling
approximately $250,000 were made into the joint account over a period of about four days in
September 2016 (exhibit R10). However, the wife said that she did not know where the monies
had come from, describing that there were many transactions (in the context of the parties’
varied commercial interests).
205 It may be observed that the deposits are not equivalent to the amount purportedly borrowed,
and no documents were provided to demonstrate the drawing down of the loan, or that the
source of funds in exhibit R10 was the loan, nor that payments were made by the second and
third respondents in relation to the Xiamen loan.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 34
206 This leaves the evidence as to this loan in a precarious state. It may be accepted that there was
a loan. It may be accepted that it was secured against the Minhang apartment. It may be
accepted that the husband has an ownership interest in the apartment. However, the reason for
and the extent of the drawing of the loan are unclear, as are the recipients of the funds. It is not
clear that the deposits identified have anything to do with the loan.
207 In this context, noting caution in relation to the unsupported evidence of the second and third
respondents, the debt claim made by them in relation to the Xiamen bank falls short of proof.
208 It may however be concluded, by virtue of the assertion of value adopted by the husband in the
loan contract, and assertion of shared ownership made by the husband in the loan document,
that he holds an ownership interest in the Minhang property (equating to a half share of
$975,000). In the absence of proof of the asserted counteracting debt it can be taken to
approximate, as sought by the wife in her balance sheet, $470,000.
209 As noted above, in August and September 2015 the Majura Park and Gungahlin Coffee Clubs
were purchased.
210 The husband says that between 15 July 2015 and 26 January 2016, the second and third
respondents transferred approximately $295,000 into the husband and wife’s joint account,
which he says was used for the fit out of the Gungahlin Creamery & Co as described below.
211 This, however, appears to be a double count of the loan monies described above in respect of
the Crace property. Whether they were advanced for one purpose or another is of little or no
consequence.
Sale of Coffee Club Canberra Centre
212 In early 2016 the Coffee Club Canberra Centre was relocated and underwent a fit out, costing
the husband and wife about $390,000. The wife says this was funded through a loan of
$130,000 from her mother (again apparently not pressed as a loan), a further loan from the
ANZ Bank of $230,000 and otherwise from savings.
213 In late 2016, the husband and wife sold the Coffee Club Canberra Centre business for
$1,000,000. The wife describes that they received net proceeds of sale of approximately
$670,000. It does not appear to be contended that the ANZ loan remains extant.
214 The wife says that those proceeds were then applied to purchasing two Creamery & Co
franchises in Gungahlin and in the Macquarie Centre (held in the name of WNA Group Pty

Xia & Qiu (No 6) [2024] FedCFamC1F 8 35
Ltd) which had a fit out cost of about $130,000, the deposit and stamp duty for the Kingston
property and towards the construction of the Crace property.
215 WNA Group Pty Ltd was set up in May 2016 with the second respondent as the sole
shareholder and director.
216 The second and third respondents claim that WNA Group Pty Ltd was established to provide
the second and third respondents with an income stream after they immigrated to Australia.
217 The wife claims that the husband’s mother was installed as director and shareholder of WNA
Group Pty Ltd as neither she nor the husband could own the Creamery & Co businesses because
this would breach their franchise agreement with Coffee Club. The wife claims that it was not
intended for either the husband’s mother or her father to be the real owner of the company or
business.
218 The second and third respondents contend that a total of $402,000 from the proceeds of sale of
the Canberra Centre Coffee Club were repaid to them for their initial investment ($82,000), the
purchase of serving and glassware for the business ($20,000), profit dividends over the 5-year
period ($200,000) and additional profits from the sale of the business ($100,000). The second
respondent gave evidence that these amounts were calculated by the wife. The wife denied
that this was the case.
219 No documentary evidence was identified to support this contention. No evidence was given
either of the amount be paid to, or subsequently paid from the second and third respondents.
No evidence or relevant declaration of income for taxation purposes was tendered.
220 In contrast, the husband gave evidence in his affidavit that by the time of the formation of DN
& EX Pty Ltd in 2014 that he and the wife had repaid the second and third respondents for their
investment into the Canberra Centre Coffee Club in the sum of around $100,000. Again, this
contention was without documentary support.
221 The wife denies that a payment of $402,000 was made or due.
222 The second respondent claims that from the funds received from the sale of the Canberra Centre
Coffee Club, $120,000 was invested into each Creamery & Co cafe and $60,000 was invested
into both Akiross Pty Ltd and DN & EX Pty Ltd, with the remaining funds being applied
towards operating costs of The Creamery & Co businesses. The second respondent contends
that, as she and the third respondent could not speak much English, it was intended that the

Xia & Qiu (No 6) [2024] FedCFamC1F 8 36
husband and wife were the ‘operational consultants’ of the company’s cafe shops. She claims
that she maintained an active role in the WNA Group by carrying out inspections of the cafes’
refurbishments, monitoring the businesses and finances and signing off and approving
documents as the sole company director and secretary. This was a less than persuasive
description of the discharge of the requirements to run such a business.
Creamery & Co Gungahlin
223 In September 2016 WNA Group Pty Ltd entered into a lease agreement for Creamery & Co
premises in Gungahlin.
224 The wife accepted that it was the second respondent who signed and then guaranteed the lease
of one of the shops and who executed a share sale agreement with another coffee related entity,
The Espresso Room (an investment that subsequently fell through). The wife describes that an
investment in this entity of $160,000 was made (it was unclear how such was funded), but that
they were able to receive these funds back.
225 The wife says that in late 2016 the second respondent indicated that she no longer wished to be
involved in WNA Group Pty Ltd.
226 In November 2016 the second respondent was replaced as the director and shareholder by the
husband. The wife agrees that she prepared the resignation letter for her (exhibit R9), but did
not see the second respondent sign, leaving the document with the husband. The wife further
says that she has not seen the share transfer document that effected the transfer to the husband.
The husband denied that he gave permission to be so appointed.
227 By the time of the trial it was uncontroversial that the signature on the resignation document
was not that of the second respondent, but that someone else had signed the document. It was
not established at trial who was responsible for the signing of the document.
228 The sale of the Kingston property settled in December 2016 for a total purchase price of
$875,000. The husband and wife paid 20 per cent of the purchase price and financed the
remainder with a loan from the Commonwealth Bank. The wife says that proceeds from the
Coffee Club Canberra Centre were used for this purpose.
Creamery & Co Macquarie Centre
229 In late 2016 or early 2017 the husband and wife took over the operation of the Creamery & Co
at Macquarie Centre in Sydney.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 37
230 On 19 January 2017 WNA Holdings Pty Ltd was formed with the fourth respondent as the sole
shareholder and director.
231 Subsequently on 20 January 2017 the wife’s father, the fourth respondent, was substituted as
the sole shareholder and director of WNA Group Pty Ltd.
232 In December 2016 the Creamery & Co Gungahlin opened.
233 The wife says that the fit out for the Gungahlin Creamery & Co business cost approximately
$300,000 which was sourced from accounts held by Akiross and jointly by the husband and
wife. Noting the husband’s contention that the funds were loaned from his parents, but that
those funds appeared to be contended by them to be provided for the Crace property, it is
unclear whether some of the funds accessed by the husband and wife came from monies loaned
by the second and third respondents.
234 It may be observed that the husband’s initial affidavit did not claim, in accordance with his
current position, an interest held by his mother in DN & EX Pty Ltd, Akiross Pty Ltd, nor WNA
Group Pty Ltd, although it contained his claim that his mother had been wrongly removed as a
director of WNA Group Pty Ltd.
Denman Prospect properties
235 The husband was involved in further transactions in relation to land at Denman Prospect, via
two entities, being Denman Terraces Pty Ltd and Denman Units Pty Ltd. As of February 2017
the husband was the director of each of these entities, with the shares held by WNQ Holdings
Pty Ltd, a company under the control of the husband.
236 The husband says that in February 2017 he placed five put and call options on five properties
located at Denman Prospect in the ACT. He says that a friend of the third respondent, a Mr Zhu
transferred $340,000 in a number of separate transactions into the husband’s and wife’s joint
account for the purpose of completing the purchases of these properties through the two
corporate entities. No documentary evidence was provided to support the transfers.
237 Two sets of sales instructions were then given for blocks in section FF at a value of $1.85
million and in section H at a value of $1.8 million.
238 In relation to the section FF properties the husband accepted that a deposit had been paid, via
Denman Units Pty Ltd, along with stamp duty of $91,620. He says that when the time came to
settle the purchase the wife refused.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 38
239 This sale was not completed and although the deposit was not refunded, the Stamp Duty was.
The husband accepted that the refund went into his personal account. What happened to that
money is unclear, the husband failing to account for it.
240 The husband denied that the stamp duty had been either paid or refunded in respect of the
Section H property. However, exhibit W22 is a notice of assessment of stamp duty for that
property at $106,625.00. That notice bears the word “paid” written upon it in what the husband
accepted was his handwriting. Absent further evidence this provides a too slim basis to
conclude that the duty was repaid, refunded and has been retained or dealt with by the husband.
241 The husband also explained that the $25,000 that was paid for options in relation to the
properties was lost.
242 The husband further says that on 28 November 2017 he purchased a property at 26 Temple
Street, Denman Prospect for $680,000.
243 In 2018 the husband, through an entity Expand Projects Pty Ltd purchased land at 25 Heseltine
Street, Denman Prospect, ACT. Although the husband denied any shareholding of this entity,
he accepted that on the sale of the land in May 2018, he received $92,076.84. However, when
asked what happened to the money the husband asserted that his commercial lawyer, Jason
Wenning of Lexmerca would know, although he did not recall. He asserted that the wife knew
“everything.”
Sale of Creamery & Co Macquarie Centre
244 In July 2018 the parties’ interest in Creamery & Co Macquarie Centre was sold for about
$230,000. The husband says that the wife did this without reference to him or his parents. The
wife says that the husband was involved in obstructing the sale.36
245 She describes that the proceeds were used to pay about $168,000 to the ATO in relation to
superannuation, a $50,000 investment and interest payment to the wife’s mother and various
other accounts, loan payments and land tax payments.
Separation
246 In August 2018 the parties separated. The husband was charged with sexually assaulting the
wife but ultimately acquitted.

36 Affidavit of the wife filed 7 November 2023, [186]

Xia & Qiu (No 6) [2024] FedCFamC1F 8 39
247 In February 2019 the wife incorporated AWAQ Pty Ltd, which then took over the franchise for
the Coffee Club Majura Park from DN & EX Pty Ltd. The husband says that he does not know
how the wife was able to do this.
248 The husband commenced proceedings in September 2018.
249 On 24 February 2020 Judge Hughes made orders permitting the wife to sell half of the shares
in AWAQ Pty Ltd to fund refurbishment costs for the Coffee Club Majura Park.
250 Orders were also made that provided for the husband to have sole occupation of the Kingston
property.
251 On 10 May 2019, consent orders were made that required the husband to pay all outgoings for
the Kingston and other properties.
Sale of the Kingston property
252 Orders were made on 22 May 2020 for the sale of the property, with the husband ordered to
vacate the property by 9 June 2020. The wife asserts that the indebtedness in relation to this
property subsequently increased by $21,491, incorporating arrears of $16,021, legal fees of
$440 charged by the buyer following delay, and penalty interest of $5,030 (exhibit W25). The
wife contends that the husband failed to provide the correct keys and caused extensive damage
to the property, which cost her $1,817.10 to remedy.37
253 The husband accepted that he accrued the arrears, that he failed to execute the transfer
documents (resulting in Registrar doing so), and that he was responsible for the incurring of
the delay and penalty interest charges.
254 The second and third respondents contend that an oral agreement was struck with the husband
to loan funds to him for repayments from 20 May 2019 until 31 January 2020, resulting in a
total, not repaid to them of $65,339.50.
255 The property in Kingston was sold in October 2020.38 By consent orders of July 2022 the
proceeds were used to pay loans, tax and other liabilities.

37 Affidavit of the wife filed 7 November 2023, [239].
38 Exhibit W25.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 40
Sale of Coffee Club Gungahlin and Denman Prospect land
256 In late March 2022 the wife entered into a contract for the sale of the Coffee Club Gungahlin
to a Ms Wang and Mr Mao for the sum of $700,000. Orders were subsequently made on
24 June 2022 by Senior Judicial Registrar Evans to support the sale and to deal with the
proceeds. It is not contended that there are proceeds left to be distributed.
257 On 22 March 2022 by agreement the parties sold the Denman Prospect land, which had accrued
arrears of about $43,000.

39 By consent orders were made of July 2022 for the proceeds to be
used to pay loans, tax and other liabilities. The sum of $92,076.84 remains from the sale for
distribution.
WNA Construction40
258 The husband says that in 2018 the second and third respondents set up WNA Constructions Pty
Ltd, offering the husband work in early 2019. He says that he was made a director so that he
could obtain a director’s loan to pay legal fees in relation to his criminal proceedings.
259 A loan contract was purportedly entered into by Akiross Pty Ltd for the purchase of an
excavator on credit for $57,000. The husband conceded that despite the purchase documents
purportedly containing the wife’s signature, she had not signed the document.
260 The excavator was subsequently stolen, and an insurance payout of $57,000 was received by
WNA Construction Pty Ltd, which was noted as the owner of the excavator. This left the
position that Akiross Pty Ltd was liable for the cost of the excavator, but the proceeds of the
insurance payout were held by WNA Constructions Pty Ltd. An assurance was given by the
second respondent that the proceeds of the insurance payout would not be disposed of pending
the disposal of these proceedings. No document has been tendered to indicate that the Akiross
Pty Ltd liability for the excavator has been paid.
261 Akiross Pty Ltd is now deregistered. Pursuant to s 601AD of the Corporations Act 2001 (Cth),
a company ceases to exist on deregistration and any property not held on trust vests in the
Australian Securities and Investments Commission (“ASIC”). Akiross Pty Ltd is not a party
to these proceedings, and nor is ASIC. Whilst the wife claims that this amount sits in the pool
of property, it does not. Remedies for issues arising out of the excavator lie elsewhere.

39 Exhibit W33.
40 Balance at September 2022 (W29).

Xia & Qiu (No 6) [2024] FedCFamC1F 8 41
Notional add-backs
262 The wife sought a series of notional add-backs, each relating to increases in indebtedness to
the Page, Denman Prospect and Kingston properties occasioned by the husband failing to
comply with orders that he meet the outgoings. Closely related to this are post separation debts
accrued by the husband via borrowings from his parents in the meeting of a number of the
outgoings.
263 Notionally adding back is, according to authority, not the usual course. In this case, to the
extent that the husband had complied with the orders the corollary is that he can call upon such
as a post separation contribution on his part. His borrowings from his parents, where he retains
the liability to them, may be counted in his favour as a contribution, while the retention of the
loan reflects the obligation that was cast upon him by the orders. This is sufficient to deal with
that aspect.
264 Accordingly, the husband should bear the loan to his parents in respect of this aspect, and
receive credit for the contribution made as a consequence of incurring that debt.
265 To the extent that payments were not made, had the husband complied, increased equity and
proceeds would be available to the parties, and greater weight could be assigned to the
husband’s contribution. He has not however made that contribution, leading to lesser weight
than might otherwise have being given to his post separation contributions than had he
complied. Again, this is sufficient to recognise the circumstances of the case rather than
resorting to notional adding back.
266 Accordingly, no notional add-backs should be effected.
Loans owed to the second and third respondents
267 Leaving aside the post separation loans to the husband, the remaining liability to the second
and third respondents arises out of monies advanced in putatively in respect of the Crace
property (although potentially mingled and used for other purposes).
268 While the loan agreement executed by the wife was for $219,000, the banking records establish
that a greater sum of $315,000 was provided. Against that the banking records also
demonstrate that seven transfers of $10,000 were effected by the wife. Additionally, the wife
claims two $10,000 cash transactions. Although this was disputed by the second and third
respondents, the wife does not labour under the same credibility issues as do the second and

Xia & Qiu (No 6) [2024] FedCFamC1F 8 42
third respondents, and her testimony is sufficient to establish that the addental $20,000 was
repaid.
Value of the corporate entities
269 A single expert forensic accountant, Peter Haley, was appointed in relation to the valuation of
the corporate entities. Relevantly he concluded nil value for the WNA Group Pty Ltd, and
AWAQ Pty Ltd.
270 The opinions offered were substantially based upon the financial reports for the entities, which
indicated significant losses by the WNA Group Pty Ltd continuing on from the 2020-2021
financial year, rendering it not consistent with a profitable business, and also one in which the
liabilities significantly outweigh the assets.
271 Similarly, AWAQ Pty Ltd has made significant losses for a number of financial years, and
liabilities significantly outweigh assets.
272 The single expert’s evidence was challenged on the basis, primarily, of the limitations in the
material that was provided to him, noting that only limited accounting records were provided.
The single expert accepted that this led to limitations in the report provided, as a number of the
financial statements could not be tested against the underlying accounting data. He accepted
that he had not conducted an audit of the company financial records (nor was he asked to) and
that he was unable to verify underlying transactions.
273 However, the parties had ample opportunity to deal with such issues in the leadup to the trial.
To the extent that an issue was raised at trial that the electronic accounting records had not been
provided by the wife for the entities (she explained that they were held by the previous
accountant who could not be located) the extent of material provided to the single expert was
well known to the parties in advance of the trial, they having interacted extensively over what
was to be provided.
274 Importantly, the material that was provided in relation to the entities provided a credible basis
upon which the value the parties’ interests, meaning that the evidence of the single expert was
sufficient to establish the nil value for the corporate entities.
Other
275 The parties hold various other chattels, accounts and minor debts that were not the subject of
dispute.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 43
276 Since separation the husband has accumulated a debt to his parents in respect of his obligations
in relation to the properties of approximately $179,000.
Superannuation
277 The wife holds a Hostplus Superannuation interest. This may be taken to be worth $9,394 (not
valued for the purpose of splitting but subject to an admission against interest).
278 The husband holds an Essential Super (CBA). This may be taken to be worth $180,000 (not
valued for the purpose of splitting but subject to an admission against interest).
SUMMARY – THE POOL OF PROPERTY
Property Ownership Value
50 Samaria St Crace ACT Jointly owned by the husband and wife $1,550,000
11 Stutchbury St Page ACT Jointly owned by the husband and wife $840,000
Page Mortgage ($159,128)
Minhang Apartment Husband’s share $470,000
Toyota Kluger Husband $9,000
Savings Wife $6,365
Husband $6,967
ACT Revenue refund Husband $91,620
Heseltine St proceeds Husband $92,076.84
WNA Group Pty Ltd Joint Nil
AWAQ Pty Ltd shares Wife Nil
QF and XL Family Trust Joint Nil

Xia & Qiu (No 6) [2024] FedCFamC1F 8 44
Query add-backs – do not add-back rather s 75(2)(o)
Credit cards Wife ($8,949)
Debt to 2nd and 3rd resp Joint ($229,916)
Superannuation Wife $9,394
Superannuation Husband $180,000

279 This leaves a net total pool value, including the parties’ superannuation interests of
approximately $2,857,000. That amount takes into account the mortgage liability on Page, the
debt to the 2nd and 3rd respondents and the wife’s accumulated credit card debt, together
totalling approximately $398,000.
DISCUSSION
280 The pool of property may be considered as set out above. It is not controversial that there
should be an adjustment of the parties’ property interests, in the context of the breakdown of
their marriage and shared efforts in relation to, and shared ownership of the property acquired
during the relationship.
281 As noted earlier in the judgment, the equitable claim of the second and third respondents fails.
However, it can be concluded both that the parties have a joint indebtedness to them, albeit not
to the extent claimed. It can also be concluded that various monies provided by the second and
third respondents, that do not constitute a liability for the parties, weigh into the balance of the
husband’s contributions. Further, whilst the husband has acquired and will retain post
separation debts to his parents in relation to his obligations for the upkeep of the properties,
this weighs into the assessment of his contributions.
282 It is common that the parties held no property of significance at the start of their relationship
in about 2006. Their early property was acquired in large part by monies provided by the
second and third respondents. This resulted, early in the relationship in the wife’s sports car,
the provision of $100,000, firstly for immigration purposes and then retained outright by the
husband and wife, and then in the unencumbered Page property. By the start of 2009 the
husband and wife had a significant property pool contributed in large part through the husband
by virtue of the second and third respondents.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 45
283 From this point, as the husband and wife involved themselves in various businesses and other
investments, the arrangements have less clarity. Both the husband’s and the wife’s parents
provided funds in relation to the acquisition of further property and business interests. A
distinction arises as the monies from then insofar as they were provided by the husband’s
parents, appear in large part to be loans, actively identified by them in these proceedings.
284 Loans were provided by the second and third respondents at the time that the parties were
building a home in Crace and establishing a number of cafes, which have, following a part
repayment, left the husband and wife indebted to the second and third respondents in an amount
of approximately $230,000. Their provision of approximately $80,000 toward the Coffee Club
Canberra Centre, not having found characterisation as a loan or investment also constitutes a
contribution on the part of the husband.
285 Whilst initially characterised as a mixture of loans and gifts from the wife’s parents, their
provision of about $80,000 for the Canberra Centre Coffee Club, and monies for living
expenses and in various tranches of about $270,000 toward the business interests were not
characterised as loans in these proceedings, rather being characterised as contributions on the
part of the wife by virtue of her family.
286 These too constituted a significant contribution on behalf of the wife, but not to the extent
effected by the husband’s family.
287 Although both families contributed to the wedding celebrations, no cogent reasons for
considering these matters to be of weight were identified.
288 The husband and wife appeared to both engage in significant work in the various business
ventures and care of the children until their separation, contributing in these realms in varying
degrees.
289 Noting the involvement of both the husband’s and wife’s families, and the sustained strong
efforts of both the husband and wife in relation to their business interests and the care of the
children, by the point of separation it may be considered that the contributions favoured the
husband over the wife 57.5-42.5.
290 Separation marked a point of significant change.
291 The husband, by virtue of consent orders, took on responsibility for the outgoings on the
parties’ real property. This significant contribution on his part was ameliorated by his various

Xia & Qiu (No 6) [2024] FedCFamC1F 8 46
failures to comply with those orders, but to the extent of his compliance. It is a contribution
made out in large part by the indebtedness for such that he now owes his parents.
292 The husband’s contributions toward the upkeep of the children have been limited, and his direct
involvement with the care of the children has been non-existent, even if his preference may
have been for a different arrangement.
293 Otherwise, his ongoing contribution to the property of the parties appears limited, he conceding
such limitations on his capacity as to cause his parents to employ him through their own
corporate entity.
294 In contrast, the wife has worked hard to effect the maintenance and preservation of the parties’
business interests, albeit with limited success, given their lack of profitability. The wife has
exercised the sole care of the children for a period in excess of five years. She has done so
with minimal financial support from the husband who has retained for himself the bulk of his
earnings, the wife relying upon a minimal income and family tax benefits.
295 These extended post separation efforts on the part of the wife see the contribution balance
swing back to 50-50.
296 The s 75(2) matters point to a further adjustment in favour of the wife. She presently has the
ongoing sole care of the children, in circumstances where the past history of contribution by
the husband toward the children gives little scope for optimism that anyone other than the wife
will bear the bulk of the burden of the expense of raising the children. While, pursuant to these
orders she seeks to and will retain a half interest in one Coffee Club business, that business has
not proven lucrative for a number of years. Whilst it may be accepted that it has been profitable
in the past, and may be profitable again, its prospects are at best uncertain. She is, however, a
university educated person with significant business experience, and some confidence for her
future prospects persists despite the uncertainty of the business venture.
297 While it is also true that if the husband pursues a career in business, his prospects are likewise
somewhat uncertain, the husband has been able to use his education to obtain a significant
income employed in the public service, demonstrating a reliable fall-back position for him
should he choose to engage in employment rather than business.
298 No orders are sought to split or move superannuation interests. The husband is in a
significantly better position than the wife in respect of superannuation, a matter further
emphasising a future differential between the parties. However, in observing such a

Xia & Qiu (No 6) [2024] FedCFamC1F 8 47
differential, it should also be noted that in terms of the property retained by each party, the
greater superannuation interest retained by the husband is not one that he will have access to
for a significant number of years. Given its inclusion in the overall split that quality of the
superannuation will necessitate a modification of the percentage split in favour of the husband.
299 That differential in position calls for an adjustment in favour of the wife to 60-40.
300 On the pool of property as identified above, of a net value of approximately $2,857,000, the
effect of the orders will be for the wife to receive a combination of assets and liabilities
constituting a net value of approximately $1,714,000, whilst the husband will be allocated a
combination of assets and liabilities constituting a net value of approximately $1,143,000.
CONCLUSION
301 The orders sought by the second and third respondents firstly seek relief based upon their claim
upon the Page property. The orders should not be granted. No declaration should be given in
relation to the chattels held at the Page property, as such order were not addressed and evidence
to support such a declaration was not identified.
302 Secondly, the second and third respondents seek declaration in respect of loans advanced to,
and orders for the payment of loans advanced to the husband and wife. That debt is assessed
at $229,916.
303 Thirdly, they seek relief in respect of compelling payments from the various corporate entities.
A basis for such relief has not been established.
304 Fourthly, they seek orders related to the removal of the second respondent as a director and
shareholder of WNA Group Pty Ltd, and consequential orders in respect of such.
305 The foundation for such relief lies firstly in the claims, unproven, that the second and third
respondents invested in WNA Group Pty Ltd and have ownership of that entity in a beneficial
sense. Secondly, the claim arises from the finding that the second respondent did not execute
the relevant documents to effect her resignation and the share transfer.
306 The difficulty with the provision of such relief is that I cannot be satisfied that the beneficial
interest in WNA Group Pty Ltd sits with the second respondent. Rather it sits with the husband
and wife who, but for minor involvement form the second respondent, developed, ran and
financed the various businesses. Under such circumstances the grant of the relief would be a
distortion of the true position. The relief should not be granted.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 48
307 While the second and third respondents are owed further money by the husband, for post
separation loans, they seek no order in relation to such but ask that the orders ensure that the
capacity for the repayment to be made is not prejudiced by the terms of the orders.
308 The orders sought by the wife seek the removal of a caveat held by the second and third
respondents upon the Page property. Consistent with the determination in relation to their lack
of interest in the property such an order should be made.
309 The wife’s orders sought seek that she retain the Crace property, and the husband the Page
property. They seek the disposal of the assets held by WNA Group Pty Ltd (The Creamery &
Co Gungahlin) with a split of proceeds in accordance with the overall percentage split. Such a
move sensibly provides a mechanism for the ending of financial relations and the parties to
realise any benefit that may flow from the disposal of that asset. The wife seeks to retain her
interest in AWAQ Pty Ltd (half share in the Coffee Club Majura Park), presumably in a hope
that she will receive income from such, with the parties retaining various other chattels and
their superannuation. The parties’ joint involvement with the QF & XL Family Trust, an entity
without value, should also be brought to an end as an aspect of finalising the parties’ financial
relations.
310 Orders for indemnification in relation to assets held by a particular party are sought, as is the
winding up of the now defunct entity DN & EX Pty Ltd.
311 The husband will be responsible for the joint debt owed to his parents (in addition to the debt
that he otherwise owes to his parents in relation to post separation borrowings), a factor that
the allocation of the property of the parties will reflect to ensure that the burden is evenly cast
upon the husband and wife.
312 Orders should be generally made in the scheme proposed by the wife, but effecting the
percentage split determined by this judgment. Such orders operate to end the financial relations
to the parties.
313 This will mean that the orders will provide for the wife to receive assets of a net value of
$1,714,000, but of a gross value of $1,723,000 along with her credit card liability. The husband
will receive assets of a net value of $1,143,000, but of a gross value of $1,532,000 along with
the outstanding mortgage liability for Page and the parties’ declared debt to the second and
third respondents, together totalling $389,000.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 49
314 Given that under the scheme of orders for the allocation of the assets, the husband will receive
combined assets to the value of approximately$1,690,000, this will necessitate a cash payment
to the wife of $158,000.
315 Such orders untangle the entwined financial interests that the parties have generated through
their relationship, reflect their contributions and reasonably anticipate their future needs and
provide for a just and equitable resolution.

I certify that the preceding three
hundred and fifteen (315) numbered
paragraphs are a true copy of the
Reasons for Judgment of the
Honourable Justice Gill.

Associate: LS

Dated: 25 January 2024

Xia & Qiu (No 6) [2024] FedCFamC1F 8 50

SCHEDULE OF ORDERS SOUGHT BY THE PARTIES

Applicant Husband
1. That the net property of the parties, after any amount owed to either of their parents is
repaid, be divided equally between the parties.41
On the first day of trial, the husband clarified the orders he sought to be the following:
2. The husband and wife to return all money owed to his parents (pursuant to the amount
claimed by his parents).
3. The Page property to be transferred to his parents and for the wife to pay the mortgage
on the property out in full.
4. The husband to keep his superannuation and personal property from the Crace property,
as well as 1 kilogram of gold and the parties’ collection of wine.
5. The Crace property to be sold and the proceeds to be split between the husband and
wife. The husband could not further articulate how this was to be split as he was unsure
of the extent of the liabilities on the parties’ businesses.
Respondent Wife
1. All previous property orders are hereby discharged.
2. The second and third respondents’ applications be dismissed.
3. Within 7 days from the date of these Orders, the second and third Respondents do all
things necessary to withdraw the caveat (dealing 3000278) lodged over the property
situate at and known as 11 Stutchbury Street, Page in the Australian Capital Territory,
being the whole of the land more particularly described in Certificate of Title Volume
318 Folio 13 Edition 9 (“the Page property”).
Payment
4. Within 60 days of the making of these orders, the Husband pay to the Wife the sum of
$404,500 (being 70% of the net value in the parties’ property pool taking into account
the Orders provided below) (‘the Date’ and ‘the Payment’, respectively).
5. Contemporaneously with the Payment:
(a) The Wife do all acts and things necessary to transfer to the Husband, at the
Husband’s expense, all of her interest in the property situate at and known the

41 Husband’s Initiating Application filed 3 September 2018.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 51
property situate at and known as 11 Stutchbury Street, Page in the Australian
Capital Territory, being the whole of the land more particularly described in
Certificate of Title Volume 318 Folio 13 Edition 9 (“the Page Property”).
(b) The Husband do all acts and things necessary to cause the joint loan account to
the ANZ Bank loan account number x2035 in the names of Lei Xia and Feng
Qiu (“the Page loan”) to be refinanced into his sole name with a financial
institution of his choosing and to payout the Page loan in full;
(c) The parties do all acts and things necessary to enable ANZ Bank to discharge
mortgage dealing 2026556 securing the Page loan over the Page property;
(d) The husband indemnify the wife against all payments and liability pursuant to
any mortgage or other encumbrance secured over the Page Property and all
apportionable rates, taxes and outgoings of or with respect to the Page Property
of whatsoever nature and kind.

On Default of the Payment
6. In the event that the whole of the Payment has not been made by the Date, or the
husband has not refinanced the mortgage secured over the Page Property into his sole
name then:
(a) The wife be appointed the sole trustee for the sale of the Page property; and
(b) In her capacity as the sole trustee for the sale of the Page property, the wife do
all acts and things and sign all documents and do all things as may be required
to forthwith place the Page Property on the market for sale altogether out of
Court (‘the Sale’) and upon completion of the Sale, the proceeds of the sale be
applied as follows:
(i) First, to pay all costs, commissions and expenses of the Sale;
(ii) Second, to discharge any encumbrance affecting the Real Property;
(iii) Third, so much of the balance of the Payment then outstanding together
with interest at the Family Law Rules penalty interest rate to the wife;
and
(iv) The balance to the husband.

Pending the Payment
7. Pending the Payment or the Sale:

Xia & Qiu (No 6) [2024] FedCFamC1F 8 52
(a) The husband have the sole right to occupy the Page Property and during such
right of occupation the husband pay all instalments pursuant to any mortgage
and all rates, taxes and like apportionable outgoings over the Page Property as
and when they fall due; and
(b) Save to give effect to these orders, neither party encumber the Page Property
without the consent in writing of the other party.

Crace Property
8. Within 28 days from the date of these Orders:
(a) The Husband do all acts and things necessary to transfer to the Wife, at the
Wife’s expense, all of his interest in the property situate at and known as 50
Samaria Street, Crace in the Australian Capital Territory, being the whole of the
land more particularly described in Certificate of Title Volume 2096 Folio 100
Edition 5 (“the Crace property”).
9. Pending the transfer of the Crace property:
(a) The Wife have the sole right to occupy the Crace property;
(b) The Wife indemnify the Husband against all outgoings with respect to the Crace
property, including but not limited to repayments for rates, land tax and the like;
and
(c) Neither party shall mortgage or otherwise offer the Crace property for security
other than for the purposes of compliance with these Orders.

QF and XL Family Trust
10. Within 14 days from the date of these Orders, the Wife shall, at the Husband’s expense,
do all things necessary to:
(a) Relinquish all beneficial entitlements and irrevocably disclaim her interest as a
beneficiary of the QF and XL Family Trust (“the Trust”);
(b) Transfer to the Husband all of her right, title and interest in the following:
(i) Any loan accounts in the Trust;
(ii) Allocated but undistributed profits in the Trust;
(iii) Undistributed profits in the Trust; and
(iv) Any other liability owed by the Trust to the Wife.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 53
11. The Husband indemnify, and keep the Wife indemnified with respect to any liability of
the Trust, including any taxation liability (past, present or future).
DN & EX Pty Ltd
12. Within 14 days from the date of these Orders, the parties do all acts and things to wind
up DN & Ex Pty Ltd (ACN 600 393 833) at the parties’ joint expense.
WNA Group Pty Ltd
13. The Husband and Wife as beneficial owners of the shares in WNA Group Pty Ltd do
all acts and things necessary to sell the business known as The Creamery & Co (owned
and operated by the company WNA Group Pty Ltd ABN 82 612 338 253), including

instructing and securing the cooperation of Mr Wende Qiu (as the director and non-
beneficial shareholder of WNA Holdings Pty Ltd).

14. That for the purpose of the sale referred to in Order 24 the Wife be appointed as the
sole Trustee of the sale.
15. Upon settlement of the sale of The Creamery & Co, the Wife as Trustee of the sale,
cause the net proceeds of sale to be applied as follows:
(a) 70% to the wife
(b) 30% to the husband
Other
16. The wife retain the following assets for her sole use and benefit:
(a) The Crace property;
(b) Her interest in AWAQ Pty Ltd (trading as the Coffee Club Majura Park);
(c) Monies in all bank accounts in her sole name;
(d) Furniture and household contents in her name, possession and control; and
(e) Her superannuation with Intrust Superannuation.
17. Husband retain the following assets for his sole use and benefit:
(a) His Toyota Kluger;
(b) His interest in WNA Construction Pty Ltd (if any), PK & EX Ventures Pty Ltd,
Denman Terraces Pty Ltd, Denman Units Pty Ltd, Solid Constructions Pty Ltd;
(c) His interest in QF and XL Family Trust;

Xia & Qiu (No 6) [2024] FedCFamC1F 8 54
(d) Monies in all bank accounts in his sole name;
(e) Furniture and household contents in his name, possession and control; and
(f) His superannuation with Essential Super.
18. The wife be solely responsible for and indemnify the husband to any liabilities
associated with:
(a) The Crace property;
(b) AWAQ Pty Ltd;
(c) Any loans owed to the wife’s parents; and
(d) Any credit card liability in her name.
19. The husband be solely responsible for and indemnify the wife to any liabilities
associated with:
(a) WNA Construction Pty Ltd, PK & EX Ventures Pty Ltd, Denman Terraces Pty
Ltd, Denman Units Pty Ltd, Solid Constructions Pty Ltd;
(b) Any loans owed to the husband’s parents; and
(c) Any credit card liability in his name.
20. That save as otherwise provided for in these Orders:
(a) Each party shall be solely entitled to the exclusion of the other to all property
(including chose-in-action) in the possession of such party as at the date of these
Orders;
(b) Monies standing to the credit of a party in any bank account is to become the
property of the party in whose name the account is registered;
(c) Each party shall forego any claim or claims the party may have to any
superannuation, long service leave, redundancy, retirement, retrenchment and
like benefits belonging to, or earned by, the other;
(d) Insurance policies remain the sole property of the owner named thereon;
(e) Each party shall be solely liable for, an indemnify the other against any liability
encumbering any item of property to which that party is entitled pursuant to
these Orders; and
(f) Any joint tenancy of the parties in any real or personal property is hereby
expressly severed.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 55
21. If either party refuses, fails or neglects to execute any document necessary to put these
Orders into effect seven (7) days after being requested to do so, and any such refusal,
pursuant to Section 106A of the Family Law Act 1975 (Cth), the Registrar of the Federal
Circuit and Family Court at Canberra be and is hereby appointed to execute such
document in the name of such party, and the party in default is ordered to pay all
reasonable costs incurred by the non-defaulting party for the purpose of enforcing these
Orders.
22. Liberty to the Wife to apply with respect to implementation of these Orders upon seven
(7) days’ written notice.
23. There be directions as to any application for costs.
Second and Third Respondents
The Page Property
1. That pursuant to section 78 of the Family Law Act 1975, a declaration be made that the
Huband and the Wife hold (and have at all times held) their legal interest in the Page
Property on implied trust and/or constructive trust for the Second Respondent and Third
Respondent and accordingly, the Second Respondent and Third Respondent are
beneficially entitled to the whole of the Page Property.
2. That pursuant to section 78 of the Family Law Act 1975, the property described in
Certificate of Title Volume 318 Folio 13 Edition 9 located at Section 23 Block 13 on
Deposited Plan 2123, known as 11 Stutchbury Street, Page in the Australian Capital
Territory (“the Page property”) be declared to be property of the Second Respondent
and Third Respondent and simultaneously:
(a) That the Wife and the Husband do all acts and things and sign all necessary
documents to transfer to the Second Respondent and Third Respondent, at the
cost of the Husband and Wife, the whole of their right, title and interest in the
Page property;
(b) The Wife and Husband cause the home loan secured by mortgage over the Page
property (“the Page Mortgage”) to be paid and the mortgage discharged at the
cost of the Husband and Wife;

3. That all furniture, chattel and personal possessions in the Page property be declared to
be property of the Second Respondent and Third Respondent.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 56
Loans
4. A declaration that the funds provided by the Second Respondent and Third Respondent
to the Husband and the Wife and set out below and totalling $694,916.00 are loaned
funds:
(a) $319,916.00 – for funds loaned to the Husband and Wife for business expenses,
maintaining and constructing the Husband and Wife’s former matrimonial
home at 50 Samaria Street, Crace in the Australian Capital Territory (“the Crace
property”) and purchasing items for their businesses;
(b) $375,000.00 – for payments that the Second Respondent and Third Respondent
have made on behalf of the Husband and Wife for loan repayments on the
Husband and Wife’s loans to Xiamen International Bank Shanghai Branch;
5. That the Husband and Wife repay a total of $694,916.00 or such other amount
determined by this Honourable Court, to the Second Respondent and Third Respondent.
Investments
6. That the Husband and Wife pay to the Second Respondent and Third Respondent the
total of $120,000 being a return of their initial investment / advance to DN & EX Pty
Ltd (t/as The Coffee Club Majura Park) and Akiross Pty Ltd (t/a The Coffee Club
Gungahlin).
7. The Husband and Wife pay the Second Respondent and Third Respondent an amount
referable to the profits in DN & EX Pty Ltd (t/as The Coffee Club Majura Park) and
Akiross Pty Ltd (t/as The Coffee Club Gungahlin) based upon their initial investment /
advance to DN & EX Pty Ltd and Akiross Pty Ltd.
8. That upon the payments pursuant relief claimed at paragraphs 6 and 7, the Second
Respondent and Third Respondent disclaim any right or interest in DN & EX Pty Ltd
(t/as The Coffee Club Majura Park) and Akiross Pty Ltd (t/a The Coffee Club
Gungahlin).
Further declarations
9. A declaration that the Second Respondent has been the sole director and secretary of
WNA Group Pty Ltd at all times since 11 May 2016.
10. A declaration that the appointment of the Husband as secretary and director of WNA
Group Pty Ltd on 1 November 2016 was not valid.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 57
11. A declaration that the appointment of the Husband as alternate director of WNA Group
Pty Ltd on 3 January 2017 was not valid.
12. A declaration that the appointment of the Fourth Respondent as an alternate director of
WNA Group Pty Ltd on an unknown date prior to 19 January 2017 was not valid.
13. A declaration that the appointment of the Fourth Respondent as a director of WNA
Group Pty Ltd on 19 January 2017 was not valid.
14. That the Fourth Respondent do all acts and sign all documents necessary to re-instate
the appointment of the Second Respondent, as the sole director and secretary of WNA
Group Pty Ltd.
15. That the Fourth Respondent, Husband and Wife indemnify the Second Respondent and
WNA Group Pty Ltd against any liability of and incidental their actions during the
period where Wen De Qiu and/or the Husband and/or the Wife purported to be or acted
as a director, officeholder or agent of WNA Group Pty Ltd.
16. A declaration that at all times since 1 November 2016, the Second Respondent has been
the owner of 100 shares in WNA Group Pty Ltd.
17. A declaration that the transfer of shares from the Second Respondent to the Husband
on 1 November 2016 was not valid.
18. A declaration that the transfer of shares from the Husband to WNA Holdings Pty Ltd
on 19 January 2017 was not valid.
19. That the Fourth Respondent, as a Director of WNA Holdings Pty Ltd, do all acts and
sign all documents necessary to transfer to the Second Respondent to transfer to the
Second Respondent all shares in the WNA Group Pty Ltd held by WNA Holdings Pty
Ltd.
20. That pursuant to s 175(1) of the Corporations Act 2001 (Cth), that WNA Group Pty
Ltd’s register of members be corrected, so as to give effect to the above relief sought in
paragraphs 9 to 19 hereof.
21. That pursuant to s 175(3) of the Corporations Act 2001 (Cth), that WNA Group Pty Ltd
lodge a notice of the correction with the Australian Securities and Investments
Commission to record or reflect the above relief sought in paragraphs 9 to 19 hereof.
22. That the Applicant and/or the First Respondent and/ the Fourth Respondent pay the
Second and Third Respondent’s costs of and incidental to this Response.
23. Such further or other orders this Honourable Court deems appropriate.

Xia & Qiu (No 6) [2024] FedCFamC1F 8 58

SCHEDULE OF PARTIES

CAC 1782 of 2018

Respondents
Fourth Respondent: WEN DE QIU, WNA GROUP PTY LTD AND WNA

HOLDINGS PTY LTD