Chao v Chao (No 3)

[2008] NSWSC 1166

CITATION:	Chao v Chao (No 3) [2008] NSWSC 1166
HEARING DATE(S):	8-15 May; 26 August 2008
JUDGMENT DATE :	4 November 2008
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Brereton J
DECISION:	Plaintiff is beneficial owner of house, pursuant to common intention trust, or alternatively pursuant to resulting trust. Plaintiff is liable to account to defendant for unreimbursed balance of his expenditure, charged on property. $190,000 drawdown was transaction of defendant exclusively for his account. Extension of home loan for Ferrari was transaction of defendant exclusively for his account, to which plaintiff did not consent. Defendant is responsible to exclusion of plaintiff for whole of amount presently secured, and is bound to indemnify plaintiff in respect of, and procure discharge of, mortgage. 1. Declare that defendant holds property upon trust for plaintiff, but subject to charge securing to defendant principal sum of $140,896.77 and interest at 10% per annum from 1 November 1999 which as at this date amounts to $126,807.09, totalling $267,703.86. 2. Declare that defendant is bound to indemnify and keep indemnified and exonerate plaintiff and property in respect of all liability under mortgage. 3. Order that within 42 days (or such further time as parties may agree): 3.1 plaintiff pay defendant said sum of $267,703.86; 3.2 defendant procure discharge of Mortgage and execute and deliver to plaintiff transfer in registrable form to her of all his right title and interest in and to property, unencumbered. 4. Reserve liberty to apply. 5. Order that defendant pay plaintiff’s costs.
CATCHWORDS:	TRUSTS – EXPRESS TRUSTS – common intention – RESULTING TRUSTS – where house purchased in name of defendant brother who borrows part of purchase price – where plaintiff sister provides deposit, stamp duty and part of the purchase price – where plaintiff resided in property rent-free and paid rates, maintenance, repairs and improvements – where defendant paid land tax – where defendant made statutory declaration in aid of plaintiff’s residency application that plaintiff was the owner – where plaintiff repaid mortgage principal – whether there was a common intention that the house was to be purchased on trust for the plaintiff – whether presumption of resulting trust resulted – whether plaintiff had reimbursed the defendant’s expenditure – whether plaintiff or defendant liable for further advance on home loan account to pay $190,000 to parents – where defendant drew on home loan account to purchase a new Ferrari – whether plaintiff consented to the defendant’s purchase of Ferrari
LEGISLATION CITED:	(CTH) Statutory Declarations Act 1959
CATEGORY:	Principal judgment
CASES CITED:	Bertei v Feher [2000] WASCA 165 Bloch v Bloch (1981) 180 CLR 390 Brown v Brown (1993) 31 NSWLR 582 Calverley v Green (1984) 155 CLR 242 Charles Marshall Pty Ltd v Grimsely (1956) 95 CLR 353 Currie v Hamilton [1984] 1 NSWLR 687 Dinsdale bht Protective Commissioner v Arthur [2006] NSWSC 809 Napier v Public Trustee (1980) 32 ALR 153 Ryan v Dries [2002] NSWCA 3 Shephard v Cartwright [1955] AC 431 Stockbridge v Lupton (NSWSC, McLelland J, 14…