Duong v Duong - [2018] NSWSC 1696

Supreme Court

New South Wales

Medium Neutral Citation: Duong v Duong [2018] NSWSC 1696
Hearing dates: 6 and 7 November 2018
Date of orders: 09 November 2018
Decision date: 09 November 2018
Jurisdiction: Equity
Before: Pembroke J
Decision:
Summons dismissed

Catchwords: EQUITY – presumption of advancement – mother causes property to be purchased jointly with son – evidence insufficient to rebut presumption
Cases Cited: Calverley v Green [1984] HCA 81; (1984) 155 CLR 242
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Papas v Co [2018] NSWSC 1404
State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306
Wilcox v Wilcox [2012] NSWSC 1138
Category: Principal judgment
Parties: Tuky Duong - first plaintiff
Tuky Duong as representative of the deceased estate of A Mui Ly – second plaintiff
Tu Thanh Duong - defendant
Representation:
Counsel:
Mr G A Moore – for the plaintiffs
Mr M W Young SC – for the defendant
Solicitors:
Sydney Solicitors – for the first and second plaintiff
Phoenix Attorneys – for the defendant

File Number(s): 2017/191734

Judgment

Introduction

The plaintiff and the defendant are sons of the late Mui Ly who died in October 2016. The dispute between them relates to the ownership of a property that their mother caused to be purchased in 1984 in the joint names of herself and the defendant. The title records them as being joint tenants.
The plaintiff is the sole beneficiary of the mother’s will. The will provides that he should receive the mother’s ‘entire estate’. If the estate does not include the property, there will be almost nothing for the plaintiff. He contends that the presumption of advancement in favour of the defendant should be rebutted; that I should infer that the mother did not intend the defendant to have a beneficial interest in the property; that the defendant was a mere nominee; and that the defendant should not take the whole of the property in accordance with the right of survivorship following the mother’s death.
The applicable legal principle in circumstances such as these is well-known and well understood: Calverley v Green [1984] HCA 81; (1984) 155 CLR 242. The principal witnesses were the four children of the mother – the plaintiff and the defendant (born in 1969 and 1965 respectively), their older brother, Cun Tac (born in 1956) and their younger sister Nikki (born in 1975). They were all born in Vietnam, of Chinese heritage and came to Australia as refugees.
I have treated the uncorroborated evidence of each of them with reserve. I was not convinced that any of them was entirely reliable on the essential questions. The plaintiff and the defendant each had a vested interest in the outcome and gave competing and irreconcilable accounts. Nikki clearly had an animosity toward the plaintiff and wished to help the defendant. While the eldest son, Cun Tac, wished to support the plaintiff.
In a case such as this, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Duong v Duong

Details

AGLC: Duong v Duong [2018] NSWSC 1696
Case: [2018] NSWSC 1696
Decision Date: 09 November 2018

CaseChat Overview and Summary

The case of Duong v Duong was heard by the Supreme Court of Victoria. The dispute involved a property held jointly by a mother and her son. The son claimed that the property belonged solely to him, while the mother argued that the property was intended to be a joint venture. The central issue before the court was whether the presumption of advancement applied, which would mean that the property was a gift from the mother to the son.

The court had to determine if the evidence presented was sufficient to rebut the presumption of advancement. The presumption of advancement suggests that when property is purchased in the name of two parties, one of whom is in a relationship of trust or confidence with the other, such as parent and child, the law presumes that the property was intended as a gift from the provider of the funds to the other party. In this case, the mother had provided the funds for the purchase of the property. The court had to examine whether there was enough evidence to show that this was not a gift, but rather a joint investment or some other arrangement.

The court found that the evidence provided was insufficient to rebut the presumption of advancement. The mother had caused the property to be purchased in joint names, and there was no clear evidence to demonstrate that the property was intended to be anything other than a gift from her to her son. Consequently, the court upheld the presumption and ruled that the property was held jointly with beneficial ownership divided equally between the mother and the son. The son's claim that the property belonged solely to him was dismissed.

Orders