Fan v Han - [2016] NSWSC 1488

Supreme Court

New South Wales

Medium Neutral Citation: Fan v Han [2016] NSWSC 1488
Hearing dates: 21-23 September 2016
Decision date: 25 October 2016
Jurisdiction: Equity
Before: White J
Decision:
Direct counsel for the plaintiff to bring in short minutes of order in accordance with these reasons.

Catchwords: CONTRACTS — Plaintiff contends that he and the defendant made an oral agreement following their divorce that the defendant would transfer her interest in the family home to the plaintiff on the plaintiff paying to the defendant an agreed sum of money — Plaintiff asserts that he performed his part of the agreement by borrowing funds to purchase a unit which was acquired solely in the name of the defendant — Defendant did not transfer her share of the family home to the plaintiff — Whether the defendant agreed to transfer her interest in family home to the plaintiff — Agreement that defendant would transfer her interest in family home to the plaintiff not established — Defendant willing to allow plaintiff to acquire a unit on her behalf — Defendant understood unit was not intended as a gift — Alleged agreement unenforceable by virtue of Conveyancing Act 1919 (NSW) s 54A — No acts of part-performance that would displace the operation of s 54A of the Conveyancing Act — Whether alleged agreement contrary to public interest as a binding agreement for the division of matrimonial assets — Alleged agreement not a financial agreement within s 90D of the Family Law Act — Not contrary to public policy
EQUITY — Trusts and Trustees — Implied trusts — Resulting trusts — When arising — Plaintiff intended the defendant to have full beneficial ownership of a purchased unit — Plaintiff’s intention conditioned on becoming the full beneficial owner of the family home — Presumption that the beneficial ownership of property is held in the proportions in which the parties contributed to the purchase money not rebutted as condition of plaintiff’s intention that the defendant have full beneficial ownership not realised — Plaintiff beneficially entitled to a share of the purchased unit proportionate to his contribution to the purchase price
Legislation Cited: Conveyancing Act 1919 (NSW)
Family Law Act 1975 (Cth)
Limitation Act 1969 (NSW)
Cases Cited: Baloglow v Konstantinidis [2001] NSWCA 451; (2001) 11 BPR 20,721
Callow v Rupchev [2009] NSWCA 148; (2009) 14 BPR 27,533
Calverley v Green (1984) 155 CLR 242
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Currie v Hamilton [1984] 1 NSWLR 687
Forgeard v Shanahan (1994) 35 NSWLR 206
Ingram v Ingram [1941] VLR 95
Regent v Millett (1976) 133 CLR 679
Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,497
Senior v Anderson (2011) 250 FLR 444
Shephard v Cartwright [1955] AC 431
Sivritas v Sivritas (2008) 23 VR 349
Category: Principal judgment
Parties: Yi Jun Fan (Plaintiff)
Rui Han (Defendant)
Representation:
Counsel:
A Macauley (Plaintiff)
A Gruzman (Defendant)
Solicitors:
Du & Associates Lawyers (Plaintiff)
Di Lizio & Associates…

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 Fan v Han

Details

AGLC: Fan v Han [2016] NSWSC 1488
Case: [2016] NSWSC 1488
Decision Date: 25 October 2016

CaseChat Overview and Summary

In the case of Fan v Han, the plaintiff sought to establish that an oral agreement existed between himself and the defendant, following their divorce, whereby the defendant would transfer her interest in the family home to the plaintiff upon the plaintiff paying an agreed sum of money. The plaintiff argued that he had fulfilled his part of the agreement by borrowing funds to purchase a unit, which was acquired solely in the defendant's name. The defendant, however, did not transfer her share of the family home to the plaintiff.

The legal issues before the court were whether there was a binding agreement for the transfer of the defendant's interest in the family home and whether the alleged agreement was enforceable under the Conveyancing Act 1919 (NSW) s 54A. Additionally, the court considered whether the alleged agreement was contrary to public policy as a binding agreement for the division of matrimonial assets under the Family Law Act 1975 (Cth) s 90D. The court also examined whether an implied trust arose in relation to the unit purchased on behalf of the defendant.

The court found that the plaintiff's evidence did not establish an agreement between the parties that the defendant would transfer her interest in the family home to the plaintiff. Although the defendant was willing to allow the plaintiff to acquire a unit on her behalf, she understood that the unit was not intended as a gift. Consequently, the alleged agreement was unenforceable under s 54A of the Conveyancing Act. There were no acts of part-performance that would displace the operation of s 54A. The court further determined that the alleged agreement was not contrary to public policy as it did not constitute a financial agreement within s 90D of the Family Law Act. Regarding the unit, the court concluded that the plaintiff was beneficially entitled to a share proportionate to his contribution to the purchase price, as the condition for the defendant to have full beneficial ownership of the property was not realised.

Orders