Fan v Han

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.