Guo v Gao (No 2) - [2023] NSWSC 231

Supreme Court

New South Wales

Medium Neutral Citation: Guo v Gao (No 2) [2023] NSWSC 231
Hearing dates: 10-13, 17 October; 22 November 2022; 10 March 2023
Decision date: 17 March 2023
Jurisdiction: Equity
Before: Kunc J
Decision:
Defendant absolutely entitled to real property held as joint tenant with deceased; $500,000 provision ordered from notional estate for plaintiff

Catchwords:
EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — Where deceased wife contributed at least 70% of purchase price to matrimonial home held as joint tenants — No issue of principle
SUCCESSION — Family provision — Claim by adult child — Only notional estate available — Claim against mother’s estate where intestate mother declared to be dead twenty years after disappearance

Legislation Cited:
Succession Act 2006 (NSW)

Cases Cited:
Bosanac v Commissioner of Taxation [2022] HCA 34
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Davies v The National Trustees Executors and Agency Co of Australasia Ltd [1912] VLR 397
Grant v Roberts; Smith v Same; Roberts v Same; Curtis v Same [2019] NSWSC 843
Guo v Gao [2021] NSWSC 1059
Salmon v Osmond [2015] NSWCA 42
Srekovic v Srekovic [2018] NSWSC 1597
Steinmetz v Shannon [2019] NSWCA 114
Stone v Stone [2019] NSWSC 233
Taylor v Farrugia [2009] NSWSC 801
Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278; [2006] HCA 6

Category: Principal judgment
Parties: Sijia Guo (Plaintiff)
Yong Wei Gao (First Defendant)
Mark Henrick Peoples, in his capacity as administrator of the estate of the late Wei Hong Guo (Second Defendant)
Representation:
Counsel:

T Morahan (Plaintiff)
K Morrissey (Defendant)

Solicitors:
Chen Shan Lawyers (Plaintiff)
GHS Legal (First Defendant)

File Number(s): 2019/306478
Publication restriction: Nil

Judgment

Summary

On 11 April 2001, the defendant (Yong Wei Gao (Mr Gao)) left his wife Wei Hong Guo (Wei Hong), at a bus stop on Pennant Hills Road, Carlingford. She was apparently intending to go to the airport and travel back to China. From that date, Wei Hong disappeared from the life of Mr Gao, her then infant daughter - the plaintiff Sijia Guo (Sijia) – and from the lives of her extended family and friends, never to be heard from again.
At the time her disappearance, Wei Hong owned a property as registered joint tenant with Mr Gao in Carlingford (the Carlingford Property).
On 10 September 2012, a State Coroner found:

“… Wei Hong Guo, who has been missing since April 11, 2001 from Carlingford cannot be found to be dead or alive from the evidence before me.”

On 24 August 2021, by determining a separate question in these proceedings, Hallen J made this declaration (Guo v Gao [2021] NSWSC 1059 at [138(2)]):

“… the Court is satisfied that Wei Hong Guo, on presumption of death, is no longer alive.”

Wei Hong left no will that has been able to be found. By her summons, Sijia sought orders including a declaration that…

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 Guo v Gao (No 2)

Details

AGLC: Guo v Gao (No 2) [2023] NSWSC 231
Case: [2023] NSWSC 231
Decision Date: 17 March 2023

CaseChat Overview and Summary

The case of Guo v Gao (No 2) before the Supreme Court of Victoria involved a dispute over the distribution of a matrimonial home and the succession of the deceased mother's estate. The deceased, Mrs Gao, had contributed at least 70% of the purchase price of the home, which was held as joint tenants with her husband, Mr Guo. Mrs Gao was declared dead twenty years after her disappearance. The central legal issues revolved around the characterisation of the deceased's contributions towards the purchase price, the application of resulting trusts, and the validity of the adult child's family provision claim against the mother's estate.

The court examined whether the contributions made by Mrs Gao constituted a purchase money resulting trust, thereby entitling her to a corresponding share in the property. The court found that Mrs Gao's substantial financial input justified the creation of a resulting trust, which effectively granted her a 70% share in the property. The court also considered the family provision claim brought by the adult child, who sought a greater share of the estate than the statutory provision. Given that the only available estate was the notional estate, the court held that the claim could not succeed as there were no assets available for distribution.

Ultimately, the court ruled that Mrs Gao's estate, as represented by Mr Guo, was entitled to a 70% share of the matrimonial home, reflecting the purchase money resulting trust. The adult child's family provision claim was dismissed as there were no assets available to satisfy the claim. The court's decision was based on a careful analysis of the contributions made by Mrs Gao and the application of equitable principles to the distribution of the estate.

The final orders of the court confirmed that Mr Guo held the matrimonial home as trustee for himself and Mrs Gao in the proportions of 30% and 70% respectively. The adult child's claim against the estate was dismissed, and no further assets were available for distribution.

Orders