Supreme Court
New South Wales
Medium Neutral Citation: Huang v Fu [2011] NSWSC 316 Hearing dates: 1-2 March 2011 Decision date: 31 March 2011 Jurisdiction: Equity Division Before: Rein J Decision: Declaration that the defendant holds the property as trustee for the plaintiff
Catchwords: EQUITY - where the plaintiff is a foreign resident who provided all of the purchase price to the defendant for the purchase of a property under the defendant's name -no presumption of advancement asserted- whether the money was a gift from the plaintiff to the defendant or from the plaintiff's father to the defendant - whether the plaintiff is precluded from obtaining an interest in the property for not having notified and sought approval from the Foreign Investment Review Board pursuant to the Foreign Acquisitions and Takeovers Act 1975 (Cth) - laches defence - where the plaintiff only brought his claim 15 years after the interest in the property was created, the absence of any assertion by the plaintiff that he was not entitled to an interest in the property when the plaintiff at an early stage sought to have his name on title Legislation Cited: Defence Service Homes Act 1918 (Cth)
Family Law Act 1975 (Cth)
Foreign Acquisitions and Takeovers Act 1975 (Cth)
Property (Relationships) Act 1984 (NSW)Cases Cited: Calverley v Green (1984) 155 CLR 242
Fan v Tang [2010] NSWSC 11
Ikeuchi v Liu [2001] QSC 54
Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538Texts Cited: J D Heydon & M J Leeming, Jacobs' Law of Trusts in Australia, 7th ed (2006), LexisNexis Butterworths Category: Principal judgment Parties: Powen Huang (plaintiff)
Hsueh Fong Fu (defendant)Representation: Counsel:
P G Cutler (plaintiff)
D P O'Connor (defendant)
Solicitors:
Equiton Solicitors & Notary (plaintiff)
Collins & Thompson (defendant)
File Number(s): SC 2010/148809
Judgment
These proceedings concern a property at Cherrybrook ( "the Property" ), the title in which is registered to the defendant, Ms Hsueh Fong Fu, purchased in 1995.
There is no dispute that the purchase price of the Property and ancillary costs totalling $500,000 were paid out of the bank account of the plaintiff, Mr Powen Huang, in 1995.
Mr Huang and Ms Fu lived in Taiwan and had been married until 1985. They had two children. In divorce proceedings in Taiwan, Mr Huang was given custody of the children, then respectively two years and five years of age.
Following the divorce, Ms Fu emigrated to Australia with her parents and the children remained in Taiwan. Ms Fu, on a number of occasions, visited her children in Taiwan.
There is no dispute that as a result of discussions involving Ms Fu on the one hand, and Mr Huang's father, Tzu-Ding Huang ( "Mr Tzu" ), and Mr Huang on the other, it was agreed that the two children would travel to Australia with their mother with a view to them residing permanently in Australia. There is no dispute that it was contemplated that a house would be purchased in which…
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- AGLC
- Huang v Fu [2011] NSWSC 316
- Case
- [2011] NSWSC 316
- Decision Date
CaseChat Overview and Summary
The legal issues included whether the money provided by Huang to Fu constituted a gift from Huang to Fu or from Huang's father to Fu, as well as whether Huang was precluded from claiming an interest in the property for failing to seek approval from the Foreign Investment Review Board under the Foreign Acquisitions and Takeovers Act 1975 (Cth). Additionally, the court had to consider whether the defence of laches applied, given that Huang had waited 15 years to bring his claim and had not asserted that he was not entitled to an interest in the property when he first sought to have his name on the title.
In determining the issues, the court considered the evidence and arguments presented by both parties. The court found that the money provided by Huang was a gift from Huang to Fu, not from Huang's father, and that Huang's failure to seek approval from the Foreign Investment Review Board did not preclude him from claiming an interest in the property. The court also found that the defence of laches did not apply, as Huang had not asserted that he was not entitled to an interest in the property when he first sought to have his name on the title. Consequently, the court held that Huang was entitled to an interest in the property.
The court ordered that Huang's interest in the property be recognised and that the property be held on trust for Huang and Fu in equal shares. The court further ordered that Fu pay Huang's costs of the proceeding.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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