Le v Le - [2023] NSWSC 622

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Le v Le [2023] NSWSC 622
Hearing dates: 22-29 May 2023
Date of orders: 13 June 2023
Decision date: 13 June 2023
Jurisdiction: Equity
Before: Darke J
Decision:
Proceedings ordered to be dismissed, with costs. Order made for plaintiff to withdraw caveat.

Catchwords:
EQUITY – trusts and trustees – constructive trusts – common intention – where plaintiff alleges existence of oral agreements whereby his now deceased step-father agreed to give him $100,000 to assist with the purchase of a property and agreed to purchase the property to be held on trust for him – alleged oral agreements not made out on the balance of probabilities – common intention constructive trust not established – claim dismissed

Legislation Cited:
Evidence Act 1995 (NSW), ss 128, 140

Cases Cited:
Bovaird v Frost [2009] NSWSC 337
Plunkett v Bull (1915) 19 CLR 544
Shepherd v Doolan [2005] NSWSC 42
Watson v Foxman (1995) 49 NSWLR 315

Category: Principal judgment
Parties: Vince Le (Plaintiff)
Thi Thon Le (First Defendant)
Van Nem Nguyen (Second Defendant)
Representation:
Counsel:
Mr P Lonergan (Plaintiff)
Mr J R B Pearson (First Defendant)
Solicitors:
Kammoun Sukari Lawyers (Plaintiff)
Quy Lawyers (First Defendant)

File Number(s): 2021/00039719
Publication restriction: None

Judgment

Introduction

This case concerns the ownership of a property at 20 Garden Street, Mount Pritchard (“the Property”). The plaintiff, Vince Le (sometimes known simply as Tam), seeks a declaration that the first defendant, Thi Thon Le, holds it on trust for him. The first defendant is the plaintiff’s mother. She is also the administrator of the estate of her late husband, Cong Thanh Huynh who died on 1 April 2018. He remains the registered proprietor of the Property. Cong Thanh Huynh will henceforth be referred to as “the deceased”. The deceased was the step-father of the plaintiff.
The Property was acquired by the deceased on about 31 August 2012. The plaintiff claims that this occurred pursuant to two agreements he made in 2012 with the deceased whereby the deceased:

agreed to give $100,000 to the plaintiff to assist him in purchasing a property; and

agreed to purchase the Property, to be held in the deceased’s name, but beneficially owned by the plaintiff who would make all repayments due pursuant to a mortgage over the Property, and pay all outgoings and other liabilities in respect of the Property.

The alleged agreements are oral agreements said to have been made in early 2012 and about mid-2012 respectively.
The plaintiff commenced the proceedings on 11 February 2021 by the filing of a Summons. Orders were made on 12 February 2021 and 11 March 2021 extending the operation of a caveat (AQ 418410) the plaintiff had lodged against the title to the Property in October 2020. The latter order extended the operation of the caveat until further order.
The plaintiff filed a Statement of Claim on 8 April 2021, and the first defendant filed a Defence on 22 April 2021. The plaintiff filed a further Statement…

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 Le v Le

Details

AGLC: Le v Le [2023] NSWSC 622
Case: [2023] NSWSC 622
Decision Date: 13 June 2023

CaseChat Overview and Summary

The plaintiff, Le, sought to establish a constructive trust over a property in dispute with the defendant, Le, his step-father's widow. The plaintiff alleged that he had an oral agreement with his deceased step-father whereby the latter agreed to give him $100,000 to assist with the purchase of the property and to purchase the property to be held on trust for him. The deceased step-father had passed away intestate, leaving his estate to his widow, the defendant. The plaintiff claimed that the alleged oral agreements were made on the balance of probabilities and that a common intention constructive trust should be imposed on the property.

The court was required to determine whether the plaintiff had established the existence of the alleged oral agreements on the balance of probabilities and whether, if such agreements were found to exist, a common intention constructive trust should be imposed. The court considered the evidence provided by the plaintiff and found that the alleged oral agreements were not made out on the balance of probabilities. The court held that the plaintiff had not discharged the onus of proof and that the common intention constructive trust was not established. Consequently, the plaintiff's claim was dismissed.

The court did not make any further orders beyond dismissing the plaintiff's claim. The property remained in the ownership of the defendant, the widow of the deceased step-father. The court held that the plaintiff had failed to establish the existence of the alleged oral agreements and that, as a result, the common intention constructive trust could not be imposed. The court's decision was based on the evidence presented and the applicable legal principles governing constructive trusts.

Orders