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

1. 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.

2. 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:

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

2. 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.

3. The alleged agreements are oral agreements said to have been made in early 2012 and about mid-2012 respectively.

4. 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.

5. 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 of Claim on 9 June 2022, that deleted a claim for a family provision order under the Succession Act 2006 (NSW), and introduced new claims against a second defendant (Van Nem Nguyen). The claims against Van Nem Nguyen were resolved prior to the final hearing. For simplicity, the first defendant will henceforth be referred to as “the defendant”.

6. The plaintiff no longer presses two of the claims that are pleaded in the Statement of Claim. These are the claim in contract and the proprietary estoppel claim. Of the remaining claims, the principal one is that the Property is the subject of a common intention constructive trust (see Shepherd v Doolan [2005] NSWSC 42 at [30]-[40] per White J, as his Honour then was).

7. It is alleged that in or about mid-2012 the plaintiff and the deceased formed the common intention that:

(a)   the Property would be purchased for the Plaintiff;

(b)   the Deceased would:

(i)   obtain a loan and mortgage in his name; and

(ii)   put the Property in his name;

(c)   the Plaintiff would make the mortgage repayments, and pay other outgoings in relation to the Property;

(d)   the Property would be owned by the Plaintiff, and would be held by the Plaintiff in name only;

(e)   the Deceased would convey the Property to the Plaintiff upon request that he do so on the basis that he meet the costs.

8. It is further alleged that, in reliance upon the common intention, the plaintiff has acted to his detriment, including by undertaking renovation works at the Property, making payments sufficient to meet the payments due under the mortgage, paying rates and outgoings in respect of the Property, and maintaining and improving the Property. It is alleged that it would be unconscionable in all the circumstances for the defendant, as administrator of the deceased’s estate, to deny that the Property is held on trust for the plaintiff.

9. The plaintiff also claims, in the alternative to his principal claim, an equitable charge or a resulting trust. The former claim essentially rests upon the same facts as are alleged in support of the common intention constructive trust claim. The resulting trust claim is essentially based on the contention that the plaintiff contributed the sum of $100,000 towards the purchase of the Property.

10. The defendant denies all of the claims made against her. In short, she contends that the plaintiff has failed to establish, as matters of fact, the alleged agreements and common intention. She contends that the Property is held free of any interest of the plaintiff.

11. The central witnesses in the plaintiff’s case are the plaintiff himself, and his partner, Thi Viet Cuc Luu (often referred to as Stephanie Luu, or simply as Cuc). They claim to have been party to discussions with the deceased and the defendant in which oral agreements, concerning a gift of $100,000 to the plaintiff and a purchase of the Property for the plaintiff, are said to have been made. The defendant is the central witness in her case.

12. The alleged oral agreements are said to have been made more than a decade ago, with a person who is now deceased. It is perhaps trite, but nonetheless important, to observe, that claims based on evidence of arrangements made with persons who are now deceased must be closely scrutinised (see Plunkett v Bull (1915) 19 CLR 544 at 548-9 per Issacs J), although it remains the case that the ordinary civil standard of proof (as now embodied in s 140 of the Evidence Act 1995 (NSW)) applies (see Bovaird v Frost [2009] NSWSC 337 at [45] per Brereton J (as his Honour then was)). That the critical conversations occurred so long ago in itself calls for the evidence to be considered with particular care, given the fallibility of human memory (see Watson v Foxman (1995) 49 NSWLR 315 at 319 per McLelland CJ in Eq).

13. The presence or absence of corroborative evidence generally assumes importance in cases of this character. Contemporaneous documentary evidence that corroborates the plaintiff’s claims is lacking, although some later documents, including rental agreements and bank statements, are advanced as corroborative of the plaintiff’s case.

14. The plaintiff further relies upon the testimony of a number of witnesses who claim to recall events or conversations that are consistent with the existence of the alleged agreements, or the plaintiff’s account of events more broadly. Some of these witnesses gave evidence of statements made by the deceased. In many cases, these witnesses gave evidence of events that occurred several years ago. The principles referred to above apply to at least some degree in relation to the evidence given by each of those witnesses, just as they do in relation to the evidence given by the defendant and the witnesses she called in her case. I note that many of the witnesses gave evidence with the assistance of a Vietnamese language interpreter.

15. In addition, it should be noted that the testimony of a number of the witnesses suffered from particular difficulties which led me to conclude that little or no weight could be placed upon the evidence they gave.

16. I have of course endeavoured to consider and weigh the totality of the evidence (having regard to my assessments of each witness) in reaching my conclusions.

Assessment of the evidence

17. The plaintiff made four affidavits that were filed, being affidavits dated 9 February 2021, 21 February 2021, 10 March 2021 and 13 December 2021. The 9 February 2021 affidavit was not read. The affidavits of 21 February 2021 and 10 March 2021 do not deal with the detail of the alleged oral agreements. However, in his 13 December 2021 affidavit, the plaintiff deposed:

In about 2012, I approached my parents with my partner, Thi Viet Cuc Luu (Stephanie), about purchasing a property. Stephanie was pregnant with our second daughter, Ava, at the time. We had a conversation in Vietnamese in which we said:

Vince Le:   I want to purchase a property. I don't want to keep renting. I want to put my money towards a property that I will eventually keep.

Stephanie Luu:   I am pregnant right now. This will be good for our little family.

The deceased:   We are very happy that you want to buy a property for your family.

…

The deceased:   We would like to help you with the purchase by giving you money.

Thi Thon Le:      Yes, we will gift you $100,000.

18. The plaintiff deposed that in about late April 2012, he located and inspected a property in Links Avenue, Cabramatta, and made up his mind to purchase it. He deposed that around that time he met with a finance broker, Truong Sanh Ly (sometimes referred to as Deric Ly) for the purpose of obtaining a loan to purchase the Links Avenue property. He says that he told Mr Ly that he had “$100,000 from my parents and need a further $300,000 to $350,000” and that he was looking at a property. However, the plaintiff says that Mr Ly told him that he would not be able to get a loan due to a bad credit rating. The plaintiff says that Mr Ly suggested that a family member apply for a loan on his behalf.

19. The plaintiff then deposed that he spoke to his father, the deceased, as set out in paragraph 8 of his 9 February 2021 affidavit. As already mentioned, that affidavit was not read. However, in cross-examination, it emerged that the plaintiff had there deposed that the deceased had said:

Why don’t I put my name on the mortgage.

The plaintiff conceded that that evidence was inconsistent with his evidence that it was Mr Ly who came up with the idea of a family member applying for the home loan.

20. In any event, the plaintiff further deposed:

My father and I had further conversations around this time as to what was to occur in respect of the loan and the property. During those conversations, we said:

The deceased:   You will need to pay the loan back. Even though it will be in my name, you will need to pay for everything. I will not be responsible to pay anything.

Vince Le:   Yes, of course. I will pay the entire loan amount back. I will cover it all.

The deceased:   You will also need to pay all outgoings connected to the property, like water, electricity and council rates.

Vince Le:   Yes, I know that.

…

Vince Le:   I will eventually need you to transfer the property back to me.

The deceased:   Yes, I will transfer it to you as soon as you either pay back the entire amount or can get a loan in your name to pay what is outstanding under the mortgage. You will need to cover the costs of the transfer. I will not be liable for this.

Vince Le:   Yes, of course.

21. The plaintiff deposed that about a week or so later, he inspected the Links Avenue property again (with his partner, Stephanie Luu), and on 15 May 2012 his father, on his behalf, entered into a contract to purchase the property for $450,000. The plaintiff says that he (the plaintiff) paid a holding deposit of $1,000, and that his father, on his behalf, paid a further $44,000 as the balance of the deposit.

22. The plaintiff deposed that he changed his mind about the property, and decided to rescind the contract “during the cooling off period”, and that he lost the holding deposit of $1,000.

23. The plaintiff then deposed that he sought assistance from friends in finding a suitable property. These friends included Ms Annie Luu “who was then working as a real estate agent”. The plaintiff says that he inspected a property in Polding Street, Fairfield West, and on 17 July 2012 his father, on his behalf, entered into a contract to purchase the property for $457,000. The plaintiff says that he again paid a holding deposit of $1,000, and that his father, on his behalf, paid a further $44,700 as the balance of the deposit.

24. The plaintiff deposed that, despite the contract, he continued to look for properties, and in so doing found the Property (i.e., the property at 20 Garden Street, Mount Pritchard). The Property was listed for sale by auction on 28 July 2012.

25. The plaintiff says that after speaking to his father, he rescinded the contract for the Fairfield West property, and lost his holding deposit of $1,000.

26. The plaintiff then deposed that on 28 July 2012, his father, on his behalf, entered into a contract to purchase the Property for $434,500, and that his father, again on his behalf, paid a deposit of $43,450. The plaintiff deposed that he had brought the deceased and the defendant to the auction, but only because:

I needed my father to bid and purchase the property in his name on my behalf.

The plaintiff gave some oral evidence, which will be referred to later, about what occurred at the auction.

27. The contract to purchase the Property settled on about 31 August 2012. The deceased became the registered proprietor shortly thereafter. The Property became subject to a mortgage in favour of Westpac Banking Corporation. The evidence concerning the obtaining of finance for the purchase will also be referred to later in these reasons.

28. The plaintiff deposed that he and his family soon moved in to live at the Property. The plaintiff deposed that at no time did he have any discussions with his parents about him renting the Property, or paying them any money as rent for the Property. The plaintiff gave evidence that he, or at least Stephanie Luu, attended to the payment of amounts for the mortgage over the Property. The plaintiff says that he carried out renovations to the Property without payment “because it was my property”.

29. The plaintiff further says that he later made arrangements for the granny flat at the Property to be rented out “with the intention of reducing my mortgage repayments”. He gave evidence of three occasions when he made such arrangements. He says that his parents never collected the rent for the granny flat.

30. The plaintiff deposed that in about mid-June 2017, he and his partner decided to move to Queensland. He deposed that at that time, arrangements were made for the house to be rented out. The plaintiff gave evidence that his father was involved in that process, as he would be needed “to put the money straight into the home loan account”.

31. The plaintiff deposed that he and his family moved back to Sydney in about October 2018. By that time, his father had died. The plaintiff says that he rented a property for about 6 months, until the tenants at the Property moved out. He deposed that he and his family moved back into the Property in about April 2019. He says that the granny flat continued to be rented out for $300 per week. The plaintiff deposed that he did not speak to his mother about removing the house tenants, or re-occupying the house.

32. Stephanie Luu made two affidavits that were read. These were her affidavits dated 14 July 2021 and 13 December 2021. In the earlier affidavit, she deposed:

In or about 2012, I was with the Plaintiff when we had a conversation with the Deceased and the Defendant with words to the following effect:

Vince Le:      I am looking at properties to purchase.

Stephanie Luu:   We are starting a family and it is time that we looked at buying a larger property.

The deceased:   I think it is a good idea. We would like to give you money to help you buy a property.

Thi Thon Le:   That’s right, we would like to help. We will give you $100,000.00 towards the purchase of your house.

33. She deposed that she and the plaintiff began looking for properties to purchase, and were also attempting to obtain a loan for that purpose. She further deposed:

In or about early 2012, the Plaintiff and I had a conversation and we said words to the effect:

Vince Le:   Deric Ly told me that I won't be able to get a loan because I have a default against my name.

Stephanie Luu:   What should we do. Your dad was looking forward to seeing us purchase a family home and offered to assist us with the initial deposit.

Vince Le:   Deric Ly recommended that I find someone I can trust to obtain a loan on my behalf. I will speak with my dad.

34. Stephanie Luu deposed that in or about May 2012, she and the plaintiff had a conversation with the deceased to the following effect:

Vince Le:      How did you go with obtaining a loan.

The deceased:   Deric Ly has gotten back to me. I was successful in obtaining a home loan with Westpac Bank.

Vince Le:   That's great. I have been looking at various properties. There is an upcoming auction for one of them. I think you and mum should come to the auction with me to have a look at the property.

The deceased:   That's a good idea. Let me know where this property is and when the auction is.

Vince Le:   No worries. I’ll let you know. Thanks.

35. She deposed that shortly thereafter she and the plaintiff were successful in the auction in purchasing the Property, and that the deceased and the defendant “were also both present”. She deposed that she and the plaintiff moved in to live at the Property in about September 2012.

36. Stephanie Luu gave evidence about the carrying out of renovations on the Property, from about late 2012, and deposed that following the renovations, she and the plaintiff decided to rent out the granny flat “as it would assist us with the loan repayments on the Property”. She gave evidence about a rental agreement with a Ms Quach and a Mr Huynh from about 2014 to 2016 for $250 per week, with $500 being paid each fortnight to the plaintiff or herself.

37. Stephanie Luu deposed that during that time (i.e. 2014 to 2016) she was on Centrelink benefits, and each fortnight she would withdraw those benefits from her ANZ account “together with the rent paid by Ms Quach, to make repayments on the Westpac mortgage on the Property”. Ms Luu annexed to her affidavit a number of pages of ANZ account statements. She deposed that she would “physically attend the Cabramatta West branch and deposit money for the Westpac mortgage repayments”.

38. Stephanie Luu further deposed that since 2012, she has been responsible for paying water rates, Council rates and electricity bills for the Property. A number of documents relevant to those matters are annexed to the affidavit. She also gave some evidence about carrying out necessary repairs and maintenance at the Property.

39. In her second affidavit, amongst other things, Stephanie Luu gave further evidence about looking for a property to purchase in 2012, and the plaintiff carrying out repairs to the Property prior to 2017. She also responded to parts of the defendant’s affidavit dated 18 October 2021.

40. Two affidavits made by the defendant were read, namely, the affidavit just mentioned, and an earlier affidavit dated 1 March 2021.

41. The defendant’s first affidavit refers to various matters in relation to a property in Corriedale Street, Wakeley. Wakeley is a suburb of Sydney that is located close to Fairfield West and Cabramatta West. The Wakeley property is an important matter of background to the events of 2012.

42. The Wakeley property was initially purchased in 2001, it seems by the defendant and the deceased, but put into the name of the plaintiff. This may have been done, in part, to take advantage of a first home buyer benefit. The property was subject to a mortgage in favour of ING Bank (Australia) Ltd. However, in 2004, following an incident in which the plaintiff withdrew money from the mortgage account associated with the property, the property was transferred into the name of the plaintiff’s half-brother, Cong Nguyen Huynh. The plaintiff moved out of the property around the same time. The Wakeley property was later transferred into the defendant’s name in 2006. At that time, the property became subject to a mortgage in favour of Perpetual Trustees Victoria Ltd. The property has remained thereafter in the defendant’s name, but in 2012 there was a refinance of the mortgage, whereby Perpetual Trustees Victoria Ltd was replaced as mortgagee by Westpac Banking Corporation. The refinance transaction will be referred to later in these reasons.

35. In relation to the acquisition of the Property in 2012, the defendant deposed:

In around 2010, I received $100,000.00 inheritance from Vietnam and deposited this sum into the home loan account of the Wakeley property. The home loan account was reduced substantially.

…

The deceased and I made enquiries with Westpac Bank. The deceased was a self employed builder and was able to obtain a home loan for over $300,000.00 with a monthly repayment of about $1,750.00.

44. The defendant further deposed that she and the deceased looked at a number of properties, and put a deposit on two of them. She continued:

A real estate agent in Liverpool showed us the Mt Prichard property. We inspected it. The deceased and I liked the property. We attended the auction. Vince was with us at the auction. He filled in the paper for us at the auction.

I made the bids on behalf of the deceased and I was the highest bidder. The property was sold at auction for $434,500.00. The contract was in the deceased's name as we had discussed and agreed. The deceased said to me: "If I die, the house is yours".

I arranged for $120,000.00 to be transferred from the home loan account of the Wakeley property to the account of the deceased. He borrowed about $330,000.00 from Westpac Banking Corporation to finance the purchase. He and I discussed and agreed to pay $500.00 per week to the mortgage to pay off quicker than monthly payment [sic].

45. The Property was in fact acquired in the name of the deceased, who is named as the purchaser on the contract to purchase the Property dated 28 July 2012 (for $434,500), and is named as the transferee on the form of Transfer (AH 277477). The Property became subject to a mortgage granted by the deceased in favour of Westpac Banking Corporation (AH 277478). The amount borrowed was in fact $347,600.

46. The defendant deposed:

There was no discussion between any of us about buying the Mt Pritchard property for Vince at that time, or at all.

47. The defendant continued:

Vince and his partner were renting somewhere else at the time. Vince, the deceased and I had a conversation in words to the effect: -

Vince Le:      Can I rent the property with my partner and child?

Thi Thon Le:      Do you promise to pay rent properly?

Vince Le:      Yes. I do. How much do you want me to pay?

The deceased:   I need at least $400.00 per week to pay towards the home loan. Your uncles and I will be working on the granny flat at the back. When it is complete, I will rent it out and reduce your rent. Depends how much the rent is. I want to pay $500.00 per week to the home loan.

Vince Le:      Thank you.

48. The defendant deposed that, a few months later, after the completion of some works at the Property, the plaintiff’s rent was reduced to $200 per week. She further deposed that the deceased had in place a direct debit of $500 per week “taken from his bank account to the home loan account with Westpac” (being an account with a number ending in 4844). I note in passing that that account was indeed the account for the mortgage, but the direct debit amount going into the account was initially only $930.46 each fortnight.

49. The defendant deposed that she and the deceased paid the Council rates, water rates and insurance for the Property, and that the deceased, who was a builder, carried out maintenance and repairs himself. She says that, once the granny flat had been rented out, the plaintiff only paid the $200 per week.

50. The defendant deposed that there were occasions when the plaintiff was “kicked out” for allegedly stealing $30,000 from the defendant’s home loan account (concerning the Wakeley property) in 2014, or for failing to pay the rent. She says that there were times when the plaintiff and Stephanie Luu (or Cuc as she generally called her) separated, and that Cuc moved to Brisbane, with the plaintiff following her later. The defendant deposed that whilst the plaintiff and his family were not there, the Property was rented out.

51. The defendant deposed that following her husband’s death on 1 April 2018, she continued to manage the Property, including by depositing money into his bank account “so the mortgage repayments could be made to the bank in the amount of $500 per week”, paying Council and water rates, and effecting insurance. She deposed that after the closure of the bank account, she continued to make monthly repayments directly into the mortgage account.

52. The defendant further deposed:

About a year after Vince moved back to Sydney. He had a conversation with me in words to the effect: -

Vince Le:   Can I move into the Mt Pritchard property? The place where I am renting now is too expensive. I do not work all the time. Sometimes I can't afford the rent. You collect good rent from the granny flat at the back. Can you let me and my family rent the house at the reduced rent?

Thi Thon Le:   It is rented out at the moment. I can't ask the tenant to leave. They are good tenants. They pay rent on time. But the problem is you. I don't want any headache from you.

The defendant says that she eventually agreed to let the plaintiff and his family move back in.

53. The defendant also gave evidence about an insurance claim she made in 2020 in relation to water inundation of the Property. She deposed that she gave the claim proceeds to the plaintiff, who had promised to use the money to repair the Property, and put any surplus money that remained after the repairs were effected into the home loan account. She deposed that the plaintiff eventually put $30,000 into that account, but then claimed that the balance of the money was his own. The defendant deposed that in about March 2020, the plaintiff said to her:

From now on, I will pay straight into the home loan account. I will also pay for council rates, water rates and insurance.

54. It appears that from around that time, the plaintiff and the defendant have been in open disagreement concerning the ownership of the Property, and the plaintiff has indeed made payments directly into the home loan account.

55. In her second affidavit, the defendant responded to various parts of affidavits filed in the plaintiff’s case. It is not necessary to refer here to the details of her response.

56. Numerous other witnesses were called to give evidence at the hearing. The plaintiff called, in addition to himself and his partner, a further six witnesses. These were:

1. Hoang Nhan Le (a friend of the plaintiff);

2. Annie Luu (a real estate agent);

3. Truong Sanh Ly, aka Deric Ly (a finance broker);

4. Anh Quan Ong (a friend of the plaintiff);

5. Thi Ngoc (or Loc) Le (a sister of the defendant); and

6. Quoc Vinh Dang (a real estate agent).

57. The defendant called, in addition to herself, a further five witnesses. These were:

1. Tifferny Ave-Lee (a tenant of the granny flat at the Property);

2. Cong Tung Huynh (a younger brother of the deceased);

3. Cong Tuong Huynh (a younger brother of the deceased);

4. Thi Lang Nguyen (the mother of the deceased); and

5. Van Hai Nguyen (a cousin of the defendant).

58. The evidence given by these further witnesses will be referred to later in these reasons. However, it is convenient to first say something about the evidence of each of the three central witnesses, namely, the plaintiff, Stephanie Luu, and the defendant. In so doing, I have considered the testimony of each witness, both written and oral, in light of the evidence as a whole, including the documentary evidence and the evidence given by the further witnesses identified above.

59. A number of aspects of the plaintiff’s evidence gave rise to concern about the reliability of his evidence generally. The plaintiff conceded in cross-examination that there were a number of inconsistencies between, on the one hand, aspects of his account as contained in his 13 December 2021 affidavit, and on the other hand, aspects of his account as contained in his 9 February 2021 affidavit. He conceded, for example, that what was said in the earlier affidavit about making inquiries of banks was inconsistent with the evidence in the later affidavit about meeting with Deric Ly. The plaintiff conceded that what was said in the earlier affidavit about the deceased suggesting that he put his name on the mortgage was inconsistent with the evidence in the later affidavit about Mr Ly coming up with the idea of having a family member apply for a loan. The plaintiff also conceded that, unlike the 13 December 2021 affidavit, there was no mention in his earlier affidavit of Stephanie Luu being present when the conversation about the gift of $100,000 occurred. In this regard, the plaintiff further accepted that when he prepared his 13 December 2021 affidavit, he wanted to ensure that it was consistent with the affidavit Stephanie Luu had sworn on 14 July 2021. The plaintiff also conceded that there was an inconsistency between his 13 December 2021 affidavit and the claim described in the caveat he had lodged in October 2020, as to which property the alleged purchase agreement related to.

60. Further, the plaintiff appeared not to have a good recollection of events that occurred in the past. He could not recall, for example, if one of his children was born in 2012 or 2013. In this context, the plaintiff volunteered that he was “bad with dates”. 2012 is, of course, the very year in which the critical events occurred in relation to the acquisition of the Property.

61. It is also noteworthy that, prior to the 13 December 2021 affidavit, the plaintiff made no mention of either the Links Avenue, Cabramatta property or the Polding Street, Fairfield West property, yet those properties seem to assume an important role in the plaintiff’s narrative of the events in 2012. The plaintiff appeared to blame his former solicitors for the situation, stating that he mentioned the properties to them but “they didn’t put it in”. The plaintiff sought to blame his former solicitors for a number of problems, and did so on occasion in strident terms.

62. The plaintiff’s evidence about the auction of the Property on 28 July 2012 was very confused. In his 9 February 2021 affidavit, he said that he was the one doing the bidding, but in his 13 December 2021 affidavit he suggested that it was the deceased who bid. In cross-examination, he gave evidence as follows (at Transcript 54 lines 31 to 46):

Q:   Who was doing the bidding?

A:   Like, the agent? Or who did – my dad did. Because he was the person that had the loan.

Q:   So your dad was doing the bidding?

A:   So was I. Well, I gave it to my mum cause she was there with the dad. But dad registered. Dad registered. But mum and dad was there.

Q:   What did you give to your mum? You said, “I gave it to my mum”, what are you referring to?

A:   For her to hold, so she can – or I don’t know was it her, because she was standing next to me, so I’ll tell whether to bid more or less.

Q:   So it’s your evidence then that your mother, the Defendant, was doing the bidding?

A:   For me, yes.

The plaintiff’s later answers at Transcript 56 lines 9 and 49 only served to reinforce the confusion.

63. Moreover, it was clear that the plaintiff, together with Stephanie Luu, played an active role in seeking witnesses in support of the case, and in the preparation of the evidence of a number of witnesses. Involvement in the preparation of evidence occurred by means of a list of questions that had been prepared by Stephanie Luu and submitted to witnesses (including, notably, Thi Ngoc Le) for their response. This conduct was suggestive of a tendency to cultivate evidence favourable to the case, and gives rise to suspicion that the plaintiff would be quite prepared to tailor his own evidence so as to favour his case.

64. Overall, I gained an impression of the plaintiff as a witness whose evidence could not be accepted as accurate or reliable, particularly on any matter of importance, unless it was corroborated by evidence that was itself able to be relied upon. Absent such corroboration, I would be generally reluctant to accept his evidence on a contentious matter.

65. I appreciate, of course, that in relation to some matters, including the conversations at the centre of the dispute, objective evidence about what was said would not necessarily be expected, so the testimony of the witnesses going to such matters must be assessed in that light.

66. The cross-examination of Stephanie Luu revealed a number of matters that cast serious doubt upon her credibility as a witness. These matters included:

1. that in January 2015 she participated in what she described as a “fake marriage” with a man, Van Hoan Nguyen, evidently in order to assist him in an immigration application;

2. that in support of that application, she signed a form that contained information that was known by her to be false, in the knowledge that she was under an obligation to tell the truth, and knowing that giving false or misleading information was a serious offence;

3. that she signed a lease of a property in Cabramatta as a tenant with Van Hoan Nguyen to assist him in creating a “paper trail” to support his application, in circumstances where she did not ever live at the property; and

4. that she made up a name “Van Qui Lam” for the purpose of making a false claim for child support benefits as a single mother.

A certificate was issued under s 128 of the Evidence Act 1995 (NSW) in relation to the evidence given by Stephanie Luu concerning the above matters.

67. Ms Luu attempted to explain that she was required to play her part in the “fake marriage”, that had been “arranged with money” by others, including the defendant. This evidence displayed an attempt to simultaneously minimise her own culpability in the dishonest conduct and implicate the defendant in the conduct. I note that it was not put to the defendant in cross-examination that she had been involved in arranging either the “fake marriage” or the immigration application itself. I would add that Stephanie Luu’s evidence, when she was pressed about who actually made the arrangements, was replete with confusion. It appeared to me that she was deliberately obfuscating. I was also unimpressed with Stephanie Luu’s disdain when it was put to her that various parts of her affidavit were false. Further, as was the case with the plaintiff, her role in the preparation of the evidence of a number of witnesses was troubling. I gained a firm impression of Stephanie Luu as a witness who was more than capable of giving false evidence to the Court if she thought that doing so would assist the plaintiff’s case or damage the defendant’s credibility.

68. An example is her evidence (at Transcript 101) to the effect that she started making fortnightly payments towards the Westpac mortgage on the Property when she and the plaintiff moved into the Property in late September 2012. She gave that answer even though her affidavit suggested that such payments were made in the period from about 2014 to 2016. She said that she did “net banking” a few times from her ANZ account into the deceased’s savings account, and later started depositing cash from her ANZ account into the deceased’s savings account. That seems to be a reference to an account held by the deceased at Westpac (with a number ending in 5255) that was opened in November 2012. However, the bank statements for the two accounts in late 2012 to early 2013 do not show the transfer of any amounts directly from the ANZ account into the Westpac account, or cash deposits into that account that appear to match withdrawals from the ANZ account.

69. Generally, I would not be prepared to accept Stephanie Luu’s evidence on any matter of importance unless it was corroborated by evidence that was itself able to be relied upon.

70. The defendant was cross-examined at length. It is clear that some aspects of her evidence are inaccurate, and her recollection of the detail of some events was poor. There were also occasions where the defendant appeared to be confused about what she was being asked. Nevertheless, she struck me as a witness who made a genuine effort to understand, and respond to the questions put to her as accurately as she could. This general impression became firmer as the cross-examination progressed, despite the fact that she had to concede that information given to Westpac in support of her refinancing application in 2012 (notably concerning her employment), was not correct.

71. The evident inaccuracies present in her testimony, and her poor recollection of some details, mean that I treat the defendant’s uncorroborated evidence with some caution. Nonetheless, I consider that, in general, her evidence is much more likely to be reliable than that of either the plaintiff or Stephanie Luu.

72. I turn now to make observations about, and note particular aspects of, the testimony of the various other witnesses in the case. I will commence with the further six witnesses called in the plaintiff’s case.

73. Hoang Nhan Le deposed that he has known the plaintiff, and the deceased, for about 20 years. He says that he is a friend of the plaintiff, and that he has worked with the deceased as a labourer on many occasions between about 2014 to 2018. Mr Le deposed that in or about 2017 to 2019, he was hired by the plaintiff to do some minor works at the Property. He further deposed that on one occasion, in about 2014, the deceased said to him words to the effect:

I helped my son [Vince Le] to buy a property, 20 Garden Street in Mount Pritchard. You should come over to visit Vince in his new home.

74. Hoang Le also deposed that on a number of occasions, after work, the deceased would refer to the Property as “Vince’s house”.

75. Mr Le appeared to be unusually nervous when giving his evidence in the witness box. He agreed that he is a close friend of the plaintiff, who approached him to give evidence, and that in giving evidence he wanted to support him. His attempts to explain his recollections (including that “my memory comes back here and there” and “sometimes…I forget and then I’ll remember”) were unconvincing. I do not think that his evidence about what the deceased said to him can be regarded as accurate or reliable.

76. In circumstances where the plaintiff moved into the Property to live shortly after its purchase by the deceased, it is at least plausible that the deceased may have made statements about buying the Property and thereby helping the plaintiff with his “new home”. However, statements to like effect seem to me to carry little weight towards establishing that the Property the deceased had purchased was to be owned by the plaintiff. Similarly, I do not think that the evidence that the deceased, at times between about 2014 and 2018, referred to the Property as “Vince’s house”, is substantial evidence that the Property the deceased had purchased was to be owned by the plaintiff.

77. Annie Luu is also a longstanding friend of the plaintiff. She deposed that in 2012 she worked in real estate. She deposed that in around 2012, she had a conversation with the plaintiff in which he told her that he was looking for a property, that he could not get finance, but that his parents were going to help him out. In her second affidavit, Annie Luu deposed that in about 2016, the plaintiff asked her to arrange a market appraisal for the Property. She says that she visited the plaintiff and his family at the Wakeley property to discuss the matter. She deposed that, at the meeting, she handed copies of the appraisal to both the plaintiff and the defendant. She further deposed that during a discussion that followed, the defendant said:

Vince owns the Property so any information in relation to potential sales needs to go to him.

The meeting, and the conversation, is denied by the defendant.

78. Annie Luu did not seem to have a good recollection of events, including as to her own work history. It emerged in cross-examination that she was not actually working in real estate in 2012, and she conceded that she only vaguely recalled the conversation she says she had with the plaintiff in about 2012. For those reasons, and also her association with the plaintiff, I would not be prepared to accept that a conversation occurred between her and the plaintiff in 2012 to the effect of that which is contained in her affidavit.

78. Neither would I be prepared to accept her evidence about what the defendant said in about 2016 about the plaintiff owning the Property. I prefer the defendant’s denial of that. In cross-examination, Annie Luu gave some answers that departed from her affidavit account (as to the number of appraisals handed over at the meeting), and again it was apparent that her recollection was poor. She accepted that parts of the conversation as set out in her affidavit might be wrong, and indeed ultimately accepted that she could not say that she recalled the defendant saying that the plaintiff owned the Property.

79. Further, even if there was a meeting of the type she describes, the fact that it was held at the Wakeley property (rather than the Property itself), and the fact that the discussion involved both the plaintiff and the defendant, means that the meeting does not provide cogent evidence in support of the notion that the Property had been purchased in 2012 by the deceased for the plaintiff.

80. Truong Sanh Ly (or Deric Ly) deposed that in about early 2012, when he was a finance broker, the plaintiff approached him for assistance in obtaining a loan from Westpac for the purposes of purchasing a residential property. It seems that, at that time, Mr Ly had known the plaintiff socially for about 2 years. Mr Ly deposed that, after obtaining the plaintiff’s credit score, he informed the plaintiff that he would not be able to get a loan. Mr Ly deposed that the plaintiff told him that his parents “are helping me with purchasing a property”. Mr Ly further deposed that, on about 15 May 2012, the plaintiff and the deceased came into his office in relation to applying for a loan to purchase the Property. He deposed that the deceased said that he wanted to help his son buy the Property, and Mr Ly told him that he might be able to apply for a loan on his son’s behalf. Mr Ly deposed that the deceased’s credit score was also problematic due to a history of late or non-payments, but once his loan application with Westpac was lodged, he understood that he obtained approval.

81. The only document relied upon by Mr Ly in making his affidavit does not contain any reference to the plaintiff, or to the Property itself. It does show that an application for finance made by the deceased was declined by Westpac on 15 May 2012, and that Mr Ly took steps on 31 May 2012 to have the matter reviewed. Mr Ly would not concede in cross-examination that this was inconsistent with the statement in his affidavit of his understanding that once the deceased’s loan application was lodged, he obtained approval.

82. Mr Ly agreed that he would have filled in the information for the deceased’s loan application. He was taken to a document, produced by Westpac, being a Loan Submission Cover Sheet dated 15 May 2012 and attached pages. The document relates to an application by the deceased for finance, apparently in relation to a purchase of the property at Links Avenue, Cabramatta.

83. On one of the attached pages, the deceased was described as the “Borrower-Joint With Spouse”. Mr Ly accepted that he had included that information. He denied, however, that the deceased had never told him that he was buying a property on behalf of the plaintiff.

84. The information so included by Mr Ly suggests that the deceased told him that he was looking to borrow money together with the defendant. However, Mr Ly does not refer in his evidence to any involvement by the defendant in the application for finance. It is likely, and readily understandable, that Mr Ly has forgotten about that matter. It is likely that he also forgotten many of the other details of what was discussed so long ago in the course of but one of so many finance applications handled by him. Whilst I accept that Mr Ly made a genuine attempt to recall the detail of what occurred, I would not be prepared to rely upon what he says he recalls on such matters unless it was corroborated by evidence that is itself likely to be reliable.

85. Anh Quan Ong deposed that he has known the plaintiff for many years, since “high school days”. He deposed that he recalled that in about 2012, he went with the plaintiff to speak to a mortgage broker, Deric Ly, at Westpac Cabramatta. He also deposed that he and the plaintiff looked at various properties in the areas surrounding Cabramatta. Mr Ong deposed that in or about late 2012, the plaintiff asked him on many occasions to assist him in renovating the Property, and that he would do such work with the plaintiff, the deceased and one of the deceased’s brothers. Mr Ong further deposed that on a number of occasions the deceased said to him:

I helped my son [Vince Le] to buy this property. He will be moving into the Property soon.

87. Mr Ong further deposed that on occasions the deceased told him that he should speak to the plaintiff about the improvements to the Property as “it’s not my house”. Mr Ong deposed that the deceased would often say that he was proud of the plaintiff “starting a family and owning his own house”.

88. Mr Ong’s evidence that he went with the plaintiff to speak to Mr Ly at Westpac Cabramatta appears incorrect. It appears from documents, including the email attached to his affidavit, that Mr Ly worked at Project Wealth in 2012. Mr Ly deposed that he was then working from an office in Park Road, Cabramatta. Yet in cross-examination, Mr Ong gave further evidence that he and the plaintiff went to the Cabramatta branch of Westpac to book an appointment to see Mr Ly, and that when they arrived, Mr Ly was there. When challenged about whether he had any recollection of that meeting, he said “Of course I do”. I found Mr Ong’s evidence on this matter to be unbelievable. Moreover, the confidence with which he claimed to recall the event tends to cast doubt on the accuracy and reliability of the entirety of his evidence. That doubt is reinforced by the circumstance that he and the plaintiff have been friends for a long time. Even though Mr Ong firmly maintained his evidence about statements made by the deceased, I would not accept that evidence as essentially accurate unless it was corroborated by reliable evidence from another source.

89. Thi Ngoc (or Loc) Le is a sister of the defendant. She was called in the plaintiff’s case, having signed an affidavit in which it was stated that she recalled statements made by the deceased and the defendant, around the time of the auction of the Property, to the effect that they were “helping Vince buy a house”.

90. The Court was informed that Ms Le required a Vietnamese language interpreter, but there was no evidence that her affidavit had been interpreted for her before she signed it. When she was called, and shown her affidavit, she agreed that she had signed it, but went on to say that she did know what the English was that was written in it. She went on to say that she gave the affidavit to her son, Kevin, to read it to her, but she then went on to suggest that the plaintiff (referred to as Tam) gave it to Kevin for that purpose. It later emerged – after Stephanie Luu and the plaintiff were each recalled to the witness box – that the plaintiff had provided the affidavit to Kevin with a request that he translate it into Vietnamese for his mother, but this had not occurred until after she had signed it (see Exhibit A).

91. In cross-examination, Ms Le gave confusing evidence about the circumstances in which she came to sign the affidavit. This included evidence to the effect that the plaintiff had read the contents of another document to her in Vietnamese. Ms Le said that the plaintiff told her that his mother had bought the house for him, and asked whether she could be a witness to this. Ms Le then gave evidence that she told the plaintiff that “this house was bought by your parents, so…how can I say that they bought it for you?”, and “No, because your mother and father is [sic] the owner of this house. How can I be witness for you?” Ms Le also gave further evidence to the effect that when she signed the affidavit she did not understand what it said.

92. In these circumstances, I cannot place any weight upon what appears in Ms Le’s affidavit. Regardless of what weight, if any, might be given to what she said in the witness box, her evidence is of no assistance to the plaintiff’s case.

93. Quoc Vinh Dang is a real estate agent. He did not make any affidavit. He was called following the service upon him of a subpoena. Mr Dang gave evidence to the effect that around 2012 the defendant, the deceased and one of her sons came to his office (in either Cabramatta or Canley Vale) and asked him to take them to see some properties. Mr Dang gave evidence to the effect that he showed them one property, being the property in Links Avenue, Cabramatta. He said that he had recommended that they buy that property, but they did not do so.

94. In cross-examination, Mr Dang said that the defendant, the deceased and the son all went to inspect the property. He said that the request to take the group to see the property was made by the defendant and her husband. (It is clear that the reference at Transcript 298 line 28 to “Mrs Tung” should be understood as a reference to the defendant.)

95. I think that Mr Dang gave his evidence as accurately as his recollection of the events of 2012 would allow. I accept, based on his evidence, that the deceased and the defendant, in the company of the plaintiff, asked Mr Dang to take them to see the Links Avenue, Cabramatta property. I note that it is clear that a contract to purchase the property was entered into by the defendant on 15 May 2012. However, the contract did not proceed to completion.

96. I turn now to the further five witnesses called in the defendant’s case.

97. Tifferny Ave-Lee deposed that she rented the granny flat at the Property from the deceased and the defendant from October 2017 to December 2018. I note that that was a period during which the plaintiff and his family were not living at the Property. She gave evidence in chief in the witness box that when she went to inspect the granny flat she met only the deceased, and that when she moved in she paid the bond to him. She gave further evidence in the witness box that she paid the rent every fourteenth and last day of each month, directly to the defendant. She deposed that, after a while, the defendant asked her to collect the rent from the tenants of the main house (who were friends of hers). She deposed that she then gave both rents to the defendant. Ms Ave-Lee also deposed that she was involved in some discussions with the deceased and the defendant about building a pergola and laying some concrete around the granny flat.

98. In cross-examination, Ms Ave-Lee provided some further clarification of her evidence, including that concrete was in fact poured around the granny flat as she had requested. Her evidence was essentially not challenged in cross-examination. Ms Ave-Lee seemed to be a careful witness, doing her best to give her evidence as accurately as she could.

99. Cong Tunh Hunyh is a younger brother of the deceased. He deposed to the circumstances in which he had signed an earlier affidavit (on 10 March 2021), stating, in effect, that he did so at the request of the plaintiff and without having the document read to him first in the Vietnamese language. He deposed that the affidavit was later read to him in Vietnamese, and that certain parts of it, including conversations set out in it, were incorrect. He deposed that he rented the granny flat from the deceased from 2014 to 2016, initially paying the rent to the deceased, but later paying it to the plaintiff to give to the deceased. He deposed that when he was working on the renovations to the Property, the deceased told him that he was buying the property as an investment, and also that his grandchildren could live there.

100. However, in cross-examination, Cong Tunh Hunyh denied that it was his signature on the 10 March 2021 affidavit. He further denied that his signature appeared on the pages of his later affidavit. He gave evidence to the effect that the later affidavit was not translated to him in Vietnamese before he signed it. I note that this evidence is contrary to a solicitor’s certificate, and seems to me to be quite unlikely.

101. In the above circumstances, it is entirely unclear what evidence he claims to be correct, and I do not think that any weight can be placed upon his testimony.

102. Cong Tuong Huynh is also a younger brother of the deceased. He deposed that the deceased asked him and his other brothers to work with him to renovate the house. He deposed that the deceased always paid for the building materials. He said that he was paid $150 a day by the deceased. He further deposed that the deceased said to him that “we rented the house to Tam [the plaintiff] at a reduced rate to help him” and that “we bought the property as an investment”.

103. In cross-examination, Cong Tuong Huynh said that he was paid for his work at the Property by the defendant. He said that the plaintiff helped out on the weekends. He also gave evidence to the effect that his affidavit had not been translated into Vietnamese for him before he signed it. That evidence is also contrary to a solicitor’s certificate, and seems to me to be quite unlikely.

104. However, the lack of clarity about what evidence he claims to be correct leads me to conclude that I do not think that any substantial weight can be placed upon his testimony.

105. Regrettably, I have reached the same conclusion in relation to the testimony of the defendant’s mother, Lang Thi Nguyen. She deposed that after the plaintiff returned to Sydney (from Queensland) he asked her to talk to the defendant and persuade her to let him and his family move back into the Property. She further deposed that she had refused a request made by the plaintiff that she sign a document stating that the Property was his.

106. However, in cross-examination, Lang Thi Nguyen gave evidence to the effect that she signed the affidavit without it having been translated to her in Vietnamese. That evidence is contrary to a solicitor’s certificate, and seems to me to be quite unlikely.

107. Once again, the lack of clarity about what evidence she claims to be correct has led me to conclude that I do not think that any substantial weight can be placed upon her testimony.

108. Van Hai Nguyen is a cousin of the defendant. He has lived at the Wakeley property since 2007. He deposed that in 2012 he heard the deceased and the defendant speaking about buying a property for investment, and later saying that they had bought a property in Mount Pritchard. He deposed that they spoke about Tam (the plaintiff) and his young family going to move in at a reduced rent. Mr Nguyen further deposed that after the deceased died, he collected rent from the tenants at the Property for the defendant. He deposed that about a year after Tam moved back to Sydney, he asked him to talk to the defendant about renting the Property. He deposed that after Tam moved in, he collected rent from him, and from the tenant at the back, and gave the rent to the defendant.

109. In cross-examination, Mr Nguyen said that both the plaintiff and Stephanie Luu had asked him “about moving back to rent again that property in Mount Pritchard”. He gave further evidence, that was somewhat difficult to follow, about his communications with the solicitor in relation to the contents of his affidavit. However, he clearly stated that his affidavit was translated to him in Vietnamese before he signed it. Mr Nguyen’s evidence was tested, but essentially not challenged in cross-examination. He appeared to be a satisfactory witness.

110. It is necessary to consider the oral testimony of the witnesses in the light of the available documentary evidence. As already mentioned, contemporaneous documentary evidence that corroborates the plaintiff’s claims is lacking. That is to say, there are no documents, created around the time of the acquisition of the Property in 2012, that appear to suggest that the Property was being acquired for the plaintiff or was to be held on trust for the plaintiff. However, the plaintiff contends that certain later documents, including rental agreements and bank statements, support his case as they show conduct consistent with the existence of the alleged oral agreements and common intention.

111. The documentary evidence from 2012 includes material produced by Westpac relating to the financing of the acquisition of the Property. It is apparent from that material that, prior to the acquisition, not only was the deceased seeking finance from Westpac for the acquisition, the defendant was seeking finance from Westpac to refinance the mortgage over her Wakeley property. Further, the documents are consistent with the defendant’s evidence to the effect that she provided substantial funds for the acquisition.

112. It seems that the defendant contributed to the acquisition of the Property by providing $100,000 for that purpose. This was effected by means of a $100,000 drawdown on the Perpetual Trustees Victoria mortgage over the Wakeley property. The drawdown was effected on 1 August 2012, four days after the auction of the Property. Evidence was given by the defendant in cross-examination to the effect that she withdrew that money to buy the Property with her husband. She said that she withdrew the money as a cheque “and paid it to the company, real estate”. I accept that evidence. I infer that the $100,000 was used, in part, for payment of the deposit, and in part towards acquisition costs or the balance of the purchase price on settlement. The defendant referred in her first affidavit to transferring $120,000 to the account of the deceased, but this evidence seems to be incorrect. I note that the refinancing of the Perpetual Trustees Victoria loan by Westpac occurred on about 2 October 2012, after the Property had been acquired.

113. The documents concerning the finance being sought by the deceased do not suggest that the plaintiff was in any way involved in the acquisition of the Property. The documents suggest that the deceased was to acquire the Property alone, although, as already noted, the information initially provided by the finance broker (Project Wealth) to Westpac indicated that the deceased and the defendant were to be joint borrowers.

114. A large number of bank statements were adduced in evidence. The statements related to a number of accounts, notably a Westpac savings account held by the deceased (with a number ending in 6702), another Westpac savings account held by the deceased (with a number ending in 5255), a Westpac home loan account held by the deceased (with a number ending in 4844), and an ANZ cheque account held by Stephanie Luu (with a number ending in 3229).

115. I have already referred to the evidence given by Ms Luu in cross-examination about transferring money from her ANZ account into the deceased’s savings account. That evidence was not supported by the bank statements for the period late 2012 to early 2013.

116. However, an examination of the statements, assisted by an aide-memoire provided by counsel for the plaintiff, indicates that at various times money was transferred from the ANZ account into the Westpac savings account (with the number ending in 5255). For example, on 19 November 2014, $1,000 appears to have been transferred – the ANZ statement records the transfer as being to Cong Thanh. Other examples are transfers of $1,000 on 3 December 2014, 17 December 2014, 8 April 2015, 22 April 2015, 17 June 2015 and 29 July 2015.

117. There is also evidence of a number of cash deposits into that savings account, effected from Morayfield. Morayfield is in Queensland, not far from Caboolture. It is likely, notwithstanding the difficulties in accepting the evidence of Stephanie Luu, that these payments were effected by her from time to time when she was in Queensland. These payments (usually of $1,000, but occasionally of other amounts) occurred at irregular intervals between 14 August 2013 and 28 December 2016.

87. Apart from what is described above, the bank statements show numerous transfers (either by electronic funds transfer, or cash deposits) into the deceased’s savings account (with a number ending in 5255) since it was opened in November 2012. Some of the transfers, in the period from 19 November 2014 to 23 September 2015, appear to have been effected by Stephanie Luu. These payments (usually of $1,000) were made at irregular intervals. Otherwise, the provenance of the payments into that savings account is not made clear by the documents. It is likely that some of these further payments were made by either Stephanie Luu or the plaintiff, but in the absence of firm documentary evidence that corroborates the evidence they gave about the making of payments, I would not be prepared to positively find that any particular payments were made by either of them, either in whole or in part.

88. I note that there is evidence that on at least two occasions, Stephanie Luu made payments directly into the deceased’s home loan account. This occurred on 19 June 2013 ($1,000) and 26 July 2013 ($800). It is unclear why those payments were put into that particular account at those times.

89. I should also note at this point that the documents show that following the acquisition of the Property, a direct debit was put into place by the deceased to transfer money from his Westpac savings account (with a number ending in 6702) into his home loan account. In August 2013, the direct debit arrangement was altered, so that the money would be transferred from the Westpac savings account with a number ending in 5255. The direct debit amounts commenced at $930.46 per fortnight. The amounts were varied on a number of later occasions, including to $809.54 in September 2015, $1,000 in March 2016, and $500 per week in August 2017.

90. The documentary evidence that provides the most support for the plaintiff’s case is a residential tenancy agreement in respect of the Property, entered into on about 3 July 2017. That is about the time the plaintiff and his family moved to Queensland. The plaintiff is named in the agreement as a landlord, together with the deceased, although only the plaintiff appears to have signed the lease as landlord. More significantly, the agreement provided for the rent of $470 per week to be paid to the plaintiff, either by cash or by deposit into a nominated account held in the plaintiff’s name. There is evidence that, at least for about 5 months, amounts of $470 (or in one case $460) were regularly paid into an account held by the plaintiff with the National Australia Bank. For some reason, the account differs from that which had been nominated in the agreement.

91. The plaintiff deposed that he agreed to rent the house to the tenants without speaking to the deceased or the defendant about the matter. He further deposed that he then discussed the lease with the deceased, and said to him:

When they pay the rent, I need you to put the money straight into the home loan account.

It is difficult to reconcile that evidence with the evidence referred to above concerning the payment of rent into the plaintiff’s account.

123. In cross-examination, the plaintiff agreed that the deceased was present when the lease was signed. He explained that he needed to be there “to take the money and put it in the mortgage for me”. It was put to the plaintiff that it would have been logical for the lease to provide that the rent be deposited into the mortgage account. The plaintiff said (at Transcript 71 lines 25 to 29):

No. Where – they just mainly give cash. Because they worked cash basis. So it was easier for them. I don’t – but I think he did try to deposit in my account since I left Queensland for a few months. He deposited to my account. But then later I said give it to my dad. Because they – somehow they weren’t paying it. The mortgage.

124. It is likely that after about 5 months the tenants ceased paying the rent into the plaintiff’s account. Based on Ms Ave-Lee’s evidence, I think it is also likely that, from that point, the tenants paid the rent to her in cash, for her to pay to the landlord, and that she then paid that rent, together with her own rent, to the defendant.

125. In giving his evidence on this matter, the plaintiff appeared to be at pains to emphasise that the rent was to be paid into the mortgage account. However, the agreement that he signed, and the actual payment of rent, contradicts that evidence. Nonetheless, the fact remains that the signed agreement provided for the rent to be paid to the plaintiff, and that is evidence consistent with the notion that the Property, whilst held in the name of the deceased, was really owned by the plaintiff. Of course, that evidence has to be considered and weighed in the light of the evidence as a whole, including other evidence that tends to support the notion that the Property was beneficially owned by the deceased.

126. I give little weight to another lease agreement in evidence entered into by the plaintiff as landlord. This agreement is dated 25 May 2020, after the plaintiff and the defendant fell into open disagreement about the ownership of the Property, and after the plaintiff had begun paying money directly into the home loan account.

127. Other documents in evidence that touch upon the question of ownership include:

1. Council rate notices which, unsurprisingly, show the deceased as owner;

2. insurance policies where the named insured is the deceased and, after his death, the defendant;

3. Sydney Water bills in the name of the deceased; and

4. electricity bills in the name of the deceased.

128. There is evidence that the plaintiff or Stephanie Luu paid at least some of the water and electricity bills for the Property over the years. There is also some documentary evidence that one or other of them has paid Council rates, but no firm evidence that any such payments were made before 2020.

Determination

129. The plaintiff’s claim that the Property is the subject of a common intention constructive trust essentially rests upon the existence of the two oral agreements he alleges he made with the deceased. These are the alleged agreement to give $100,000 to assist the plaintiff to purchase a property, and the alleged agreement to purchase the Property and hold it for the benefit of the plaintiff, who would be responsible for all mortgage repayments and all outgoings and liabilities in respect of the Property.

130. In the absence of support from any documents that are contemporaneous with the acquisition of the Property, the claim rests heavily upon the testimony of the two witnesses called to directly support the existence of the agreements, namely, the plaintiff and Stephanie Luu. The claim thus confronts an immediate difficulty due to my adverse assessment of those witnesses, as described at [59]-[64] and [66]-[69] above, and my conclusion that, in general, the evidence of the defendant is much more likely to be reliable than that of either the plaintiff or Stephanie Luu (see at [71] above). It remains necessary, of course, to consider the entirety of the evidence that bears upon the events leading up to the acquisition of the Property, as well as the evidence of subsequent conduct in relation to the Property. Having undertaken that task, I find myself unable to accept the evidence of the plaintiff and Stephanie Luu as to the existence of the alleged agreements, and I am not persuaded that any such agreements were made.

131. I do not accept the evidence given by the plaintiff, and the evidence given by Stephanie Luu, concerning a conversation in which it was said by the deceased or the defendant that they wanted to help them buy a property and would give $100,000 for that purpose. Nor do I accept the evidence of the plaintiff concerning conversations with the deceased in which he spoke of putting his name on a mortgage, or having a property in his name, with the plaintiff responsible for payment of the mortgage and other outgoings in respect of the property.

132. In closing submissions, counsel for the plaintiff submitted that the alleged agreements should be found to have been made, particularly when regard is had to the defendant’s evidence that she could not trust the deceased with money. It was submitted that it defied logic that the defendant would be prepared to contribute funds for the purchase of a property that would be owned by the deceased, and that her evidence about believing that the deceased has changed his ways should be rejected. It was submitted that it was logical for the defendant to instead contribute funds for the purchase of a property that, although held in the deceased’s name, would be really owned by the plaintiff, who had a young and expanding family and a desire to own his own home.

133. However, that analysis seems to overlook the evidence, given by the plaintiff himself, of a strained relationship with the defendant ever since he was young, and the evidence of an incident in 2004 when the defendant accused the plaintiff of stealing money from the mortgage account for the Wakeley property. I do not accept that it would have been more logical for the defendant to contribute funds for the purchase of a property to be owned by the plaintiff, than to do so for the purchase of a property to be owned by the deceased. I accept her evidence to the effect that she was prepared to trust the deceased to that extent. As she said in cross-examination, she did not “give him any money to spend or do anything with it”. The $100,000 was contributed to the acquisition of the Property, as described above (at [112]).

134. That the defendant and the deceased were taking steps together to purchase a property gains some support from the documentary evidence. It appears that they both availed themselves of the services of Project Wealth before dealing with Westpac, and, as emphasised by counsel for the defendant, the deceased was described in his initial loan application as a borrower jointly with his spouse. I have already stated that it is likely that Mr Ly has forgotten about the involvement of the defendant. Further, I do not accept his evidence to the effect that the deceased told him that he wanted to help the plaintiff buy a property. I accept the defendant’s evidence about going with her husband to see about finance, even if that evidence is unclear as to whether she was referring to Project Wealth, Westpac, or both. I would add that the evidence of Mr Dang, to the effect that it was the defendant and her husband who made the request to inspect the Links Avenue property, further supports the notion that the defendant and the deceased were together taking steps to purchase a property.

135. The notion gains further support from the evidence concerning the auction. I accept the defendant’s evidence that she made bids at the auction on behalf of the deceased. I further accept her denial that the plaintiff was telling her what do. I prefer her evidence on this matter to that of the plaintiff, which was very confused. The plaintiff ultimately appeared to accept that it was the defendant who was doing the bidding, albeit that she was doing so on his instructions. I do not accept that suggestion.

136. I note that in closing submissions, counsel for the plaintiff pointed to part of an answer given by the defendant in cross-examination (at Transcript 325 line 39) where she spoke of the plaintiff setting up the price. It was submitted that this could mean that the plaintiff was defining the price for the purchase of the Property. However, the meaning of that part of the defendant’s answer is ambiguous, if not obscure, and it was not taken any further in the cross-examination.

137. The likelihood is that the defendant, who was about to contribute a substantial sum of money to her husband’s purchase of the Property if successful at the auction, was assisting him with the bidding. I also think it likely, as said by the defendant in the witness box, that she and her husband wanted the plaintiff there to help, particularly with any paperwork.

138. Aspects of the evidence of what occurred after the acquisition of the Property point in different directions. However, viewing the totality of that evidence, I do not think that it adds much weight to the plaintiff’s case, and certainly not enough to overcome the deficiencies in the case due to the problems inherent in the testimony of the plaintiff and Stephanie Luu, and the other witnesses called for the plaintiff (apart from Mr Dang). I note the following matters in particular in relation to the post-acquisition evidence.

139. If agreements had been made as alleged, the plaintiff would have been liable (as between himself and the deceased) to make all the mortgage repayments. It would be natural in those circumstances to make arrangements to facilitate the making of those payments by the plaintiff. Yet no steps were taken for the plaintiff to make payments into the home loan account, whether by a direct debit arrangement or otherwise. It would have been a relatively simple matter to do so.

140. The evidence, so far as it goes, shows that some payments were made from time to time by Stephanie Luu and the plaintiff into one of the deceased’s savings accounts. Those payments, which seem to have been made at irregular times, may have been made simply to meet obligations to pay rent or other outgoings in connection with their occupation of the Property.

141. I note that the plaintiff agreed in cross-examination that the sooner the granny flat works were completed the sooner the granny flat could be rented out. The cross-examination continued (at Transcript 60 lines 6 to 8):

Q.   And that was attractive to you because you knew that once the granny flat was rented out, the amount of rent you had to pay was going to be reduced.

A.   To help with the mortgage, yes.

That answer seemed consistent with the defendant’s case that the plaintiff and his family moved into the Property as tenants.

142. I also note that when the plaintiff was being asked about his involvement in the carrying out of the works, he gave an answer (at Transcript 60 lines 22 to 24) to the effect that he was working for his father. Again, the answer seemed consistent with the defendant’s case.

143. I have already referred to the evidence about the residential tenancy agreement entered into on about 3 July 2017 (see at [121]-[125] above). Whilst that agreement provides some support for the plaintiff’s case, it was made almost five years after the acquisition of the Property, and the evidence of Ms Ave-Lee seems to undercut the force of the evidence about rent being paid to the plaintiff.

144. Lastly, I generally prefer the evidence of the defendant and that of Van Hai Nguyen, over that of the plaintiff, concerning the circumstances in which the plaintiff and his family moved back into the Property in 2019.

145. For the above reasons, I am not persuaded that oral agreements were made as alleged by the plaintiff in relation to the gift of $100,000 or in relation to the acquisition of the Property for his benefit. Further, I am not satisfied that any common intention was formed between the plaintiff and the deceased as alleged. The plaintiff has failed to prove those matters on the balance of probabilities, as required by s 140 of the Evidence Act.

146. The plaintiff’s claim that the Property is the subject of a common intention constructive trust has not been made out. The alternative claim of an equitable charge similarly fails, due to the rejection of the factual underpinning of that case as pleaded.

147. The plaintiff’s resulting trust claim must also be rejected. The plaintiff did not contribute the sum of $100,000 towards the purchase of Property. No such sum was given to him for that purpose. Insofar as funds were provided for the acquisition of the Property apart from the proceeds of the loan from Westpac, it seems that they were largely, if not entirely, provided by the defendant who contributed at least the sum of $100,000.

148. It follows from the above that the proceedings must be dismissed. I think that it would also be appropriate to make an order requiring the plaintiff to withdraw his caveat (AQ418410) within 28 days. Costs should follow the event. Accordingly, the Court will order that the plaintiff play the defendant’s (that is, the first defendant’s) costs of the proceedings.

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Amendments

13 June 2023 - Typographical error corrected at [145].

Decision last updated: 13 June 2023