Li v Tao

Case [2023] NSWCA 310

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Li v Tao [2023] NSWCA 310
Hearing dates: 16 May 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Before: Ward P at [1]
Mitchelmore JA at [2]
Kirk JA at [3]
Decision:

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs.

Catchwords:

EQUITY — General principles and maxims — Conveyancing — Statute of Frauds — Part performance — High threshold for part performance — Equivocal factors for part performance — Many equivocal acts do not add up to an unequivocal act

EQUITY — Equitable interests in property — Property disputes — Assertion of legal ownership by trustee — Trusts and trustees — Evidence of trust — Where evidence of oral declaration of trust inadmissible under s 23C of the Conveyancing Act 1919 (NSW) — Doctrine in Rochefoucauld v Boustead — Doctrine not limited to where was a conditional assignment or written evidence prevented by fraud — Doctrine not limited to where property was assigned by claimant — Doctrine does not involve weighing up merits of conduct of parties

APPEALS — From finding of fact — Credibility of witnesses — Challenge to credibility finding not made out

Legislation Cited:

Conveyancing Act 1919 (NSW), ss 23B, 23C, 23D, 23E

Property, Stock and Business Agents Act 1941 (NSW)

Cases Cited:

Bahr v Nicholay [No 2] (1988) 164 CLR 604; [1988] HCA 16

Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56

Cadd v Cadd (1909) 9 CLR 171; [1909] HCA 59

Ciaglia v Ciaglia (2010) 269 ALR 175; [2010] NSWSC 341

Di Pietro v Official Trustee in Bankruptcy (1995) 59 FCR 470

Dunphy v Russell [2018] NSWSC 721

Last v Rosenfeld [1972] 2 NSWLR 923

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Maddison v Alderson (1883) 8 App Cas 467

Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25

Organ v Sandwell [1921] VLR 622

Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd (2003) ATPR (Digest) 46-242; (2004) Aust Contract R 90-181; [2003] NSWCA 305

Pipikos v Trayans (2018) 265 CLR 522; [2018] HCA 39

Rochefoucauld v Boustead [1897] 1 Ch 196

Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57

Wratten v Hunter [1978] 2 NSWLR 367

Young v Young (2014) 23 Tas R 76

Texts Cited:

D Heydon, MJ Leeming and PG Turner, Meagher Gummow & Lehane’s Equity: Doctrines and Remedies (5th edn, 2015, Butterworths)

PW Young, C Croft and ML Smith, On Equity (2009, Lawbook)

I Spry, The Principles of Equitable Remedies (9th edn, 2014, Lawbook)

James Williams, The Statute of Frauds Section 4 (1932, Cambridge University Press)

William Swadling, “The Nature of the Trust in Rochefoucauld v Boustead”, in C Mitchell, Constructive and Resulting Trusts (2010, Hart Publishing)

YK Liew, “Rochefoucauld v Boustead (1897)” in C Mitchell and P Mitchell, Landmark Cases in Equity (2012, Hart…

Continue reading Li v Tao

Sign in free to access the full text

Details
AGLC
Li v Tao [2023] NSWCA 310
Case
[2023] NSWCA 310
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Li (appellant) and Tao (respondent) regarding beneficial ownership of property. The primary judge had found that the respondent was the beneficial owner of the property, despite the appellant holding legal title. The appellant appealed this decision to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the respondent had established an equitable interest in the property, notwithstanding the absence of written evidence as required by section 23C of the *Conveyancing Act 1919* (NSW). This involved considering the application of the doctrine in *Rochefoucauld v Boustead* and the principles of part performance. The court also considered whether the primary judge’s findings of fact, particularly regarding witness credibility, were open to challenge.

The Court of Appeal affirmed the primary judge's decision, holding that the doctrine in *Rochefoucauld v Boustead* applied to the circumstances. This doctrine permits the enforcement of an oral declaration of trust over land where the legal title holder seeks to deny the trust, even if the declaration itself is inadmissible under the Statute of Frauds. The court found that the evidence established an intention by the respondent to create a trust, and the appellant’s subsequent conduct in asserting legal ownership to defeat that trust brought the doctrine into play. The court also found that the acts relied upon by the respondent were not merely equivocal acts of part performance, but rather evidence of the existence of the trust itself. The appellant’s challenge to the primary judge’s findings of fact and credibility assessments was unsuccessful.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.