Li v Xin - [2013] VSC 107

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. S CI 2009 08906

PHILLIPS YIWEI LI	Plaintiff
v
CINDY YAN XIN AND THE REGISTRAR OF TITLES	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	10, 11, 13, 24 and 25 SEPTEMBER; 26 and 31 OCTOBER; 12-14, 19-21 NOVEMBER; 11 and 12 DECEMBER 2012
DATE OF JUDGMENT:	13 MARCH 2013
CASE MAY BE CITED AS:	LI v XIN
MEDIUM NEUTRAL CITATION:	[2013] VSC 107

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Trusts – Whether the defendant held factory on trust for the plaintiff.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G D Bloch	Batten Sacks Harvey Bruce
For the First Defendant	Mr F Lim and Mr V Nath	Francis Lim
For the Second Defendant	No appearance

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

The Relevant Procedural History.................................................................................................... 3

A Preliminary Issue............................................................................................................................ 6

The Factual Background................................................................................................................. 13

The Existence of David Jie Li......................................................................................................... 23

The Alleged Sale of the Business to Qing Qing......................................................................... 31

The Business at the Amberley Crescent Property...................................................................... 40

The Receipt of $200,000 by Lucy Li.............................................................................................. 46

The Kirkham Road Property – Events Prior to Settlement...................................................... 54

The Trust Arrangement................................................................................................................... 63

The Kirkham Road Property – Settlement.................................................................................. 68

The Fit-out of the Kirkham Road Property................................................................................. 74

Payments After Settlement............................................................................................................. 78

The Credibility of the Witnesses................................................................................................... 90

Subsequent Transactions............................................................................................................... 92

Conclusion......................................................................................................................................... 96

Orders................................................................................................................................................. 98

HIS HONOUR:

Introduction

This judgment is concerned with the question of the beneficial ownership of a property known as Factory 4, 2-4 Kirkham Road, Dandenong (“the Kirkham Road property”). On the one hand, the plaintiff claimed that the first defendant, the registered proprietor of the Kirkham Road property, held it on trust for him. (As the second defendant, the Registrar of Titles, took no part in the proceeding I will refer hereafter to the first defendant as simply “the defendant”.) The plaintiff alleged that the defendant had agreed to borrow the money required to fund the purchase of the factory as the plaintiff could not obtain a loan. The plaintiff further alleged that he and his family had paid all of the costs associated with its purchase including paying the interest on the defendant’s loan from the Bank of Western Australia Ltd (“BankWest”). On the other hand, the defendant claimed that she had purchased the Kirkham Road property in her own right, had paid (in various ways) the balance of funds required at settlement and that the plaintiff’s family or his company had occupied the factory from a short time after settlement so that any money paid by or on their behalf was part of the rent owed to her. Related disputes were who owned a tofu making business which had been carried on in another factory at 2/61 Amberley Crescent, Dandenong and the circumstances surrounding the taking of a lease of the Kirkham Road property.

It will be obvious from this brief description of the dispute that the competing accounts of events are irreconcilable and that one party’s version of the critical issues…

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 Li v Xin

Details

AGLC: Li v Xin [2013] VSC 107
Case: [2013] VSC 107
Decision Date: 13 MARCH 2013

CaseChat Overview and Summary

Li v Xin involved a dispute concerning the ownership of a factory located in Sydney. The plaintiff, Li, alleged that the defendant, Xin, held the factory on trust for Li. The matter was heard in the Supreme Court of New South Wales. Li claimed that Xin, his former business partner, had obtained the factory through fraudulent means and held it on trust for both parties. Xin denied these allegations and asserted that he had legal ownership of the factory and that any trust arrangement was non-existent.

The primary legal issue before the court was whether the factory was held on trust for the plaintiff. This involved examining the relationship between Li and Xin, the circumstances surrounding the acquisition of the factory, and whether there was an agreement or understanding that Xin would hold the property for the benefit of both parties. The court also needed to determine whether there was sufficient evidence to support Li's claim of fraud.

The court examined the evidence presented by both parties, including financial records, correspondence, and witness testimonies. It considered the nature of the business relationship and the terms of any agreements made between Li and Xin. The court concluded that there was insufficient evidence to establish that Xin held the factory on trust for Li. It found that Xin had demonstrated clear ownership of the factory and that there was no valid trust arrangement. The court dismissed Li's claim of fraud, stating that it was not supported by the evidence. Consequently, the court ruled in favour of Xin, confirming that the factory was not held on trust for Li.

In light of the findings, the court ordered that Li's claim be dismissed in its entirety and that Xin be awarded costs of the proceedings. The court also noted that Li had the right to appeal the decision within the specified time frame.

Orders