Li v Xin - [2011] VSC 121

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2009 8906

PHILLIP YIWEI LI	Plaintiff
v
(CINDY) YAN XIN	First Defendant
and
THE REGISTRAR OF TITLES	Second Defendant

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 MARCH 2011
DATE OF JUDGMENT:	22 MARCH 2011
CASE MAY BE CITED AS:	LI v XIN
MEDIUM NEUTRAL CITATION:	[2011] VSC 121

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Trusts – Factory purchased in name of first defendant – Evidence that the property was held on trust for the plaintiff – Nothing paid by first defendant towards purchase of property – Refusal by first defendant to transfer property into plaintiff’s name – No appearance for first defendant at trial.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E.B. Bloch	Batten Sacks Harvey Bruce
For the First Defendant	No appearance
For the Second Defendant	No appearance

HIS HONOUR:

By a writ issued on 15 September, 2009, the plaintiff, Phillip Yiwei Li, sought relief against the first defendant, Cindy Yan Xin, with respect to a property known as Factory 4, 2-4 Kirkham Road, Dandenong South, being the land described in Certificate of Title, Volume 10968 Folio 923 (“the property”). The property is registered in the name of the first defendant and is subject to a registered mortgage in favour of the Bank of Western Australia Ltd (“Bankwest”). The plaintiff's claim is that the whole of the property is held by the first defendant on trust for the plaintiff.

Following service of the writ, the first defendant instructed solicitors and an appearance was entered and then a defence was filed. Following the filing of an amended statement of claim, an amended defence was filed. Then in November 2010 the solicitors acting for the first defendant filed a notice of ceasing to act. Nevertheless, orders were made prior to this matter coming on for hearing today concerning service of interlocutory orders and notification of the trial at the office of the solicitors formerly acting for the first defendant and at her last known address in Frankston. I am satisfied on the basis of the affidavit of service of Harvey Stephen Bruce, the plaintiff’s solicitor, affirmed on 16 March 2011, that the orders have been complied with and that the first defendant is therefore taken to have notice of the hearing today. However, she did not attend.

The second preliminary issue was one raised by Mr Bloch of counsel, who appeared for the plaintiff. He informed me that a title search of the property had revealed that a caveat had been lodged by someone known as Li Hua Li, claiming to be an equitable mortgagee. The issue was whether the hearing should proceed without Ms Li being notified or added as a party.

On the basis of oral evidence from Mr Bruce concerning a conversation that he had with Henley Wong, the solicitor for the first defendant, on 7 December 2010, I am satisfied that Ms Li, who is apparently the sister-in-law of the first…

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 [2011] VSC 121
Case: [2011] VSC 121
Decision Date: 22 MARCH 2011

CaseChat Overview and Summary

The case of Li v Xin involved a dispute over the ownership of a factory that was purchased in the name of Xin, the first defendant. The plaintiff, Li, alleged that the property was held on trust for them and sought to have the property transferred into their name. Xin did not appear at the trial and had not made any payment towards the purchase of the property. The court was required to determine whether the factory was held on trust for the plaintiff and whether the plaintiff was entitled to have the property transferred into their name. The court considered the evidence presented by the plaintiff and the absence of any evidence from the defendant to support their claim to ownership of the property. The court found that the property was indeed held on trust for the plaintiff and ordered that the property be transferred into the plaintiff’s name. The court also made orders for costs against the defendant. The reasoning of the court was based on the evidence presented and the failure of the defendant to provide any evidence to support their claim to ownership of the property. The court found that the evidence was sufficient to establish that the property was held on trust for the plaintiff and that the plaintiff was entitled to have the property transferred into their name. The court’s decision was based on the principles of equity and the trust relationship between the parties. The outcome of the case was a victory for the plaintiff, who was able to establish their claim to the property and obtain an order for the transfer of ownership.

Orders