Lioe v Davidson - [2019] NSWSC 721

Supreme Court

New South Wales

Medium Neutral Citation: Lioe v Davidson [2019] NSWSC 721
Hearing dates: 12 and 13 June 2019
Date of orders: 13 June 2019
Decision date: 13 June 2019
Jurisdiction: Equity
Before: Pembroke J
Decision:
Judgment for plaintiff

Catchwords: EQUITABLE CHARGE – imposed to secure repayment of indebtedness – principles applicable – flexible
Cases Cited: Tadrous v Tadrous [2012] NSWCA 16
Category: Principal judgment
Parties: Rita Lestari Lioe – plaintiff
Leonard Davidson – first defendant
Lelly Mariana Purwa – second defendant
Representation:
Counsel:
Mr V Bedrossian with Ms A Smith – for the plaintiff
Mr S O’Brien with Mr C Street – for the first and second defendants
Solicitors:
Kydon Segal Lawyers – for the plaintiff
Fusion Legal – for the first and second defendants

File Number(s): 2018/296907

Judgment

Introduction

The plaintiff claims an order for the repayment of approximately $280,000 plus interest together with an equitable charge to secure that sum over an apartment property at Zetland. The registered proprietor of the property is the first defendant. The second defendant is his mother. There is no dispute about the amount of $96,893.62. The defendants consented to judgment in that amount on the first day of hearing without prejudice as to their submissions as to interest or the claimed equitable charge.
The remaining factual dispute relates to whether there has been satisfactory proof that the plaintiff paid the balance of the moneys to the defendants, or one of them. For reasons that I will explain, I am quite satisfied, whatever the amount, that the known or agreed purpose of the payments by the plaintiff was to assist directly or indirectly with the purchase and possibly the maintenance, of the Zetland property. I am satisfied that the first defendant knew of that purpose.
There were only two satisfactory witnesses. They were Mrs Rosemary Tang and her daughter, Elena Loh. They had no financial interest in the outcome and were clearly independent. Both were articulate and intelligent. I thought both were entirely honest and credible. Their evidence, taken together with the proved facts and the sequence of events, is decisive in determining what is more likely than not, having regard to the realistic probabilities. They support the plaintiff's claim. It is not possible to discount or disregard their evidence on any logical or reasonable basis.

The Plaintiff

The plaintiff was unsatisfactory, partly because she is elderly and was frequently confused and sometimes inconsistent. Her ability to communicate in English was poor. Her memory was not reliable and she did not understand many of the questions. She has experienced significant hardship and is entitled to sympathy for the tribulations which she has endured. Even making reasonable allowances for all of these matters, I could not be satisfied on her evidence alone of all of the payments for which she contended. Ultimately I have concluded that the core of the plaintiff's evidence should be accepted, not so much because of what she said but because of what the second defendant admitted.…

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 Lioe v Davidson

Details

AGLC: Lioe v Davidson [2019] NSWSC 721
Case: [2019] NSWSC 721
Decision Date: 13 June 2019

CaseChat Overview and Summary

The case of Lioe v Davidson involved a dispute concerning the imposition of an equitable charge to secure repayment of a debt. The parties were Lioe, the plaintiff, and Davidson, the defendant. The court had to determine whether the equitable charge imposed by the defendant was valid and enforceable against the plaintiff. The case was heard and determined in the Supreme Court of New South Wales.

The central legal issue was whether the equitable charge imposed by the defendant was valid and enforceable, given the principles governing such charges. Specifically, the court needed to assess whether the charge was imposed to secure repayment of a debt, and if it complied with the principles applicable to equitable charges. The court had to consider the nature of the charge, the circumstances in which it was imposed, and whether it met the necessary legal criteria.

In reaching its decision, the court examined the principles applicable to equitable charges, noting that they are flexible and context-dependent. The court concluded that the equitable charge in question was valid as it was imposed to secure repayment of a debt. The court found that the principles governing equitable charges were satisfied in this instance, leading to the conclusion that the charge was enforceable. The court's reasoning reflected the flexible nature of the principles applicable to equitable charges, which allows for a context-specific assessment.

The final orders of the court were that the equitable charge imposed by the defendant was valid and enforceable against the plaintiff. The court's decision provided clarity on the principles governing equitable charges, affirming their flexibility and context-dependent application.

Orders