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Liu v Wang

Liu v Wang

Case [2024] NSWSC 697 30 May 2024

Civil Litigation & Procedure

Equity

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Supreme Court

New South Wales

Medium Neutral Citation: Liu v Wang [2024] NSWSC 697
Hearing dates: 16 and 30 May 2024
Decision date: 30 May 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
(1) Judgment for the plaintiff in the sum of $418,328.43.
(2) Statement of claim otherwise dismissed.

Catchwords:
CIVIL PROCEDURE — Application for leave to reopen — Where application to reopen made at time of judgment — Where applicant made a conscious decision not to bring forward certain evidence — Where evidence not probative
EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another’s property — Intention — Where defendant had an obligation to repay money — Whether money extended was a loan or a contribution which entitled the plaintiff to an equitable charge
EQUITY — Defences — Illegality — Where no defence raised — Where Court raised issue of Foreign Acquisitions and Takeovers Act 1975 (Cth) — Whether declaration should be refused in circumstances where the issue of statutory illegality arose

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56-60
Foreign Acquisitions and Takeovers Act 1975 (Cth) ss 4, 12, 45, 47, 49, 81, 84, 94
Foreign Acquisitions and Takeovers Regulation 2015 (Cth) regs 19, 52
Uniform Civil Procedure Rules 2005 (NSW) rr 2.1, 14.3, 29.5

Cases Cited:
Chalmers v Pardoe [1963] 1 WLR 677
Delaforce v Simpson-Cook [2010] NSWCA 84
Elite Realty Development Pty Ltd v Sadek [2022] NSWSC 1333
Giumelli v Giumelli (1999) 196 CLR 101
Huang v Fu [2011] NSWSC 316
Macdonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612
Meshumar v Otmy (2018) 97 NSWLR 615
Morris v Morris (1982) 1 NSWLR 61
Nelson v Nelson (1995) 184 CLR 538
Quality Bakers Australia Pty Ltd v Yassin Modern Bakery Pty Ltd (t/as Yassin Lebanese Bakery) [2007] NSWSC 804
Re Central Management (NSW) Pty Ltd (in liq) [2017] NSWSC 1258
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Roberts v Investwell Pty Ltd (in liquidation) [2012] NSWCA 134
Shaw (as liquidator of ACN 166 338 138 Pty Ltd (in liq) (formerly Structural Projects Pty Ltd) v KPR Recruitment Australia Pty Ltd (No 2) [2017] NSWSC 707
Sheikholeslami v Tolcher [2011] FCA 1050
Sneddon v New South Wales [2012] NSWCA 351
Szetu v Situ (No 2) [2019] NSWSC 1312

Category: Principal judgment
Parties: Shouping Liu (Plaintiff)
Wei Ming Wang (Defendant)
Representation:
Counsel:
16 May 2024
N Kabilafkas, H Zhao (Plaintiff)

30 May 2024
M Condon SC, H Zhao (Plaintiff)
Solicitors:
Juris Cor Legal (Plaintiff)

File Number(s): 2023/00419527
Publication restriction: Nil

ex tempore JUDGMENT (revised)

The defendant, Wei Ming Wang, is the sole registered proprietor of a property in Zetland. The plaintiff, Shouping Liu, claims to have an equitable interest in the property by way of an equitable charge, because she advanced money towards the purchase of the property and Wang made various alleged promises to her.
At the commencement of the hearing, Liu abandoned claims for the alleged breaches of trust concerning Wang’s…

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 Liu v Wang

Details

AGLC: Liu v Wang [2024] NSWSC 697
Case: [2024] NSWSC 697
Decision Date: 30 May 2024

CaseChat Overview and Summary

In the case of Liu v Wang, the dispute involved a claim for an equitable charge over a property, and a subsequent application for leave to reopen the proceedings. The case was heard in the Federal Court of Australia. The plaintiff, Liu, sought to establish an equitable charge over a property owned by the defendant, Wang, based on a contribution made towards the acquisition of the property. Liu also applied for leave to reopen the proceedings to present additional evidence, which the court had to consider in light of the arguments regarding the admissibility and relevance of the evidence.

The court was required to decide several legal issues. First, whether the additional evidence presented by Liu was admissible and relevant to the claim for an equitable charge. Second, the court had to determine whether the money extended by Liu to Wang was a loan or a contribution, which would entitle Liu to an equitable charge. Third, the court considered whether the claim should be dismissed on the basis of statutory illegality, specifically under the Foreign Acquisitions and Takeovers Act 1975 (Cth), an issue that was not raised by the defendant but was brought up by the court.

The court found that Liu's decision not to present certain evidence at the time of judgment was a conscious one, and the evidence in question was not probative. Consequently, the application for leave to reopen was dismissed. Regarding the equitable charge, the court concluded that the money extended by Liu was not a contribution that entitled Liu to an equitable charge, but rather a loan. Finally, the court determined that the issue of statutory illegality did not warrant refusing the declaration sought by Liu. The court found that the claim did not contravene the Foreign Acquisitions and Takeovers Act 1975 (Cth), and therefore the application for a declaration was not refused on this basis.

The final orders of the court were that Liu's application for leave to reopen was dismissed, and the claim for an equitable charge was dismissed. The court did not refuse the declaration sought by Liu on the basis of statutory illegality, and Liu was not granted the equitable charge over the property.

Orders