Luong v Ty

[2006] NSWSC 644

CITATION:	Luong v Ty [2006] NSWSC 644
HEARING DATE(S):	15/06/06
JUDGMENT DATE :	29 June 2006
JUDGMENT OF:	Gzell J
DECISION:	Statement of claim to be dismissed.
CATCHWORDS:	EQUITY - Equitable Doctrines and Presumptions - Claim that property held in trust for plaintiff - Whether plaintiff contributed to purchase price - Question of fact - No principles involved
PARTIES:	Hong An Luong - Plaintiff Andrew Ty - Defendant
FILE NUMBER(S):	SC 3100/05
COUNSEL:	Ms E Cohen - Plaintiff Mr C M Simpson - Defendant
SOLICITORS:	Leverage Australia Solicitors Greg Alfonzetti Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 29 JUNE 2006

3100/05 HONG AN LUONG v ANDREW TY

JUDGMENT

1 A property in Concord was purchased in the name of the defendant, Andrew Ty. The moneys for the purchase passed out of the bank account of Hong An Luong, the plaintiff. Some moneys were paid into that account by Anthony Joseph Ansford. In his statement of claim, Mr Luong asserted that he paid the purchase price and rates and outgoings of the property, he sought a declaration that Andrew Ty held the property on trust for him and an order vesting the property in him in fee simple.

2 Subsequently, Mr Luong claimed a 50% interest in the property. Andrew Ty claimed that Dr Ansford purchased the property as a gift for him.

3 The limited issue identified by Ms Cohen, who appeared for Mr Luong, was whether his evidence or that of Dr Ansford should be accepted.

The initial affidavits of Mr Luong

4 In his first affidavit, Mr Luong said that he and his former wife Susan Luong moved from Brisbane to Sydney in late 2000. Before leaving Brisbane he sold two properties and deposited the moneys into his bank account.

5 He searched for premises in Sydney and found the Concord property for sale at $620,00.00. The contract for sale was in the name of Andrew Ty. Mr Luong paid the deposit of $62,000.00. He transferred $558,000.00 to an account in the name of Andrew Ty. He said that $310,000.00 came from Dr Ansford and Mr Luong would hold any beneficial interest in the property in trust for Dr Ansford in accordance with his contribution.

6 Mr Luong said he lived in the property with Susan Luong and Andrew Ty and paid the rates and outgoings. He said he was evicted from the property by Andrew Ty and thereafter separated from Susan Luong who commenced proceedings in the Family Court of Australia in February 2005. Those proceedings have been stayed pending the outcome of these proceedings.

7 Mr Luong said at no time did he intend to make a gift of the property to Andrew Ty. The purchase moneys were transferred to an account in the name of Andrew Ty because the property was to be purchased in his name.

8 Mr Luong swore a further affidavit in which he said that he paid for the purchase of the Concord property from proceeds of sale of a house at Wynnum and a house at Yeronga in Brisbane. The former sold for $163,000.00 and the latter for $185,000.00. He said Dr Ansford deposited $491,728.00 into his bank account as a repayment of moneys lent by Mr Luong over the years. Mr Luong used those moneys in part payment of the purchase price of the property at Concord.

The initial affidavit of Dr Ansford

9 Andrew Ty is the son of Susan Luong and a previous husband, Te Ty. Leonard Ty is Andrew Ty’s brother, and also the son of Susan Luong and Te Ty. Dr Ansford was married to Susan Luong in 1984. Andrew Ty was then about three years old and he lived with them until Dr Ansford and Susan Luong separated in about December 1990. Leonard Ty lived with his father in Sydney. Dr Ansford said that he and Susan Luong had regular contact with him.

10 Dr Ansford said he always regarded Andrew Ty, and continues to regard him, as his son. He had an extremely poor relationship with his own two sons. After Dr Ansford separated from Susan Luong, he continued regular contact with Andrew Ty both physically and by telephone. Dr Ansford paid for his education and supported him financially in other ways. He gave Andrew Ty $70,000 for a motor vehicle.

11 When Susan Luong commenced cohabitation with, and subsequently married Mr Luong, Dr Ansford said he continued to have a good relationship with Susan Luong and Andrew Ty and developed a good relationship with Mr Luong.

12 Dr Ansford retired in October 2000 and was paid over $700,000.00 in lump sum salary and superannuation. He said he was aware of Mr Luong’s intention to sell the Queensland properties and move to Sydney. Andrew Ty was then living in Sydney.

13 Dr Ansford set aside $450,000.00 of his funds in a term deposit to purchase a property in Sydney. He said that about the end of 2000, he had decided that he would apply those funds to purchase a property in Sydney and he would purchase the property in Andrew Ty’s name. He said he had intended to make substantial provision for Andrew Ty in his will. But he feared that if he did so it would be challenged by his sons. He decided to buy the property in Sydney for Andrew Ty while he was alive so that his sons would not challenge what would otherwise be Andrew Ty’s inheritance. Dr Ansford telephoned Andrew Ty and informed him of his plans. He said he had also thought about making provision for Leonard Ty but thought he was fairly well set up.

14 Dr Ansford said he told Mr Luong he was going to buy a property in Sydney in Andrew Ty’s name and that he had budgeted about $500,000.00 for the purchase and said that if he and Susan Luong could help Andrew Ty look for a suitable property he would be grateful.

15 Dr Ansford said he was informed by Mr Luong in late December 2000 or early January 2001 that they had found the Concord property. He was sent photographs and promotional material. He said he liked the property but was concerned at the additional cost and told Mr Luong so. Mr Luong said they had some money from selling the Queensland properties and could lend Dr Ansford some moneys in the short term.

16 Dr Ansford said he thought about this proposal and subsequently spoke with Mr Luong saying that he could only commit close to $500,000.00. Dr Ansford then proposed that if Mr Luong was prepared to lend him the rest of the purchase price without interest Mr Luong and Susan Luong could live in the property without paying any rent. Dr Ansford would pay all the rates and all the maintenance and repair costs, but the property was to be in Andrew Ty’s name and Andrew Ty was to be entitled to live there as well. Mr Luong agreed to the proposal, saying they needed a place to live and if later it did not work out and they needed the money to put into their own place, Dr Ansford could repay them.

17 Dr Ansford said he informed Mr Luong that most of his money was tied up until February 2001, to which Mr Luong responded that he could pay the deposit from his own account and the balance would not be needed until after February. Dr Ansford said he told Mr Luong to go ahead with it.

18 Dr Ansford said he telephoned Andrew Ty and explained that he was buying the property, that Andrew Ty’s mother and Mr Luong were going to help out with the balance and that Andrew Ty would have to agree to letting them live in the property without rent and Dr Ansford could worry about paying them back later when they needed money to buy their own property. He told Andrew Ty that he would pay all expenses.

19 Dr Ansford said that when his fixed deposit matured, he paid $458,000.00 into Mr Luong’s account at his request. He said he was then asked to pay into Mr Luong’s account a further $33,728.00, a total of $491,728.00.

20 Following completion of the purchase of the property in February 2001, Dr Ansford said it was occupied by Mr Luong, Susan Luong and Andrew Ty. He said he paid all council rates, water rates, insurance and all maintenance and repairs to the property. He said that some of these expenses were paid by Mr Luong but he reimbursed Mr Luong by making payments into his bank account.

21 Dr Ansford said that shortly after the Concord property was purchased, Mr Luong said that he was worried that Susan Luong and he were not employed in Sydney. Mr Luong asked Dr Ansford if he could repay some of the money each week. Dr Ansford said that he paid $200.00 per week and later $250.00 per week into the bank account of Susan Luong towards the repayment of the loan to him. Dr Ansford said he also paid varying amounts, but predominantly $200.00 at varying intervals, into Mr Luong’s Mastercard account with the Commonwealth Bank, primarily for the payment of maintenance and repairs on the Concord property.

22 After Mr Luong’s first departure from the Concord property following an altercation with Andrew Ty, Mr Luong telephoned Dr Ansford and said he could not live with Andrew Ty any more and that he and Susan Luong would buy their own house or a business and rent, and that he needed his money back. Mr Luong said there was about $135,000.00 still owing.

23 Later, Dr Ansford said he telephoned Mr Luong and said he thought he could get the money by taking out a mortgage on the Concord property. He asked Mr Luong if he was happy to take $135,000.00, otherwise Mr Luong would have to give some time to go through Dr Ansford’s records to work it out exactly. He said that he and Mr Luong agreed on the figure of $135,000.00 whether the actual figure was more or less.

24 Dr Ansford said that he arranged for Andrew Ty to be a co-borrower on the security of the Concord property for a loan of $250,000.00 and in February 2003 he provided Susan Luong with a cheque for $135,000.00 which she deposited into Mr Luong’s bank account.

25 Dr Ansford said that thereafter he made, and continues to make, all repayments with respect to the loan.

26 Dr Ansford denied Mr Luong’s allegation that the $491,728.00 was repayment of moneys lent by Mr Luong over the years.

Mr Luong’s reply

27 Mr Luong said he commenced living with Susan Luong in about 1991 and became friendly with Dr Ansford about the same time. He said that in about 1993, Dr Ansford said he was having a bit of trouble with the Australian Taxation Office. He had promised to pay them and he wondered if Mr Luong could lend him some money for about five years until he got his superannuation when he could repay Mr Luong with interest. Mr Luong said he had previously told Dr Ansford that he kept cash in the house as it made him feel secure.

28 In about 2002, Mr Luong said Dr Ansford telephoned him and said that he was having trouble with his tax, would Mr Loung bring him Susan Luong’s car so that he could sell it. Dr Ansford said he needed $25,000.00. Mr Luong said the car was not worth more than $10,000.00. He would lend $25,000.00 to Dr Ansford. Mr Luong said he gave a bank cheque for $25,000.00 to Susan Luong who flew to Queensland to give it to Dr Ansford.

29 Mr Luong said thereafter he started to give Dr Ansford loans of about $5,000.00 or $10,000.00 at a time. He said Dr Ansford kept a record of the loans in a small notebook. Dr Ansford wrote down each loan and showed it to Mr Luong. Mr Luong said that over about nine years he lent Dr Ansford $170,000.00. He said he made a further loan to Dr Ansford to resolve his tax problems of $25,000.00 and another loan in about 2003 of $5,500.00 after a break-in of Dr Ansford’s home.

30 Mr Luong said that prior to his marriage to Susan Luong and during the marriage he operated various businesses including a coffee shop and a butchery and was fairly successful in those businesses. He said that he purchased the Wynnum property prior to his marriage to Susan Luong and he paid off the mortgage on that property in 1996 when he sold his butcher’s shop. When the property was sold he said it was unencumbered.

31 In about 1997, the property at Yeronga was purchased in joint names and sold towards the end of 2000. From the sale of the two properties, Mr Luong said he had about $245,000.00 in cash.

32 Mr Luong said that when he found the Concord property he was aware that Dr Ansford was going to pay for half and put it in the name of Andrew Ty. He said he was to pay for the other half from the loans that were being repaid and from half of the proceeds from the sale of the Brisbane houses.

33 Mr Luong said he intended his interest to be registered but under pressure from Susan Luong he eventually agreed that the house be purchased in Andrew Ty’s name alone.

34 Mr Luong said that of the $491,728.00 sent to him by Dr Ansford, $310,00.00 was half the purchase price of the house and the balance was money owed to him with interest.

35 Mr Luong said the $135,000.00 given to him and Susan Luong was used to purchase a furniture business in Kingsgrove. The business failed and the money was lost.

36 Mr Luong said he did not receive statements for his Commonwealth Bank mastercard account. The statements were sent to Dr Ansford’s address. If Dr Ansford deposited moneys into that account he was not aware of that fact. Mr Luong said he paid around half of rates and outgoings and was not aware of any reimbursements by Dr Ansford.

37 Mr Luong said he was not aware that Dr Ansford was paying moneys to Susan Luong and he denied that he asked for the payments in reduction of any loan.

38 Mr Luong did receive $135,000.00, but he said it was a loan on the house for the purchase of a business and Dr Ansford kept the other half of the loan, although Mr Luong received more due to various adjustments in relation to a later loan and some of the other costs of the house purchase.

Dr Ansford’s response

39 Dr Ansford swore a further affidavit in which he denied much of the content of Mr Luong’s third affidavit.

40 Dr Ansford said he had no knowledge that Mr Luong kept cash in the house and denied borrowing moneys from Mr Luong.

41 Dr Ansford said he did not know why Mr Luong had arranged for his mastercard statements to be sent to Dr Ansford’s address. He said that much of Mr Luong’s mail was directed to his address. Dr Ansford said that Mr Luong was aware of the deposits to the mastercard account as they were made on Mr Luong’s instructions.

Cross-examination of Mr Luong

42 In cross-examination, Mr Luong said he first lent money to Dr Ansford in 1991 and not in 1993 as he said in his affidavits.

43 The income tax returns of Dr Ansford for the years in which Mr Luong said he had lent Dr Ansford money because he had problems with the ATO were put to Mr Luong. With one exception, they showed that Dr Ansford was entitled to tax refunds and owed no money to the ATO. Mr Luong maintained that Dr Ansford had told him he was having trouble with the ATO.

44 Mr Luong said the loan to Dr Ansford in 1991 was $40,000.00. He said Dr Ansford offered interest but he did not take it. There was no discussion of a rate of interest. Mr Luong maintained no records of the loans. Mr Luong said he regarded Dr Ansford as family. When asked what would happen if Dr Ansford died, Mr Luong responded that Susan Luong had witnessed each loan. This was the first mention of such events.

45 Mr Luong was questioned about his failure to produce his statement of affairs in his divorce proceedings in 1991 which, it was suggested by Mr Simpson who appeared for Andrew Ty, would reveal whether he had quantities of cash in his home. Mr Luong said he had forgotten the name of the solicitor who acted for him and could not contact her.

46 Mr Luong agreed that the Yeronga property was purchased for $164,000.00 with a mortgage of $73,000.00 in June 1992. It was put to Mr Luong that if he had cash at his home, he would have used it rather than pay non-deductible interest on the mortgage. Mr Luong responded that he had run out of money because he had lent his funds to Dr Ansford. When it was put to him that all he had lent was $40,000.00, Mr Luong said that a few months after that he lent him another $25,000.00.

47 Mr Luong was asked where the balance of the $170,000.00 came from between 1992 and 2002. He said in 1996 he had $120,000.00 from the sale of his butcher shop. He said he had no records in relation to this sale. It was put to him that one of the two income tax returns that he had not produced was for the ended 30 June 1995 and it was in that year that the butcher shop was sold. He said he could not remember. In fact the ATO confirmed that he had not lodged an income tax return for the 1995 year.

48 In May 1993, Mr Luong increased the mortgage on the Yeronga property from $73,000.00 to $100,000.00. Again it was put to him that there was no point in paying non-deductible interest if he had cash lying around the house. Mr Luong responded that he had borrowed to pay out his partner in the butcher shop. The mortgage over the Yeronga property was discharged in 1995 when he sold the butcher shop.

49 Mr Luong agreed that in January 1996 he purchased the Wynnum property for $139,000.00 with a mortgage of $100,000.00 at 10.5% per annum interest. It was put to him, again, that there was no point in paying non-deductible interest on a mortgage if he had cash available to him. He said he asked Dr Ansford to pay back the money he owed him, but Dr Ansford said he did not have money available at that time. Mr Luong had not mentioned this matter in any of his affidavits.

50 Mr Luong’s tax returns for the 1992-1994, 1996-1997 and 1999-2001 years were put to him. They showed modest levels of income, in some cases as wages of an employee. They were inconsistent with his claim that he operated businesses successfully. Mr Luong denied that his taxable income levels were inconsistent with an ability to make cash advances - $21,064.00 in 1992, $14,149.00 in 1993, $8,513.00 in 1994, $1,110.00 in 1996, $1.00 in 1997, $8,353.00 in 1999, $16,709.00 in 2000, $11,637.00 in 2001 and $9,157.00 in 2003.

51 Mr Luong was taken to his assertion that $250,000.00 was raised on the Concord property, half for him and half for Dr Ansford. Mr Luong changed the nature of that evidence. He said he had asked Dr Ansford to lend him money, which he did. He said he owed Dr Ansford $135,000.00. He said interest was not discussed because Dr Ansford already owed him many favours. He said he did not mention this in his affidavits because he was confused at the time.

52 There was no mention of a debt to Dr Ansford in Mr Luong’s financial statement filed in the Family Court in the proceedings with Susan Luong, the financial statement being supported by an affidavit sworn by Mr Luong.

53 In December 2000, Mr Luong made application for the mastercard with the Commonwealth Bank. It did not include as an asset, the $170,000.00 said to be owed by Dr Ansford.

54 Mr Luong freely conceded that he had been convicted of a criminal offence for soliciting a prostitute in a public place and for possession of a knife in a public place. I do not regard those convictions as bearing upon the determination of which of the evidence of Mr Luong or Dr Ansford should be accepted.

Cross-examination of Dr Ansford

55 Like Mr Luong, Dr Ansford fairly conceded that there was a police investigation into his signing blank forms at death for cremation permits. As with Mr Luong, I do not regard that matter as telling in the determination of which of the evidence of each should be accepted.

56 Dr Ansford said he was not in trouble with the ATO in the early 1990s, he did not borrow any money from Mr Luong and, in particular, he did not borrow $40,000.00 and $25,000.00. Nor did he tell Mr Luong that he had a tax problem. There was no tax investigation.

57 Since his retirement, Dr Ansford has returned to full time contractual work with Queensland Health and is now earning substantially more than he received from Australian Funeral while working as the director of forensic pathology with Queensland Health before his retirement and on a continuing basis since his retirement. Dr Ansford said that when he retired there was an arrangement for him to come back part time and he intended, ultimately, to move to Sydney.

58 When asked if he was going to Sydney, why did he put the house in the name of Andrew Ty, Dr Ansford said he regarded Andrew Ty as his son. He said he still regarded Susan Luong, Andrew Ty and Leonard Ty as his family.

59 Dr Ansford said the $491,728.00 that he put into Mr Luong’s bank account did not contain a repayment of any loans. He did not remember why there was an odd amount but Mr Luong had instructed him on the amounts to be paid. It was more convenient to pay the money to Mr Luong’s account as he was the person who was organising the transaction. He had experience and he was the one doing the legwork. Dr Ansford was to pay all the outgoings and that would be financed by his going back to work on a part time basis.

60 Dr Ansford denied that he kept any book of loans. He conceded that he had nothing in writing with respect to Mr Luong’s request to pay Susan Luong in reduction of the debt.

61 Dr Ansford agreed that he had $18,065.00 to pay to the ATO in 2002. He said he paid it in August of that year. He denied that he paid it from moneys lent to him by Mr Luong. In August 2002, he paid for a motor vehicle for Susan Luong. He denied that he wanted to sell it to pay tax.

62 Of the $250,000.00 that was borrowed, secured on the Concord property, Dr Ansford said the balance, after payment out of $135,000.00 to Mr Luong, was paid to Susan Luong to distribute to Andrew Ty and Leonard Ty. Dr Ansford said he was currently paying back the $250,000.00 loan from income he was earning.

63 It was pointed out to Dr Ansford that he continued to pay $200.00 per week to Susan Luong after payment of the balance of the loan of $135,000.00. The payments continued to December 2004. When this was pointed out to him, he said he must have overpaid. But this cross-examination was misconceived and Dr Ansford later corrected the position. The payments to which his attention was drawn for the purpose of the question were those made to Mr Luong’s mastercard account to reimburse outgoings on the Concord property. They were not the payments made to Susan Luong in reduction of the loan of the balance of the purchase price of the Concord property.

64 In re-examination, Dr Ansford said that he discharged the tax debt of $18,065.00 in 2002 from a loan from a friend in Brisbane.

Other evidence

65 Quoc Thang Luong, the brother Mr Luong, gave evidence that Mr Luong lent him $70,000.00 in 1989. He said that in 1991 he repaid $20,000.00 and a further $20,000.00 some three months later. Late in 1991 Mr Quoc Luong said that an agreement was reached whereby his parents would purchase the interest of Mr Luong and Susan Luong in a Marrickville property for $90,000.00. He said he gave his parents $20,000.00 and Susan Luong was paid $45,000.00 for her share in January or February of 1992. $25,000.00 was paid to Mr Luong during Easter of 1992 and during August of 1992 the balance of $20,000.00 was paid in each case in cash. Mr Quoc Luong said that he paid Mr Luong the remaining $30,000.00 of his $70,000.00 loan during winter of 1994.

66 There was some confusion in the evidence about the purchase of the Marrickville house. It was agreed that in 1992 the house was purchased from Mr Luong and Thoai Phung Tran for $165,000.00. Mr Luong’s father, Van Thiep Luong, purchased a half share and Mr Luong’s sister, Thi Kieu Oanh Luong, and her husband purchased the other half. In 1994, the sister and her husband transferred their share for $95,000.00 to Mr Luong’s mother, Thi Len Luong. The cross-examination of Mr Quoc Luong to the effect that Mr Luong was never on the title of the Marrickville property, was misconceived.

67 Lan Thi Vo gave evidence that she worked as the housekeeper to Mr Luong and Susan Luong from late 1991 until 1999. She said she became close to both and was introduced to Dr Ansford as an old family friend. She said on one occasion during 1993 she was serving coffee and saw Mr Luong hand over to Dr Ansford a large bundle of $50 notes tied together with a rubber band.

68 On another occasion she said she heard Mr Luong say: “Sue can you go and bring me my brief case I need to give Anthony some money.”

69 On another occasion she said that she accompanied Susan Luong to Dr Ansford’s office in the Mount Gravatt area of Brisbane and when they arrived Susan Luong asked her to wait in the car and said: “I won’t be long, Andy’s asked me to give Anthony some money.”

70 It was put to Ms Vo that she had been accused of stealing a bracelet from Susan Luong and she had been sacked. She denied this proposition. She said she lent money to Susan Luong and Susan Luong promised that she would help her and her husband acquire the property at Yeronga at a low price. Susan Luong did not do so.

71 When she was contacted and asked to swear an affidavit, Ms Vo was reminded that she was present when money was given to Dr Ansford.

72 Susan Luong said that before they moved to Sydney she engaged in prostitution, initially suggested by Mr Luong, and gave him the money she was paid. She said, however, that she never saw Mr Luong with amounts of cash as much as $5,000.00 to $10,000.00. She said she never heard Dr Ansford ask for loans or say that he had a problem with the ATO.

73 Susan Luong said she never heard either Dr Ansford or Mr Luong speak of any money being given by Mr Luong to Dr Ansford, nor did see any money given to him. She said she never spoke to Dr Ansford or Mr Luong about the sale of her car and she was never given, nor did she take, a bank cheque for $25,000.00 to Queensland.

74 When Susan Luong and Mr Luong were discussing moving to Sydney, she said Dr Ansford spoke to her about purchasing a property for Andrew Ty. She said she was present when Mr Luong informed Dr Ansford of the Concord property and that he would need to move fast and that he, Mr Luong, could put the deposit down to secure the property so Dr Ansford could get it and could sort it out with Mr Luong later.

75 Susan Luong denied that she put pressure on Mr Luong to have the Concord property registered in the name of Andrew Ty. As to the $135,00.00, she said that it was either sent or handed to her to deposit, and she deposited it to the account of Mr Luong.

76 Susan Luong said that about three months before moving to Sydney she discovered a gold bracelet missing. She had found other items missing before. She spoke to Ms Vo and said to her: “Do you know what has happened to my bracelet”. Ms Vo said “I don’t”. Susan Luong said an argument then ensued and she told Ms Vo not to come any longer.

77 Susan Luong never observed Mr Luong hand a bundle of $50 notes to Dr Ansford. She was never asked to bring a briefcase to give Dr Ansford money. Nor was there an occasion when she said to Ms Vo that she had been asked to give Dr Ansford money.

78 Susan Luong said that Dr Ansford telephoned every day and he was friendly with Mr Luong.

79 Susan Loung was cross-examined about the funds given to her by Dr Ansford when the Concord property was mortgaged to be distributed as he requested. She said she gave Leonard Ty around $60,000.00, she gave Andrew Ty $11,000.00 and $3,500.00 in cash, a further $12,000.00-$13,000.00 was paid into Andrew Ty’s account and $6,000.00 was spent on the purchase of furniture. She said she did not return any of the money to Dr Ansford, nor did she keep any of the money for herself.

80 Susan Luong operated a number of bank accounts. She was cross-examined about deposits and withdrawals. Some of the deposits came from Dr Ansford. A deposit of $20,000.00 was, she said, a loan from Andrew Ty. In April 2003, $20,000.00 was spent. When Susan Luong was cross-examined as to the components of this expenditure she could not recall on what items the moneys were spent.

81 There were smaller deposits on a regular basis of $250.00 about which Susan Luong was asked. She said each week she gave Mr Luong $200.00 in cash from the deposits made by Dr Ansford and she continued to do this until he left the Concord property. The rest was for housekeeping.

82 A later deposit of $25,000.00 from Dr Ansford was distributed to sources as he requested with $12,000.00 odd that might have been used for interior decorating.

83 Susan Luong’s credit card with the National Australia Bank was sometimes paid by her and sometimes by Dr Ansford. She said that both she and Mr Luong used the credit cards and all mastercard statements were opened by Dr Ansford and paid by him. She said the $20,000.00 loan from Andrew Ty was repaid from moneys provided to her by Dr Ansford.

84 Susan Luong said her claim to property settlement in the Family Court was based upon her analysis of her share of the moneys from the sale of the Brisbane properties of $390,000.00. She asked Mr Luong for $200,000.00 before they left Brisbane but he became abusive and would not give her any.

85 Andrew Ty gave evidence. He said the decision to purchase the Concord property in his name was made by Dr Ansford. He said so far as the payment of the deposit by Mr Luong was concerned, he understood that to be by way of loan from Mr Luong to Dr Ansford on his behalf.

86 Andrew Ty said that during the time that he lived and grew up with his mother and Dr Ansford, he developed a very close relationship with Dr Ansford and regarded him as a father. He said Dr Ansford raised him as his own son. He provided financial and emotional support and assisted him in relation to his schooling. He said that since the separation of Dr Ansford and his mother he maintained a very close relationship with Dr Ansford. Dr Ansford continued to provide him with emotional and financial support and paid for all his education expenses even during the time he was living in Sydney.

87 Andrew Ty said he had always maintained regular telephone contact with Dr Ansford and would visit him and spend time with him whenever he returned to Queensland. He said he had little relationship with Mr Luong and had no real relationship with him after he moved from Brisbane to Sydney at the age of 14. He said that Dr Ansford had often said to him: “You’re a better son to me than my own sons have been. They’re not interested in being in contact with me at all.”

88 Towards the end of 2000, Andrew Ty said that Dr Ansford in telephone conversations said: “I’ve put some money aside from my retirement and I am planning to buy a property in Sydney in your name. If I bought a property in my name I would leave it to you in my will anyway, but if I do that my sons can contest the will and I don’t want there to be any interference with what I plan to provide for you. I thought about making some provisions for your brother Leonard but he seems to be already set up with a property. I’d like to give you a head start.”

89 Just before the purchase of the property, Andrew Ty said that Dr Ansford told him in a telephone conversation that he had decided to buy the property. He said it was more than he wanted to spend, but he had decided to buy it anyway. He said that Susan Luong and Mr Luong were going to put in the difference. Dr Ansford said that he had told them they could live in the property with Andrew Ty and Dr Ansford could make arrangements to pay them back later when they wanted to buy their own property. Dr Ansford said that while they were living at Concord, they would not be paying any rent but he would pay all rates and other expenses.

90 The property was purchased for $643,938.53 made up as follows:

Deposit	$ 62,000.00
Balance of purchase price	$558,548.53
Stamp Duty	$ 23,390.00
$643,938.53

91 Andrew Ty applied for and received a first homeowner’s grant of $7,000.00. $6,000.00 was paid as the balance outstanding for a new kitchen at the Concord property and the remaining $1,000.00 was withdrawn in cash for a new kitchen stove to be delivered to the property.

92 About the end of 2002, Andrew Ty heard his mother and Mr Luong arguing. He said he saw Mr Luong pushing his mother up against the glass sliding door. A verbal altercation took place and he told Mr Luong to leave his house and that he would call the police if he came back.

93 Andrew Ty said that in early 2003, Dr Ansford telephoned him to say that his mother and Mr Luong wanted their money back, that he had come to an agreement with them to pay $135,000.00, and he had asked Leonard Ty to help organise a loan on the house. Dr Ansford said that because Andrew Ty was the owner of the property he would have to go on the loan. But Dr Ansford said he would go on the loan as well and make all repayments.

94 Andrew Ty said that his mother said she wanted to save her marriage and asked him if Mr Luong could come back to the house. He agreed. Andrew Ty then decided that he would leave and he went to stay with his father. Mr Ty said that Mr Luong returned to the Concord property and remained there until about October 2004 when he and his mother separated.

95 In cross-examination, Andrew Ty was asked about deposits and withdrawals from his bank account. He said he lent his father money that came from Dr Ansford and his father subsequently paid him back. He maintained that the house was solely his as his inheritance and that Mr Luong and Susan Luong could live there until they found a house of their own. He said when he moved out of the Concord property he was living at a more convenient base for his work as a police officer. He never made any repayments on the loan on the house. Dr Ansford said he would pay all the outgoings.

96 Andrew Ty said he performed shift work sometimes up to 12 hours and where he lived was five minutes drive from the police station.

Resolution

97 It was submitted that Mr Luong’s evidence was plausible. He felt comfortable with a lot of cash. Susan Luong confirmed that she paid Mr Luong in cash. But they were small amounts and she also said that she never saw amounts of the order of $5,000.00 or $10,000.00 in the house.

98 It was submitted that Susan Luong confirmed that when the properties in Queensland were sold, there was $390,000.00 of which she thought she was entitled to $200,000.00. Mr Luong thus had the funds to purchase a property in Sydney. It was not in question, however, that Mr Luong had the funds to pay the balance of the purchase price of the Concord property. The question is whether he lent those funds to Dr Ansford or invested them in the property.

99 It was submitted that the odd amount paid by Dr Ansford suggests that there was some repayment of loan involved. The total purchase price was $643,938.53. Dr Ansford contributed $491,728.00 giving a difference of $152,210.00. But in addition to making the payment of $135,000.00, Dr Ansford paid $200.00 and later $250.00 a week for a 12 month period in reduction of the loan. If one works on a mean of $225.00 per week there is a further $11,700.00. There is not a huge difference between the total of these amounts, $146,700.00 and $152,210.00. Particularly is this so when Mr Luong and Dr Ansford agreed on the figure of $135,000.00 on the basis that the actual figure might be more or less.

100 It was submitted that if Dr Ansford intended to make a gift of the property to Andrew Ty, the moneys would have been paid into his bank account and not into Mr Luong’s bank account. But Dr Ansford said he paid the moneys into Mr Luong’s account because he was the man on the ground doing the legwork and organising the transaction.

101 It was submitted that there were conflicts in the evidence of Dr Ansford and Susan Luong. He said he drew the cheque for $135,000.00 for Mr Luong. She said she got all the money and she did not know what she did with the balance. But Susan Luong explained, although not entirely, the distribution of the moneys between Andrew Ty, Leonard Ty and the purchase of furniture for the Concord house. That accords with Dr Ansford’s evidence that he provided her with the balance of the funds with instructions to distribute it between Andrew Ty and Leonard Ty.

102 It was submitted that Dr Ansford did have a tax problem. He had $18,065.00 to pay in the middle of 2002. But that does not support Mr Luong’s claim of earlier and later requests for loans to pay the ATO when there was no money owed to the ATO. And Dr Ansford explained that he borrowed the $18,065.00 from a friend in Brisbane.

103 It was submitted that Dr Ansford could hardly earn sufficient to pay rent, look after himself and pay the outgoings on the Concord property and the reductions in the mortgage. No figures were put to Dr Ansford and he said that he had returned to full time work and was earning more than he had at the funeral parlour.

104 It was suggested there was no explanation for Dr Ansford’s payment of $70,000.00 to Mr Ty for a motor vehicle and payment for his education. But, again, there was no cross-examination nor evidence led to suggest that Dr Ansford lacked the capacity to make these payments.

105 Similar observations apply to the criticism that Dr Ansford paid credit card accounts. It was submitted that his version should not be accepted by reason also of his continued payment of moneys to Susan Luong after the debt had been discharged by payment of the $135,000.00. That submission is misconceived. The payments in question were those in reimbursement of outgoings on the Concord property paid to the mastercard account of Mr Luong and not to Susan Luong.

106 It was submitted that there was only one independent witness in the proceedings and that was Ms Vo the housekeeper. But there was a breakdown in the relationship between Ms Vo and Susan Luong. On any view of her evidence and that of Susan Luong, Ms Vo was disappointed that Susan Luong did not organise for Ms Vo and her husband to acquire the Yeronga property at a low price. I do not regard Ms Vo as a witness without interest in the outcome of the proceedings. I do not accept that her evidence corroborates Mr Luong’s evidence that he made cash loans in large amounts to Dr Ansford.

107 On the other hand it was submitted that Mr Luong had made significant changes to his evidence. In his statement of claim he maintained that he paid the entire purchase price for the Concord property. Then he claimed that the entire contribution of $491,728 by Dr Ansford was a loan repayment. He said that the $250,000.00 was a loan raised equally between him and Dr Ansford. That would mean, of course, that he had an obligation with respect to mortgage payments. For the first time in cross-examination he said it was a loan from Dr Ansford. But no mention of this appears in his financial statement in the Family Court. Nor in his application to the Commonwealth Bank for his mastercard did he list as an asset the $170,000.00 he said was owed to him by Dr Ansford.

108 Mr Luong’s financial statement to the Family Court was sworn. There was sworn testimony before me that the debt of $135,000 to Dr Ansford existed. The statements are inconsistent. One of them must be wrong.

109 Mr Luong had said his loans to Dr Ansford commenced in 1993. Then, for the first time in cross-examination, he said he made a loan of $40,000.00 to Dr Ansford in 1991. Still later in cross-examination, he said for the first time that he made a further loan of $25,000.00 to Dr Ansford a few months later.

110 When asked about the mortgage on the Wynnum property of $100,000.00, Mr Luong said, again for the first time, that he had asked Dr Ansford for repayment of his loans but he was unable to do so.

111 It is highly unlikely that Mr Luong would rely on Dr Ansford to document the loans. When pressed with what would occur if Dr Ansford was suddenly killed, Mr Luong, for the first time, asserted that Susan Luong had been present on each occasion a loan was made. She denied that she was present on any occasion when cash was advanced to Dr Ansford.

112 If Mr Luong had, as he claimed, substantial sums of cash available to him, it is highly unlikely that he would have borrowed $73,000.00 on the Yeronga property and increased that borrowing to $100,000.00, rather than use the cash. There was no advantage to him by way of an income tax deduction for the payment of interest on a borrowing for a private residence. And the same applied to the $100,000.00 mortgage on the purchase of the property at Wynnum.

113 In those circumstances, and having regard to the minimal earnings that his tax returns reveal, there is, as was submitted, an inherent improbability in Mr Luong having the ability to make advances of $170,000.00 as he claimed. Furthermore, the absence of debts owed to the ATO by Dr Ansford except for the $18,065.00, makes it unlikely that he would have asked for loans to pay tax.

114 Dr Ansford was an impressive witness. He was precise in his answers, clarifying an earlier mistake he made with reference to the two sets of regular deposits of $200.00 or $250.00, the one to Susan Luong and the other to the mastercard account of Mr Luong.

115 And Dr Ansford’s evidence was corroborated by Andrew Ty and by Susan Luong, both of whom appeared to me to be endeavouring to answer the questions put to them honestly.

116 The preponderance of the evidence favours the version of events given by Dr Ansford and when that is weighed against the lack of any document supporting Mr Luong’s claims, the implausibility of his version of events and the manner in which he changed his evidence lead me to prefer the evidence of Dr Ansford to that of Mr Luong. By so doing, I reject the evidence of Ms Vo.

117 In the result, therefore, I find that Mr Luong made no loans to Dr Ansford, save for the balance of the purchase price for the Concord property. I find that Dr Ansford purchased the property as a gift to Andrew Ty and the challenge to his registered proprietorship of the property fails. I will dismiss Mr Luong’s statement of claim. I will hear the parties on costs. I direct the parties to bring in short minutes of orders reflecting these reasons.

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