Ly v Ly - [2012] NSWSC 643

Supreme Court

New South Wales

Medium Neutral Citation: Ly v Ly [2012] NSWSC 643
Hearing dates: 29 May 2012
Decision date: 29 May 2012
Before: Rein J
Decision:
1. Defendant holds his 30% interest in the property at Canley Heights on trust for the plaintiff.
2. Plaintiff to reimburse the defendant in the sum of $8000.
3. Defendant to pay 80% of the plaintiff's costs as assessed or agreed.
4. Amount of $8000 due from the plaintiff to the defendant to be offset against the costs assessed as payable by the defendant to the plaintiff.

Catchwords:
EQUITY - trusts and trustees - implied trusts - constructive trusts - where co-owner of a property fails to contribute to mortgage repayments and other necessary expenses - that co-owner holds his interest in the property on constructive trust for the co-owner who has made those payments

REAL PROPERTY - general principles - incidents of estates and interests in land - joint tenancy and tenants in common - where beneficial to first co-owner that the second co-owner vacate the property - allowance should be made for notional rent that first co-owner would have paid
PROCEDURE - judgments and orders - satisfaction and set-off of judgments - where defendant has indicated that he has no money to pay any amounts sought from him - plaintiff entitled to have her judgment debt to the defendant set-off against the costs order in her favour
Cases Cited: Luke v Luke (1936) 36 SR (NSW) 310
Muschinski v Dodds (1985) 160 CLR 583
Ryan v Dries [2002] NSWCA 3
The State of Western Australia v Bowman (Supreme Court of Western Australia, Sanderson M, 11 November 1997, unreported, BC9706022)
Category: Principal judgment
Parties: Kim Soy Ly (Plaintiff)
Kim Tap Ly (Defendant)
Representation: Kim Soy Ly (Plaintiff in person)
Kim Tap Ly (Defendant in person)

File Number(s): SC 2011/263671

ex tempore Judgment

Miss Kim Soy Ly ("Miss Ly"), the plaintiff, and Mr Kim Tap Ly ("Mr Ly"), the defendant, are sister and brother. They purchased a property in Canley Heights ("the Property") for $295,000 as tenants in common in November 2006, with Miss Ly having a 70 per cent share and Mr Ly having a 30 per cent share interest in the Property.

The Bank of Adelaide loaned Miss Ly and Mr Ly $284,949.69 for the purchase and they agreed to repay the loan with interest and to grant a mortgage. Miss Ly paid an amount of $14,750 toward the purchase price and the cost of the purchase and a first home owner's grant of $7000 was applied to the cost of purchase as well.

Miss Ly claims that since the purchase Mr Ly has only ever paid $10,850 towards the loan repayment and other expenses. It was at the time of purchase envisaged by the parties that they would live in the house together with their mother.

Miss Ly claims that the defendant holds his 30 per cent interest as constructive trustee for her…

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 Ly v Ly

Details

AGLC: Ly v Ly [2012] NSWSC 643
Case: [2012] NSWSC 643
Decision Date: 29 May 2012

CaseChat Overview and Summary

In the case of Ly v Ly, the parties involved were Ly, the plaintiff, and Ly, the defendant. The dispute centred on the ownership of a property held jointly between the parties, with the plaintiff seeking to have her interest recognised as free from any obligations to the defendant. The matter was heard in the Supreme Court of New South Wales. The plaintiff claimed that she was entitled to have the property recognised as held on constructive trust for her benefit, due to her contributions towards the mortgage and other necessary expenses, while the defendant had not contributed. The court was required to determine whether the plaintiff's contributions justified the imposition of a constructive trust and, if so, the extent of the plaintiff's interest in the property.

The legal issues before the court involved the interpretation of the nature of joint tenancy and tenants in common, as well as the principles of equity that may give rise to a constructive trust. Specifically, the court had to determine whether the plaintiff's contributions to the mortgage and other expenses were sufficient to warrant the imposition of a constructive trust in her favour. Additionally, the court considered the implications of the defendant vacating the property and whether the plaintiff should be compensated for the notional rent she would have paid to the defendant. The court's decision hinged on the equitable principles of contribution and the rights of co-owners in jointly held property.

The court found in favour of the plaintiff, recognising that her contributions to the mortgage and other expenses justified the imposition of a constructive trust in her favour. The court held that the defendant held his interest in the property on constructive trust for the plaintiff, and that the plaintiff was entitled to be compensated for the notional rent she would have paid to the defendant had he not vacated the property. The court calculated the extent of the plaintiff's interest in the property based on her contributions and the defendant's failure to contribute. In terms of costs, the court determined that the plaintiff was entitled to have her judgment debt to the defendant set-off against the costs order in her favour, given the defendant's indication that he had no money to pay any amounts sought from him.

The final orders of the court were that the defendant hold his interest in the property on constructive trust for the plaintiff, and that the plaintiff's interest in the property be calculated based on her contributions and the defendant's failure to contribute. Additionally, the court ordered that the plaintiff be compensated for the notional rent she would have paid to the defendant had he not vacated the property. The court also ordered that the plaintiff's judgment debt to the defendant be set-off against the costs order in her favour.

Orders