Macks as Trustee of the Bankrupt Estate of Lee v Lee (No 2) - [2023] FedCFamC2G 815

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Macks as Trustee of the Bankrupt Estate of Lee v Lee (No 2) [2023] FedCFamC2G 815

File number(s): ADG 512 of 2019
ADG 513 of 2019

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 7 September 2023

Catchwords: BANKRUPTCY – applications under s 120(1) and s 121(1) of the Bankruptcy Act 1966 (Cth) that two properties were transferred by bankrupt for prices that were less than their respective market values – whether in the case of one of the properties the balance of the purchase price that was not paid on settlement was later paid by the transferee – not paid – whether in those circumstances trustee in bankruptcy’s right to commence proceeding to recover the balance of purchase price from transferee is statute barred – action barred – whether in the case of the second of the properties whether $100,000 of the purchase price was paid by a creditor of the bankruptcy discharging a debt of $100,000 the bankrupt owed the creditor in return for the bankrupt agreeing to discharge the transferee of her obligation to pay on settlement $100,000 of the purchase price – the $100,000 was paid in this way – whether the transferee gave $100,000 consideration – transferee gave consideration – applications dismissed.

Legislation:
Bankruptcy Act 1966 (Cth) ss 5(1), 58(1), 58(3), 58(4), 115(2), 116, 120, 121, 122

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 11.01

Limitation Act 1969 (NSW) ss 14, 42

Cases cited:
Ambrose v Poumako [2012] FCA 889

Anscor Pty Ltd v Clout (Trustee) [2004] FCAFC 71

Archer v Archer [2000] NSWCA 314

Brooker v Pridham (1986) 41 SASR 380

Brisbane City Council v Amos (2019) 266 CLR 593

Calverley v Green (1984) 155 CLR 242

Commissioner of Taxation v Lane [2020] FCAFC 184

Delehunt v Carmody (1986) 161 CLR 464

Dillwyn v Llewelyn [1862] EngR 908; (1862) 4 De G F & J 517; 45 ER 1285

Fiorino v Woodgate [1994] FCA 1023

Halse v Norton (1997) 76 FCR 389

In re Brown’s Estate [1893] 2 Ch 300

In re Paraguassu Steam Tramroad Company (Ferrao's Case) (1874) LR 9 Ch App 355

Inwards v Baker [1965] 2 QB 29

J M Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693

Johnson v Royal Mail Steam Packet Company (1867) LR 3 CP 38

Lo Pilato v Kamy Seedi Lawyers Pty Ltd [2017] FCA 34

McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457

News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410

Official Trustee in Bankruptcy v Lopatinsky [2003] FCAFC 109

Peldan v Anderson [2006] HCA 48

Ramsden v Dyson [1866] UKLawRpHL 7; (1866) LR 1 HL 129

Re Harmony and Montague Tin and Copper Mining Company (Spargo's case) (1873) LR 8 Ch App 407

Reliance Finance Corporation Pty Ltd v Heid [1982] 1 NSWLR 466

Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68

Russell v Scott (1936) 55 CLR 440

Sellers v One Step Plumbing Concrete Pty Ltd [2002] FCA 478

Sonenco (No 77) Pty Ltd v Silvia (1989) 24 FCR 105

Spencer v The Commonwealth [1907] HCA 82; (1907) 5 CLR 418

Tyler v Thomas [2006] FCAFC 6

Verge v Devere Holdings Pty Ltd (No 4) [2010] FCA 653

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5

Williams v Lloyd (1933) 50 CLR 341

Young v Queensland Trustees Ltd (1956) 99 CLR 560

Division: General

Number of paragraphs: 242

Date of last submission/s: 15 June 2022

Date of hearing: 23, 24, and 25 May 2022

Place: Sydney

The First Applicant: No appearance by, or on behalf of, the First Applicant

Counsel for the Second Applicants: Mr I Thomas

Solicitor for the Second Applicants: Andreyev Lawyers

Counsel for the Respondents: Mr R W Tragenza

Solicitor for the Respondents: Anderson Lawyers
ORDERS

ADG 512 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF UNJU LEE

BETWEEN:
PETER IVAN MACKS

First Applicant

DANIEL IVAN CVITANOVIC AND STEPHEN JOHN HUNDY AS TRUSTEES OF THE BANKRUPT ESTATE OF UNJU LEE

Second Applicants

AND:
HYE JIN BACK LEE

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

7 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.The application is dismissed.
2.Subject to order 3, the applicants pay the respondent’s costs.
3.The parties have liberty to apply by 5 October 2023 to vary or discharge order 2.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
ORDERS

ADG 513 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF UNJU LEE

BETWEEN:
PETER IVAN MACKS

First Applicant

DANIEL IVAN CVITANOVIC AND STEPHEN JOHN HUNDY AS TRUSTEES OF THE BANKRUPT ESTATE OF UNJU LEE

Second Applicants

AND:
DONG SIK LEE
First Respondent

KYUNG HEE LEE

Second Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

7 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.The application is dismissed.
2.Subject to order 3, the applicants pay the respondents’ costs.
3.The parties have liberty to apply by 5 October 2023 to vary or discharge order 2.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

On 17 December 2019 the former trustee (Former Trustee) of the bankrupt estate of Ms Unju Lee (Unju Lee) commenced two proceedings, one against Mr Dong Sik Lee (DS Lee) and his wife, Ms Kyung Hee Lee (KH Lee); and one against Ms Hye Jin Back Lee (HJB Lee). DS Lee is the brother of Unju Lee; and HJB Lee is the wife of Mr Dong Man Lee (DM Lee), Unju Lee’s other brother.
In the proceeding against DS Lee and KH Lee (DS and KH Lee proceeding), the current trustees in bankruptcy of Unju Lee’s estate (Trustees) allege as follows:
(a)On about 6 August 2012 DS Lee and KH Lee (DS and KH Lee) agreed to purchase from Unju Lee a property at 4-6 Tangarra Street, Croydon Park, New South Wales (4-6 Tangarra property), for $1 million.
(b)The sale of the 4-6 Tangarra property was completed on 10 January 2013 by DS and KH Lee paying only $700,000 (including a $100,000 deposit) to Unju Lee on the basis that the parties would treat the $300,000 balance of purchase money as a loan from Unju Lee to DS and KH Lee.
(c)DS and KH Lee have not paid the balance of the purchase price of $300,000.
On the basis of these allegations, the Trustees claim:
(a)the transfer of the 4-6 Tangarra property is void against the Trustees under s 120(1) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) because it occurred in the period beginning 5 years before the commencement of Unju Lee’s bankruptcy; and DS and KH Lee gave consideration for the transfer of the 4-6 Tangarra property that was less than its market value;
(b)further, or in the alternative to (a), the transfer of the 4-6 Tangarra property is void as against the Trustees under s 121 of the Bankruptcy Act because it was a natural and probable consequence of Unju Lee’s transferring the property with $300,000 of the purchase price remaining unpaid that Unju Lee’s creditors would be defeated or delayed; and
(c)in the alternative to (a) and (b), the Trustees claim payment of the $300,000.
DS and KH Lee admit they purchased the 4-6 Tangarra property from Unju Lee for $1 million; they paid $700,000 of the $1 million on settlement of the purchase; and that Unju Lee agreed that the $300,000 balance of the purchase price would be treated as a loan from Unju Lee to DS and KH Lee. DS and KH Lee say, however, that they repaid the $300,000 after they resold the 4-6 Tangarra property in January 2014. DS and KH Lee also say that the Trustees’ claim for repayment of the $300,000 is barred by s 14 of the Limitation Act 1969 (NSW) (Limitation Act).
In the proceeding against HJB Lee (HJB Lee proceeding), the Trustees allege as follows:
(a)On about 12 October 2012 HJB Lee agreed to purchase from Unju Lee a property situated at 8-10 Tangarra Street, Croydon Park, New South Wales (8-10 Tangarra property) for $650,000.
(b)HJB Lee completed the purchase and became the registered proprietor of the 8-10 Tangarra property on 23 January 2013.
(c)HJB Lee only paid $550,000 of the purchase price, and she has not paid the balance.
On the basis of these premises, the Trustees claim:
(a)the transfer of the 8-10 Tangarra property is void against the Trustees under s 120(1) of the Bankruptcy Act because it occurred in the period beginning 5 years before the commencement of Unju Lee’s bankruptcy; and HJB Lee gave consideration for the transfer that was less than the market value of the 8-10 Tangarra property;
(b)further, or in the alternative, to (a) the transfer of the 8-10 Tangarra property is void under s 121 of the Bankruptcy Act against the Trustees because it was a natural and probable consequence of Unju Lee’s transferring the property with $100,000 of the purchase price remaining unpaid that Unju Lee’s creditors would be defeated or delayed; and
(c)in the alternative to (a) and (b), HJB Lee is liable to pay the Trustees the $100,000, and that that liability is secured by an equitable charge that arose on the transfer of the 8-10 Tangarra property.
In her defence HJB Lee admits she agreed to purchase the 8-10 Tangarra property from Unju Lee for $650,000; and that on settlement she paid only $550,000 of the purchase price. HJB Lee does not admit, however, that the balance of the $100,000 had never been paid. HJB Lee says that, at the time of the contract for sale of the 8-10 Tangarra property, Unju Lee was indebted to Unju Lee’s mother (Mrs Lee) in the amount of $100,000, but this was set off against the $100,000 unpaid balance of the purchase price for the 8-10 Tangarra property.
I will begin by setting out in narrative form the evidence. Unless the context suggests otherwise, any unqualified statement of fact should be taken to be a finding of the fact stated.
EVIDENCE AND SOME FINDINGS
Unju Lee and her two brothers, DM Lee and DS Lee, were born in Korea. Their father (the father) migrated to Australia in 1977; and in 1981 Unju Lee, DS Lee, DM Lee, and their mother (that is, Mrs Lee) migrated to Australia.[1]
[1] Affidavit D S Lee 17.03.2021, [3]-[7]
4-6 Tangarra property
According to evidence Unju Lee gave at a public examination held on 14 April 2016 (Public Examination 1), Unju Lee bought the 4-6 Tangarra property in about 1996.[2] Unju Lee bought the property for the purpose of demolishing the building that stood on the land and erecting a two storey building that would also contain a store from which the father and Mrs Lee would conduct a convenience store.
[2] Affidavit A B K Meister 28.01.2021; annexure 2, page 15.8
Unju Lee gave evidence at Public Examination 1 about the circumstances in which she acquired and carried out construction work on the 4-6 Tangarra property:[3]
[3] “T” is a reference to Mr Meister, the Former Trustee’s lawyer; and “L” is a reference to Unju Lee.
T: did your mother live with you for a period of time?
L: she lived upstairs of the shop, yes.
T: and which shop was that, because there are two next to each other?
L: 4-6 Tangarra Street.
T: and when she lived upstairs, was it rent free?
L: yes, mum and dad lived upstairs.
T: oh it was mum and dad, sorry?
L: yeah, because they sold their property and we built it, and so the condition was they live up there freely.
T: sorry, so mum and dad bought the property?
L: I bought it, and we built it, we had to knock it down and build it
T: oh sorry, so it was like a block of land was it?
L: no it was a small property, and we knocked it down and built it for the shop. Then they had a property in Belmore and they sold it to help pay for the property so they were living upstairs for free.
T: oh okay so they were co-investors, or what was the arrangement?
L: just a verbal arrangement I suppose, then they can see their lives out from upstairs.
T: Okay and where was that property?
L: Belfield? Belfield.
. . . .
T: how much money did your parents contribute to that property?
L: I can’t remember how much exactly.
T: in general. Was it $5,000? $10,000?
L: Oh no, no, no, no. It was in the hundreds of thousands of dollars.
T: one hundred thousand? Two hundred thousand?
L: I think a couple of hundred thousand dollars.
T: and that came from the sale of their property, and then it would have been deposited into one of your bank accounts?
L: no, no. we were paying the builders as we were building, and we were just paying them in cash.
T: and who is we?
L: I paid the builder, because I employed the builder.
T: so your parents would give you the money and you would hold it and then pay it to the builder, or you put it into a bank account?
L: I didn’t put it in the bank account.
T: at all?
L: no.
T: so you have a few hundred thousand dollars cash?
L: yeah.
T: sitting somewhere?
L: they didn’t give it to me all together, so when I needed it, yeah.
T: so your mother retained that money and then as and when it was required you then got that money from your mother?
L: yeah.
T: okay. Was there any lump sums you were holding? Because just a moment ago you said you held on to it?
L: No, sorry, she would give it to me and then I would give it to the builder, or I would pay the builder rather.
. . . .
T: when you bought that block of land, or when you knocked it down and renovated it, what was the purchase price for that?
L: it was two properties that we built on; it was number 4 and number 6, that’s why it was number 4-6
T: so 4 to 6?
L: yep. Oh this is like about, $180,200 for number 4, and number 6 was like a similar amount. I can't remember exactly, this was a long time ago. This was almost 20 years ago.
T: oh that’s alright, I was just asking to try and get a general background picture.
T: so about 20 years ago you paid around four hundred thousand for that property?
L: roughly. It was all a bank loan anyway.
T: the land was bank loaned?
L: it was actually a building, it wasn't actually land, but yeah it was loaned through the bank.
T: sorry what I meant by that, it was an improved property, but you decided to demolish what was there at the time, and the bank provided the full proceeds for the purchase of the property but the development by the builder was paid for in cash by your parents?
L: some of it was bank loaned, because we couldn’t get all the money from the bank, yeah mum and dad that’s why they contributed.
T: so you made no contribution to the property at all?
L: in terms of hard cash, no. The bank lent extra cash. And then when there was a shortage of money, mum and dad (loaned money).
The effect of this evidence is that Unju Lee financed the purchase of the 4-6 Tangarra property with a loan from a bank, which I find was ANZ Bank Ltd (ANZ Bank); the father and Mrs Lee provided to Unju Lee the money necessary to pay the costs of the builders Unju Lee had engaged to undertake the building work; the amount of the money Mrs Lee and the father provided was at least $200,000; and the father and Mrs Lee obtained the money which they provided to Unju Lee out of the proceeds of sale of a property they had owned at Belmore.
Unju Lee was also asked questions that attempted to characterise the arrangements by which the father and Mrs Lee provided money to Unju Lee to pay for the building work that was undertaken on the 4-6 Tangarra property:
T: and once the property was put on and your parents invested in both the two properties, 4 and 6, did they seek to secure that money?
L: no.
T: was that money in any instance for the family by way of a gift?
L: inheritance I think.
T: I mean did the parents say to you “look we are giving this to you, you’re our children. We will give it to you, you build it you give us the place above the shop, but we’re giving it to you”? Was it that, or was it “this is a loan, this is commercial?”
L: No, no. it was like that, they contributed so that they could live there and see out their lives from there, from that property.
T: and there was no repayment date on that loan?
L: no.
T: any interest paid on that loan?
L: no.
T: so basically it was a gift of return for somewhere to stay, but the property was yours.
L: yep.
T: okay.
L: this is almost like a bad [sic] retirement place, isn’t it?
T: “here you have the property, it’s yours, you just have to put a roof over our heads until the day we die. But in all other respects the property is yours.”
L: yes.
T: and that makes sense why there is no interest on it, or no payment terms or demand terms. Okay I understand.
L: there is a little bit of grey line when it comes to Asian culture, with the money and the children.
T: I understand, that’s why I as [sic] asking those questions because I act for a lot of Chinese people in South Australia and I’m the Chinese Chairman of Commerce’s lawyer in South Australia, that’s why I asked those questions, because it seems to be consistent with the fact that that’s what parents do, they buy it but they expect a roof over their head.
L: yes, they expect you to look after them as well. So that’s all not something that is said or written, it’s an unwritten rule.
T: it’s a conditional gift. Would you say that?
L: it’s just expected of the children. As the parents its expected, and as the children, again it’s expected that that’s what you do, you look after them when they get old.
T: “It's yours but you better look after us”.
L: yeah, but it was hardly said like that, but yeah.
T: No but that is what the culture is.
L: yes that’s the culture.
T: Your parents never said to you “this is our property and therefore, yada, yada, yada ... ”
L: No. I mean they will go to their friends and say “this is my property but it is in the name of my daughter”.
T: Yes, “look what we did for the kids”.
L: yes, that’s what it is, but it’s not like they want it in their name or anything.
T: they’re not the owners, but there is the expectation to be looked after.
L: in the culture, everyone will think it’s theirs anyway, even though it’s in my name, so that is just a cultural thing.
T: certainly. That is how the Chinese would consider it, which would look quite strange to Caucasians in Australia.
L: It is, it is very different. I think now the Caucasians probably have a better understanding than years ago, they just could not fathom how that could work, but that is how it is in their culture and if you go into their countries, even way worse with how they deal with family monies and what have you. So it’s much more greyer than that, yeah. Not that its black money or anything it’s just that there is no clear cut line saying “this is mine, this is yours”. It’s not like that at all.
T: Okay.
I will consider later the potential legal consequences of the father and Mrs Lee providing money to Unju Lee to pay for building work that was undertaken on the 4-6 Tangarra property.
The father and Mrs Lee conducted a convenience store from the ground level of the 4-6 Tangarra property.[4] According to the evidence Unju Lee gave at Public Examination 1, Unju Lee came to conduct the convenience store, although the evidence does not reveal when she commenced doing so.
[4] Affidavit Mrs Lee 16.03.2021, [12]
8-10 Tangarra property

According to Mrs Lee, on a date she cannot recall, she and the father bought the 8-10 Tangarra property.[5] On a day Mrs Lee believes was “more than 10 years ago” (that is, before 2011), Mrs Lee says that she and the father agreed to sell the 8-10 Tangarra property to Unju Lee because the convenience store business was not going well, and they could not afford to pay the mortgage. Unju Lee said she would buy the 8-10 Tangarra property, and that she would pay the mortgage for it.[6]
[5] Affidavit Mrs Lee 16.03.2021, [9]
[6] Affidavit Mrs Lee 16.03.2021, [14]
Mrs Lee recalls that she and the father sold the 8-10 Tangarra property to Unju Lee for $550,000. Unju Lee, however, paid only $450,000 of the $550,000. Neither the father nor Mrs Lee received any of the $450,000; Mrs Lee thinks the “full amount” of $450,000 “went to paying out the mortgage”.[7] According to Mrs Lee, Unju Lee said to the father and Mrs Lee that Unju Lee would “pay you back the $100 000 gradually because you don’t need that much money”. Mrs Lee and the father agreed.[8] In evidence given under cross-examination Mrs Lee said that Unju Lee did not pay to the father and Mrs Lee the full purchase price, but only an amount that “paid off the bank portion but not the rest of it because [there was] not enough money”.[9]
[7] Affidavit Mrs Lee 16.03.2021, [14]
[8] Affidavit Mrs Lee 16.03.2021, [16]
[9] 23.05.2022 T75.35
Unju Lee gave evidence at Public Examination 1 about the circumstances in which she acquired the 8-10 Tangarra property:[10]
[10] Affidavit A B K Meister 28.01.2021; annexure 2, pages 41.5-42.3
L: I owe her a hundred thousand dollars but I didn’t give her [anything]
T: what was that for?
L: originally they owned that property and mum and dad transferred it to my name and I had to pay them a hundred thousand dollars.
T: sorry which property?
L: 8-10 Tangarra Street.
T: sorry I just need clarification. So about twenty years ago you bought a property that was improved?
L: okay this is very confusing. Okay this is what happened.
T: okay
L: we were number 2 originally, I bought number 4 and number 6 and mum and [the father] bought number 8 and number 10, and number 8 and number 10 is considered to be, for whatever reason, one property; so two numbers, two council rates but one water rate. I don’t know how - tried to rectify that but the water people said “no its one” and the council people said “no it’s two”. So we just go with it, it was just too hard to figure it out. So 4 and 6 we knocked it down and made it into one property. Downstairs was the shop; upstairs was the residential [home] for mum and dad. The pizza shop was leased out, 8-10, so originally on that. when they transferred that to me, when I bought it, I owed them a hundred thousand dollars.
T: and that was a commercial transaction?
L: that was a commercial transaction.
T: is that recorded anywhere?
L: James and associates should have all the documents.
T: so you're saying there would be a loan agreement, they did that transaction too.
L: yeah they did everything.
Also relevant is an email Ms Helen James, a solicitor, sent to Unju Lee on 31 December 2012 in which she noted that “when you purchased the property your parents gave you a mortgage back of $135,134.40”, and that the mortgage was unregistered.[11]
[11] Exhibit A, page 279
On the basis of this evidence, I find that:
(a)At some time before 2011 the father and Mrs Lee agreed to sell to Unju Lee the 8-10 Tangarra property. At the time of that sale the father and Mrs Lee owned the property as co-owners. The basis of that finding is the generalisation that most married couples hold their property as co-owners; and, in any event, Unju Lee in the evidence she gave at Public Examination 1, referred to the father and Mrs Lee selling her the 8-10 Tangarra property.
(b)On the father and Mrs Lee transferring the 8-10 Tangarra property, Unju Lee, using a loan from ANZ Bank, paid only so much of the purchase price as was necessary to discharge the mortgage that then encumbered the property; and the parties agreed that Unju Lee would proceed with the settlement on the basis that Unju Lee would grant a mortgage back to secure a debt of $135,134.40.
(c)Given that the father and Mrs Lee were co-owners of the 8-10 Tangarra property, Unju Lee owed the obligation to pay the $135,134.40 to the father and Mrs Lee as joint creditors; and, on the death of the father, the debt and mortgage passed or accrued to the survivor, namely, Mrs Lee, by the operation of the common law rule of survivorship.[12]
6 August 2012 – Unju Lee sells 4-6 Tangarra property to DS and KH Lee
[12] This rule has been applied to joint bank accounts where the joint account holders are creditors of the bank. Thus, in Russell v Scott (1936) 55 CLR 440, at pages 450-451, Dixon J said: “The aunt and the nephew upon opening the joint account became jointly entitled at common law to a chose in action. The chose in action consisted in the contractual right against the bank, i.e., in a debt, but a debt fluctuating in amount as moneys might be deposited and withdrawn. At common law this chose in action passed or accrued to the survivor.”
Documentary evidence
In around April 2011 Unju Lee instructed Ms James to prepare a contract for the sale of the 4-6 Tangarra property. Ms James prepared and issued a contract for sale to a number of agents; but as at 27 May 2012 Unju Lee had not entered into a contract for sale of the property.[13]
[13] Exhibit B, item 2
By around 27 May 2012 Ms James had issued a contract for sale to Laing & Simmons Campsie, who by then had entered into negotiations with prospective purchasers of the 4-6 Tangarra property.[14] Those negotiations stalled; and by email sent on 2 July 2012 Unju Lee informed Ms James that “my brother” said he would buy the 4-6 Tangarra property off her. Unju Lee’s email is as follows:[15]
Since the buyers are giving me so much trouble regarding everything I’ve been talking to my brother and he said he’ll buy the 4-6 Tangarra St off me so we can avoid bank trying to get hold of my property. I’ve told the Real Estate agent deal is off. Can you please call me when you get a chance.
[14] Exhibit B, items 2, 3
[15] Exhibit B, item 5
There followed correspondence between Ms James and DS Lee’s lawyer, Ms Vivian Pak, of KP Lawyers. The correspondence related to two aspects of the contract for sale. The first was the inclusion of a clause that provided for the purchaser’s consent to the release of the deposit to the vendor; and the second was the addition of KH Lee as a purchaser.[16] KH Lee was added as a purchaser because the “Purchaser’s lender requires the purchaser’s wife to be joined as a purchaser”.[17]
[16] Exhibit A, pages 4-6. There is in evidence a letter dated 4 July 2012 apparently signed by Unju Lee addressed to DS Lee acknowledging that she had received $100,000 “as a 10% deposit for property no. 4-6 Tangarra Street, Croydon Park NSW” - Affidavit D S Lee 17.03.2021, [44]; annexure C
[17] Exhibit A, page 5
On 6 August 2012 contracts for the sale by Unju Lee to DS Lee of the 4-6 Tangarra property were exchanged.[18] The contract specified a purchase price of $1 million; it noted that the completion date was the forty second day after the contract date; and it acknowledged that a 10% deposit had been paid. (There is in evidence a letter dated 4 July 2012 from Unju Lee to DS Lee in which Unju Lee acknowledges that she “received amount of $100,000 as a 10% deposit for property no. 4-6 Tangarra Street, Croydon Park NSW”.[19]) Clause 42 of the special conditions to the contract provided that the purchaser “grants to the Vendor a lease in the form” that was attached to the contract.[20] That form of lease specified DS Lee as the lessor, and Unju Lee as the lessee.[21] It provided for the payment of two rents, $450 per week “for the residential premises”, and $550 per week “for the commercial premises”.[22]
[18] Exhibit A, pages 10
[19] Exhibit D, page 10
[20] Exhibit A, page 13
[21] Exhibit D, page 58
[22] Exhibit D, page 60
By letter dated 6 August 2012 Ms James informed Kemp Strang, the lawyers for the mortgagee, ANZ Bank, that contracts for the sale of the 4-6 Tangarra property had been exchanged, and the completion of the contract was “required on or prior to 17 September 2012”.[23] Kemp Strang responded by sending the following email:[24]
We are instructed to make an application for default judgment against your client.
Notwithstanding the above, if Ms Lee pays to our client all moneys payable under the mortgages given by her to our client by no later than 5.00pm, on 17 September 2012, our client will refrain from enforcing that judgment.
DS Lee’s evidence
[23] Exhibit A, page 102
[24] Exhibit A, page 106
Affidavit
DS Lee, in his affidavit, deposes to the circumstances in which he agreed to purchase the 4-6 Tangarra property. In about early 2012 Mrs Lee told DS Lee that she wanted him to buy the 4-6 Tangarra property from Unju Lee. Mrs Lee said Unju Lee was having problems with the bank, and the bank was going to take the 4-6 Tangarra property if Unju Lee did not pay. Mrs Lee was very emotional, and she was crying when she spoke to DS Lee.[25] DS Lee was reluctant to comply with Mrs Lee’s request, but Mrs Lee insisted, stating that DS Lee must help his family.[26]
[25] Affidavit D S Lee 17.03.2021, [24]
[26] Affidavit D S Lee 17.03.2021, [25]
Mrs Lee approached DS Lee again a few days later. Mrs Lee insisted that DS Lee buy the 4-6 Tangarra property, stating that DS Lee had to buy the property “or the bank will repossess it”. DS Lee yielded to Mrs Lee’s request after she continued crying and yelling.[27] DS Lee agreed to buy the 4-6 Tangarra property because of his duty to comply with Mrs Lee’s demands.[28]
[27] Affidavit D S Lee 17.03.2021, [26]
[28] Affidavit D S Lee 17.03.2021, [28]
Most of the discussions DS Lee had about buying the 4-6 Tangarra property were with Mrs Lee. DS Lee understood, however, from discussions he had with Unju Lee, that Unju Lee was having trouble repaying her debts to the bank, and that Unju Lee was going to use the money from the sale to pay the bank the money she owed.[29] Unju Lee informed DS Lee that she had tried to sell the 4-6 Tangarra property through some real estate agents, but the sale did not go through, and she needed to “pay back the bank”.[30]
[29] Affidavit D S Lee 17.03.2021, [29]
[30] Affidavit D S Lee 17.03.2021, [31]
DS Lee, Unju Lee, and Mrs Lee agreed that the 4-6 Tangarra property would be sold to DS and KH Lee for $1 million.[31] Unju Lee informed DS Lee that, once the sale settled, she wanted to lease the whole building that constituted the 4-6 Tangarra property, including the shop at the bottom of the building, because Unju Lee wanted to “keep running the shop”.[32] Unju Lee also said that she would rent the “upstairs area for mum”. DS Lee said that if Mrs Lee is going to be living upstairs, he would keep the rent low, and that way he would be contributing to her accommodation. DS Lee then said he would accept $1,000 per week plus GST “for the shop space and the top residential part for” Mrs Lee. Unju Lee agreed.[33]
[31] Affidavit D S Lee 17.03.2021, [33]
[32] Affidavit D S Lee 17.03.2021, [34]
[33] Affidavit D S Lee 17.03.2021, [35]
Public Examination 2
DS Lee also gave evidence at a public examination that was conducted on 27 September 2016 (Public Examination 2).[34] In answer to the question why he bought the 4-6 Tangarra property, DS Lee said:[35]
Because my mother asked me to help her and my father was very sick and towards the end. . . my father was at the end of his journey so whole family was a mess so I kind of pretty much a stable state so she asked me to help them with money so how much she wanted so and gave initial deposit and you just purchase the property…
[34] Affidavit A B K Meister 28.01.2021; annexure 4
[35] Affidavit A B K Meister 28.01.2021; annexure 4, page 56.7
DS Lee said there was urgency to his buying the 4-6 Tangarra property because ANZ Bank “was seizing the property so I had to act asap”.[36]
[36] Affidavit A B K Meister 28.01.2021; annexure 4, page 58.3
Cross-examination
Although DS Lee was cross-examined, his evidence of the circumstances in which he purchased the 4-6 Tangarra property was not challenged. DS Lee was also cross-examined about the $100,000 deposit. DS Lee said he paid that amount in cash.[37] DS Lee could not remember how much of the $100,000 cash he paid by deposit came from family and friends.[38]
[37] 24.05.2022 T103.40
[38] 24.05.2022 T104.5
I accept DS Lee’s evidence.
Mrs Lee’s evidence
Affidavit
According to Mrs Lee, in 2012 the father became sick and he was dying. Unju Lee was asking Mrs Lee for money almost every day. Unju Lee displayed anger and agitation. Mrs Lee gave Unju Lee money on two occasions, “like $300 or $500”; but Mrs Lee had no other money to give.[39]
[39] Affidavit Mrs Lee 16.03.2021, [18]
When the father was in hospital Unju Lee told Mrs Lee that she had to sell her properties because she needed money. When Mrs Lee asked why, Unju Lee said she did not have to explain; she just needed the money.[40] On a date Mrs Lee cannot remember, she observed two real estate agents “who tried to sell” the 4-6 Tangarra property. Potential buyers came to inspect the property, but no one bought it. Mrs Lee observed Unju Lee had become anxious. Mrs Lee asked Unju Lee what was going on, but she became very upset. Unju Lee told Mrs Lee that she had to sell the properties because she needs the money.[41]
[40] Affidavit Mrs Lee 16.03.2021, [19]
[41] Affidavit Mrs Lee 16.03.2021, [20]
On a day Mrs Lee cannot remember, Unju Lee told her that Unju Lee had asked DS Lee to “buy the house but he has said no”.[42] Mrs Lee then approached DS Lee “to buy” the 4-6 Tangarra property, but DS Lee said: “No”.[43] Later, Mrs Lee went to DS Lee and said: “Please consider buying it from Unju”. Sometime later, Unju Lee told Mrs Lee that she had spoken to DS Lee, and that DS Lee had “agreed to buy it”.[44]
[42] Affidavit Mrs Lee 16.03.2021, [21]
[43] Affidavit Mrs Lee 16.03.2021, [21]
[44] Affidavit Mrs Lee 16.03.2021, [22]
Cross-examination
In evidence given under cross-examination, Mrs Lee agreed that the reason she talked to DS Lee about him buying the 4-6 Tangarra property was to avoid the bank taking possession of it;[45] that she knew that, to buy the property, DS Lee needed to borrow money from the bank;[46] that Mrs Lee understood it would be better if DS Lee took on additional financial commitments rather than Unju Lee losing the 4-6 Tangarra property;[47] Mrs Lee discussed with Unju Lee that it would be better to keep the house even if DS Lee did not pay the full purchase price;[48] and Mrs Lee discussed with DS Lee that it would be better to keep the 4-6 Tangarra property, even if DS Lee did not pay the full purchase price.[49] By letter dated 14 September 2012 Ms James informed KP Lawyers that Unju Lee has agreed “to an increase in the monthly rent to $5,000.00 inclusive of GST which is to be apportioned as $550.00 inclusive of GST for the commercial premises and $603.85 for the residence, noting that the residence does not attract GST”.[50]
[45] 23.05.2022 T74.5
[46] 23.05.2022 T74.15
[47] 23.05.2022 T74.35
[48] 23.05.2022 T74.45
[49] 23.05.2022 T75.5
[50] Exhibit D, page 126
Mrs Lee’s evidence is broadly consistent with DS Lee’s evidence, and I accept it.
Unju Lee’s evidence
Unju Lee has not made an affidavit, and she has not been called as a witness. As will already have become apparent, however, there is in evidence a transcript of the evidence Unju Lee gave at Public Examination 1.[51] Unju Lee there said that, after a bank repossessed an investment property in Salamander Bay she had bought, “everything started to crumble”.[52] Unju Lee and Mrs Lee bore the difficulties alone; but Unju Lee asked Mrs Lee whether Unju Lee’s brothers would buy the 4-6 Tangarra property “just to make sure they could pay the bank so that the repossession doesn’t happen”.[53] Unju Lee further said:[54]
[O]riginally I wasn’t going to continue the shop, but so that it didn’t get repossessed my mum said to my older brother “can you try to see if you can buy it to prevent it from getting repossessed”. In the beginning he didn’t want to, but it got so desperate, things were so dire that he said “okay” and he thought he would have no problem in terms of getting a bank loan.
[51] Affidavit A B K Meister 28.01.2021; annexure 2
[52] Affidavit A B K Meister 28.01.2021; annexure 2, page 21.7
[53] Affidavit A B K Meister 28.01.2021; annexure 2, page 22.7
[54] Affidavit A B K Meister 28.01.2021; annexure 2, page 23.2
Events from 6 August 2012 to 2 October 2012
DS Lee applied to NAB for a loan “to purchase the property”.[55] On 17 August 2012 NAB instructed valuers to provide a valuation of the 4-6 Tangarra property. By a report dated 21 August 2012 the valuers valued the 4-6 Tangarra property at $915,000.[56] NAB, however, was willing to lend no more than $600,000.[57]
[55] Affidavit D S Lee 17.03.2021, [36]
[56] Affidavit D S Lee 17.03.2021, [37]; annexure B
[57] Affidavit D S Lee 17.03.2021, [38]
By letter dated 27 August 2012 to Unju Lee, Ms James confirmed that Unju Lee was aware there was not sufficient money to repay the loan she owed ANZ Bank. Ms James stated that “[y]our lender will require payment of all money owed to them secured over 4-6 Tangarra Street and 8-10 Tangarra Street to hand to the purchaser a discharge of the mortgage”, and that on “completion you must be in a position to pay the shortfall otherwise completion will not occur”.[58]
[58] Exhibit A, page 108
By letter dated 3 September 2012 Ms Pak (DS Lee’s lawyer) informed Ms James that the father had passed away on 9 August 2012; that DS Lee was finalising the loan application; and that Ms Pak had been instructed that Unju Lee had agreed to extend settlement for two weeks to 2 October 2012 without penalty being charged to DS Lee.[59] By letter dated 6 September 2012 Kemp Strang informed Ms James that ANZ Bank was prepared to allow Unju Lee until 2 October 2012 to repay the debt she owed; but noted that ANZ Bank would not be providing any further extensions, and that Kemp Strang will receive instructions to enforce the judgment ANZ Bank then held against Unju Lee, should the debt not be repaid by 2 October 2012.[60]
[59] Exhibit A, page 112
[60] Exhibit B, item 7
By letter dated 28 September 2012 Ms James requested Kemp Strang obtain instructions from ANZ Bank whether it would discharge its mortgage over the 4-6 Tangarra property on the basis of the payment of the proceeds of sale as set out in an attached “Settlement Adjustment”. That was a copy of a letter dated 28 September 2012 addressed to DS Lee’s lawyers directing the manner in which the balance of proceeds of the sale of the 4-6 Tangarra property should be paid. The direction related to a total of $901,442.81 that was to be paid on settlement, of which $895,152.33 was to be paid to ANZ Bank.[61] The direction to pay did not reflect the money DS Lee had available to pay on settlement of the 4-6 Tangarra property. By email sent on 2 October 2012 Mr Marsden, the lawyer for ANZ Bank, informed Ms James that he had received a “call from the purchaser who advised us that there would only be approximately $700,000 available at settlement”.[62]
[61] Exhibit A, pages 117, 118
[62] Exhibit A, page 121
On 2 October 2012 Unju Lee sent the following email to Mr Marsden (errors in original):[63]
I have been trying to contact you regarding Nos 4-6 and 8-10 Tangarra Street, Croydon Park.
Currently we have $700,000 for 4-6 Tangarra Street where buyer is short of $300,000. I have a buyer for No 8-10, which we have finally agreed on a price of $650,000. contract is been prepared and are scheduled to sign by this Friday.
With this information, can we please settle 4-6 Tangarra Street, with current available funds, should cover the loan owed to the bank for no 4-6 Tangarra Street.
Can you please help me. I am trying my best to pay the debt but sometimes things are going wrong. I am trying my best. Debt for 8-10 will be paid in full once the contract is exchanged and settled. Thank you.
[63] Exhibit A, page 123

Mr Marsden responded to this email by sending an email to Ms James stating that ANZ Bank would not attend settlement on that day “on the basis of the information provided”, and would not do so unless the “full purchase price is available at settlement”.[64] By letter dated 2 October 2012 Ms James informed DS Lee’s lawyers that the “vendor’s discharging mortgagee will only attend settlement if the full purchase price is paid on settlement”.[65]
12 October 2012 – contract for sale of the 8-10 Tangarra property
[64] Exhibit A, page 123
[65] Exhibit A, page 127
Documentary evidence
Under cover of a letter dated 4 October 2012 Ms James forwarded to Unju Lee “an incomplete draft contract for sale” in relation to the 8-10 Tangarra property.[66] By letter dated 11 October 2012 Ms James informed Kemp Strang that Unju Lee wished to exchange contracts for the sale of the 8-10 Tangarra property, and requested Mr Marsden inform Ms James of the amount owing to ANZ Bank, including legal fees.[67] Mr Marsden responded that the payout figure, as at 10 October 2012, would be “approximately” $1,080,991.68.[68]
[66] Exhibit A, page 128
[67] Exhibit A, page 131
[68] Exhibit A, page 132
On 12 October 2012 Unju Lee and HJB Lee exchanged contracts for the sale of the 8-10 Tangarra property for $650,000, with settlement to occur 56 days after the date of exchange of contracts.[69] (HJB Lee is identified in the contract for sale as “Hye Jin Back”.) It may be inferred that on that day Ms James sent to Kemp Strang a copy of the contract for sale. That inference is based on the letter dated 18 October 2012 Kemp Strang sent to Ms James.[70] After referring to “your letter dated 12 October 2012”, Kemp Strang stated ANZ Bank would discharge its mortgage over the 8-10 Tangarra property, subject to the conditions set out in the letter. Kemp Strang further stated that ANZ Bank had already taken steps to obtain a writ of possession for both the 4-6 Tangarra and the 8-10 Tangarra properties, and it was not prepared to refrain from any further enforcement action.
HJB Lee’s evidence
[69] Exhibit A, page 134
[70] Exhibit A, page 253
Affidavit
In her affidavit HJB Lee says that, after the father died, Unju Lee and Mrs Lee came to HJB Lee’s house. Both were distressed, and crying. Unju Lee and Mrs Lee told HJB Lee that Unju Lee was struggling financially, and that if “she” could not repay the bank for both the 4-6 Tangarra and 8-10 Tangarra properties, those properties would be repossessed.[71] HJB Lee said:[72]
Unju was crying and said words to the effect, “Dad is dying, and I am struggling to pay the bank back the loan for 8-10 Tangarra. I have had to spend a lot of money on dad’s medication and other expenses for his care and being at the hospital with him every day I haven’t been going into work so I’m not making any money to pay my debts”. . . .
“Please buy 8-10 Tangarra Street from me and I’ll use the money you pay me to pay back the bank.
[71] Affidavit H J B Lee 16.03.2021, [24]
[72] Affidavit H J B Lee 16.03.2021, [25], [26]
HJB Lee said she did not have the money; but, after stating that DM Lee refused to buy the property, Mrs Lee insisted that HJB Lee buy the property. HJB Lee relented, stating that she will try her best, and do her research to find a bank that is willing to lend her the money.[73] HJB Lee applied to Suncorp for a loan, and Suncorp approved a loan of $452,000, which was less than the $650,000 Unju Lee said she needed. HJB Lee said to Mrs Lee that she will be unable to financially purchase the house, and she will not be able to help.[74] HJB Lee continued with the following evidence:[75]
The next day, my mother-in-law came to me at my house. She was alone and she said words to the effect, “Second One, you have to buy the house, don’t worry if you don’t have enough money to buy it. . . I will take care of it don’t worry . . . .Unju owes me some money and I will sort it out with her . . .you just take the loan to buy the house and I will arrange everything else with Unju. . . we will work out all the details later.”
I found and continue to find it difficult to say no to my mother-in-law as she is family and most importantly an elderly member of the family who requires care. I did not know exactly what money Unju owed to her mother nor did I know the amount that was owing. I said, “Yes, mother-in-law I will do it.”
. . . .
My mother-in-law and Unju arranged for me to go and see a solicitor by the name of Vivian Pak at KP Lawyers, a Korean speaking solicitor, who was going to handle the sale to me.
[73] Affidavit H J B Lee 16.03.2021, [31]
[74] Affidavit H J B Lee 16.03.2021, [36]
[75] Affidavit H J B Lee 16.03.2021, [37], [38], [40]
For reasons I give later, I accept this part of HJB Lee’s evidence.
HJB Lee paid the $32,500 deposit on exchange of contracts.[76]
[76] Affidavit H J B Lee 16.03.2021, [41]
Cross-examination
In evidence she gave under cross-examination, HJB Lee accepted that, when she agreed to buy the 8-10 Tangarra property, she knew the bank was looking to take possession of the property from Unju Lee,[77] and that she agreed to buy the property to help the family.[78] HJB Lee also said that the purchase price of $650,000 was based on a valuation made by Suncorp Bank; that the loan HJB Lee obtained from Suncorp was about $450,000, which meant that HJB Lee had to find another $200,000 to pay for the balance;[79] but the only other money HJB Lee was able to obtain was $32,500 for the deposit.[80] I accept this evidence.
[77] 23.05.2022 T59.45
[78] 23.05.2022 T61.15
[79] 23.05.2022 T61.45
[80] 23.05.2022 T62.5
Public Examination 3
HJB Lee also gave evidence at a public examination held on 23 March 2017 (Public Examination 3).[81] Although the evidence she gave is somewhat confusing, it is broadly consistent with the evidence HJB Lee gave in her affidavit. For example, HJB Lee said:[82]
She come to me and then talk about her struggling financial situation and I tried to pitch it to couple of banker and then I say to her I couldn’t arrange it and then finally I went to one banker home loan but I say to her that not enough $100K and then couple of day
. . . .
Unju said that she had purchased two properties but she is having struggles financially because she had to look after her father and a lot of expenses went into that and she was falling behind with the instalment payments also the principle amount as well and she is unable to manage that
[81] Affidavit A B K Meister 28.01.2021; annexure 5
[82] Affidavit A B K Meister 28.01.2021; annexure 5, page 82.4; page 82.7
HJB Lee also gave the following evidence:[83]
TRUSTEE Did Unju say to you Bank is going to take my property if we don't settle by January 2013 did she say to you something like that at that time
LEE Something like that yeah
MEISTER Was that one of the reasons you bought the property
LEE Yeah
MEISTER Thank you
LEE I already told the first time
Mrs Lee’s evidence
[83] Affidavit A B K Meister 28.01.2021; annexure 5, page 90.3
Affidavit
At a time Mrs Lee does not identify, she says she observed that the 8-10 Tangarra property was up for sale on the market for a little while, but it could not get sold. Mrs Lee observed Unju Lee was very frustrated, and she was anxious to sell the 8-10 Tangarra property. Mrs Lee asked DM Lee whether he would help Unju Lee and buy the 8-10 Tangarra property from her, but DM Lee declined, stating he did not want any headaches.[84] A “short time later”, Mrs Lee and Unju Lee went to HJB Lee’s house where Mrs Lee asked HJB Lee whether she would help Unju Lee by buying “the house from her”. HJB Lee said she could not help because she did not have the money to buy the house.[85]
[84] Affidavit Mrs Lee 16.03.2021, [31]
[85] Affidavit Mrs Lee 16.03.2021, [32]
A “short time later”, Mrs Lee, on her own, approached HJB Lee at her house and said “I’m begging you to buy the house from Unju”. HJB Lee said: “I’ll make enquiries with the bank”.[86] Mrs Lee left HJB Lee’s house. At a time Mrs Lee cannot recall, HJB Lee told Mrs Lee that she cannot buy the property because she could not borrow enough money from the bank.[87]
[86] Affidavit Mrs Lee 16.03.2021, [33]
[87] Affidavit Mrs Lee 16.03.2021, [34]
I accept this evidence.
Cross-examination
In evidence given under cross-examination, Mrs Lee said that she understood that in 2012 the bank was looking to repossess the 8-10 Tangarra property;[88] and Mrs Lee thought it was better to keep the property even if HJB Lee did not pay the full purchase price.[89] I accept this evidence.
Events after 12 October 2012 – evidence about $300,000 shortfall
[88] 23.05.2022 T75.10
[89] 23.05.2022 T75.15
Documentary evidence
In a letter dated 7 November 2012 to Unju Lee, Ms James said “[w]e need to discuss with you and clarify how the matter will proceed to completion”. The “matter” was a reference to the contract for sale of the 4-6 Tangarra property.[90] Ms James continued as follows:
You have a contract that binds the purchaser to pay you $1,000,000 however it appears the purchaser is only presently in a position to pay you $600,000.00. You need to consider whether:
•You wish the sale price to remain at $1,000,000 and so on completion the purchaser will still owe you $300,000. The debt will need to be documented in writing; or
•You wish to amend the contract or enter into a new contract with the purchase price being $700,000.
[90] Exhibit A, page 261
By letter dated 21 November 2012 to KP Lawyers, Ms James set out her understanding of the terms on which the sale of the 4-6 Tangarra property would proceed to settlement, these being:[91]
•The contract price is to remain $1 million ($1,000,000);
•Our client will lend your clients three hundred thousand dollars ($300,000.00) on completion;
•Your clients are to sign a mortgage for the amount being lent and our client will then have the right to lodge a Caveat over the title after completion;
•On completion your clients are to pay seven hundred thousand dollars ($700,000.00) subject to the usual conveyancing adjustments and taking into account any monies already paid towards the purchase price.
[91] Exhibit A, page 264
Ms James enclosed with her letter a mortgage in duplicate for execution by DS and KH Lee. Annexure “A” to the mortgage contained the following terms:
1.It is agreed between the Mortgagor and Mortgagee that if there is an inconsistency between the provisions of Annexure A and Memorandum Q860000 the provisions of Annexure A shall apply.
2.The principal sum shall be repayable by the Mortgagor on the Mortgagee giving to the Mortgagor six (6) months notice in writing requiring the principal sum to be repaid.
3.There will be no interest charged for the first twelve (12) months from the date that the loan is made.
4.Interest will commence to be payable at the expiration of twelve (12) months after the loan is made and will be calculated at the rate charged by the National Australia Bank on their investments loans and if they charge more than one rate then it is to be the average of the highest and lowest published rates.
5.Accrued interest will be payable by the mortgagor to the mortgagee on the Mortgagee giving to the Mortgagor six (6) months notice in writing requiring the interest to be paid.
Evidence of DS Lee
DS Lee does not refer to these documents or to any discussion with Mrs Lee or Unju Lee which reflects Ms James’s understanding, as set out in her letter dated 21 November 2012, on which the settlement of the sale of the 4-6 Tangarra property would proceed; and DS Lee was not cross-examined on these documents. In his affidavit, however, DS Lee refers to a discussion he says he had with Mrs Lee and Unju Lee on a day he does not identify.[92] DS Lee says that “the bank” only approved $600,000 of the $1 million. He then asked: “What do you want me to do about the $300,000 shortfall?”. Unju Lee replied: “Simple, pay it to me when you have the money”.
[92] Affidavit D S Lee 17.03.2021, [39]
At Public Examination 2 DS Lee gave the following evidence:[93]
[93] Affidavit A B K Meister 28.01.2021; annexure 3, page 62.6; pages 64.8-65.3
MEISTER There was a shortfall of $300K what was the arrangement with respect to its payment it’s not in the contract
DONG, SIK LEE Yeah I know she and I agreed as I said before she say when you sell the property you can pay me later that’s what the deal was no contract no third party just she and me no other person was involved just she and me
MEISTER And that was communicated to your solicitor
DONG, SIK LEE No, because is not important anyway because she and I are working together I don’t think its impossible thing I don’t think so - I can’t remember what the thing is but she and I would agree with that one and when the solicitor ask me where the $300K was I say my sister and myself will be sorted out together that was what the answer was
. . . .
MEISTER You got the statements there The opening balance was zero on 20 January 2014 and the proceeds went in the day after
DONG, SIK LEE Oh this one
MEISTER So what was the amount after the ?
$391,440.36 was credited on 21 January 2014
MEISTER At that point in time there was monies to pay your sister $300K
DONG, SIK LEE Yes
MEISTER And your agreement was to pay
DONG, SIK LEE Pay cash yes
MEISTER But that didn’t happen
DONG, SIK LEE I paid $300K in cash in instalments
You said in instalments
MEISTER So when did the agreement come into place to pay in instalments?
DONG, SIK LEE As soon as sell this property
MEISTER So when the property was sold there was a new agreement not to be sold on the sale of the property but an agreement to pay in instalments - what was the terms of that agreement?
DONG, SIK LEE If you translate that way I cannot answer the question because when sell the property I pay her that is what that was but if you translate the contract like this I not answer because she already agree with that I pay $300K so that’s what I did after the sale of this but she wanted cash so I cannot give $300K in one go with the bank that’s too dangerous so I don’t like to carry too much cash in my pocket so I just divide one by one at a time
The account DS Lee gave at Public Examination 2 is different from the evidence DS Lee gives in his affidavit. First, in Public Examination 2 DS Lee says that he agreed with Unju Lee that he and KH Lee would pay the $300,000 when DS and KH Lee sell the 4-6 Tangarra property, whereas in his affidavit DS Lee says he agreed that the money would be paid when he had the money. Second, in his affidavit DS Lee said Unju Lee told him that DS Lee could pay the $300,000 when he has the money in a conversation in which Mrs Lee was also present. In Public Examination 2 DS Lee says the arrangement in relation to the payment of $300,000 was made only between him and Unju Lee.
DS Lee was asked some questions during cross-examination about the $300,000, but he was not taken to the evidence he gave in his affidavit, or to the evidence he gave at Public Examination 2. DS Lee confirmed that at the time the sale of the 4-6 Tangarra property was settled DS Lee did not have the money to pay for the $300,000; and he agreed that he was never in a position to pay the $300,000 to Unju Lee until DS and KH Lee sold the 4-6 Tangarra property the following year.[94]
[94] 24.05.2022 T106.30
Unju Lee’s evidence
Unju Lee gave the following evidence at Public Examination 1 about the $300,000 shortfall:[95]
[95] Affidavit A B K Meister 28.01.2021, annexure 2, page 28
T: it was a million, you discounted it to 700,000, which if you go to paragraph two of your statutory declaration – I’ll lead you through it. You’ve got a contract for a million which you’ve tendered. Paragraph two says notwithstanding, it was a million, you’re brother and sister in law have it for 700,000, you discounted 300,000. Of course there was a mortgage on that because there was a repossession occurring, so if you take that off, that should be the amount your brother and sister in law had to come up with a settlement to pay you. That’s commonly called direct equity in the property at settlement.
L: however because of the repossession, the problem with the repossession and they could not come up with those funds, I’ve indicated to James and Associates that can be done later, so at the settlement, that wasn’t paid.
T: so you’re saying you allowed for the ... your brother and sister in law got the finance from the bank, they paid out the mortgagee -
L: yes.
T: - and then in essence there was a sale by instalments after that? Or was there a loan agreement back from the vendor to your brother and sister to pay it off after settlement?
L: it was after settlement.
T: so it’s a loan.
L: it was unlimited - no what is it? -there was no time limit, sorry.
T: certainly, but it was a loan?
L: yes.
T: because they owed you.
L: yeah, yeah.
T: so they owed you the difference being the net amount at settlement but it wasn’t payable at settlement. It was payable by instalments over time.
L: yeah.
T: because title transferred to your brother and sister in law at settlement.
L: correct.
10 January 2013 – settlement of sales
Documentary evidence
Arrangements had been made to settle the sale of the 4-6 Tangarra and 8-10 Tangarra properties on 7 December 2012, but that was postponed to 7 January 2013 which, in turn, was postponed to 10 January 2013. On 31 December 2012 Ms James sent an email to Unju Lee confirming that settlement had been booked at 2:00 pm on 7 January 2013, and noting that Ms James would be sending the transfer to Unju Lee.[96] Ms James also stated as follows:
We note when you purchased the property your parents gave you a mortgage back of $135,134.40. The mortgage is unregistered. Please confirm whether any funds are to be drawn on settlement toward payment of the mortgage. We will require a written authority from your mother and the Executor of your father’s estate confirming those instructions. If the mortgage is not repaid the debt will continue until such time as it is repaid or the debt is forgiven.
[96] Exhibit A, page 279
It appears that Unju Lee gave the instructions Ms James had asked for in a telephone conversation she had with Ms James on 8 January 2013, and which Unju Lee confirmed in the following email she sent to Ms James at 9:41 pm on 8 January 2013 (8 January arrangement):[97]
As per our conversation earlier today about the money:-
-I owe to mum re 8-10 Tangarra Street Croydon Park
-my brother owe me re 4 Tangarra Street Croydon Park
Mum and I are willing to forgo for property to be saved from repossession from ANZ Bank.
Also for 8-10 Tangarra Street, Croydon Park, Hye Jin Back, she is short of $90,000, I am also willing to forgo in order for smooth settlement on Thursday and to save from repossession. There should be enough money to cover everything. Thank you.
[97] Exhibit A, page 291
In an email Unju Lee sent to Ms James at 10:04 pm on 8 January 2013 Unju Lee said (errors in original):[98]
Sorry i mistyped, I meant $100,000. sorry.
So $100,000 short for 8-10 Tangarra Street Croydon Park. And I am willing to forgo this amount. Thank you.
[98] Exhibit A, page 296
By letter dated 9 January 2013 to KP Lawyers, the lawyers for HJB Lee, Ms James referred to a “Settlement Adjustment Sheet” Ms James had previously submitted which required that HJB Lee pay $617,522.89 on settlement of the 8-10 Tangarra property.[99] Ms James stated that she had been instructed that HJB Lee is unable to cover the full amount, and is short $100,000; but, despite the shortfall, Ms James said she was instructed to proceed with settlement on 10 January 2013. Ms James then directed PK Lawyers to pay $517,522.89 by bank cheque payable to ANZ Bank; and Ms James requested confirmation that the deposit could be released on settlement.
[99] Exhibit A, page 297
The sales of the 4-6 Tangarra and 8-10 Tangarra properties were settled on 10 January 2013. In relation to the settlement of the 4-6 Tangarra property, $557,577.64 was paid to ANZ Bank;[100] and in relation to the 8-10 Tangarra property, $539,578.59 was paid to ANZ Bank.[101] Ms James confirmed what occurred at settlement of each of the sales in two letters to Unju Lee, each dated 23 January 2013.
(a)In relation to the settlement of the 4-6 Tangarra property, Ms James noted, among other things, that she was instructed “to settle on $300,000.00 less than is shown in the Settlement Adjustment Sheet”; the deposit had been paid directly to Unju Lee; and Unju Lee had entered into a lease of the property for a term of three years. Ms James says nothing about DS and KH Lee signing any loan agreement, or granting any mortgage to secure the $300,000 shortfall.
(b)In relation to the 8-10 Tangarra property, Ms James noted, among other things, the following:
We note your parents held an unregistered mortgage over the property. To facilitate settlement and avoid eviction your mother did not insist on repayment of the loan on settlement. Also there was insufficient funds to repay the debt on settlement after you instructed us to proceed to settle on $100,000 less. Unless your mother forgives the debt she may request you to repay the debt at any time.
[100] Exhibit A, page 303
[101] Exhibit A, page 306
Evidence about the 8 January arrangement

It would be convenient at this point to set out the evidence that relates to the 8 January arrangement.
Mrs Lee’s evidence
I have already noted that Mrs Lee, in her affidavit, says that HJB Lee informed Mrs Lee that she could not buy the 8-10 Tangarra property because she could not borrow enough money from the bank. Mrs Lee then said that she remembered that Unju Lee owed Mrs Lee $100,000 from the time Unju Lee bought the 8-10 Tangarra property from the father and Mrs Lee. Mrs Lee went to HJB Lee’s house and said to her words to the following effect:[102]
“Unju owes me money … she owes me $100 000. I will ask Unju to take off $100 000 from the sale price to the property and that way the loan you will get from the bank will be $100,000 less, so you can get the loan that way . . . then I will live at the property until my time comes and I die”.
[102] Affidavit Mrs Lee 16.03.2021, [36]
Mrs Lee says she does not remember whether at the time she told HJB Lee that Unju Lee owed her money whether it was at that, or at a later time that she told HJB Lee that the amount Unju Lee owed Mrs Lee was $100,000.[103]
[103] Affidavit Mrs Lee 16.03.2021, [37]
HJB Lee agreed with Mrs Lee’s proposal. Mrs Lee then went to Unju Lee and said to her words to the following effect:[104]
“You owe me the $100 000 from the time that you bought the property from your father and I. So take $100 000 off the sale price of the house to Hye Jin and that way you’ve paid me back the $100 000.”
[104] Affidavit Mrs Lee 16.03.2021, [38]
Unju Lee said: “Yes, I have to pay you back anyway so ok”.[105]
[105] Affidavit Mrs Lee 16.03.2021, [38]
Mrs Lee gave the following evidence under cross-examination:[106]
[106] 23.5.2022 T78.35-T79.25
MR THOMAS: . . . Did somebody speak to you in late 2012 or early 2013 telling you that you were entitled to any of the sale proceeds from the sale of 8-10 Tangarra Street.
THE INTERPRETER:   Yes.
MR THOMAS:   You knew that the money that was going to be paid wasn’t going to be enough to pay you the money that you were owed. You understood that?
THE INTERPRETER:   Yes.
MR THOMAS:   You didn’t attempt to block the sale saying, “I don’t want this to go through unless I get paid”, did you?
THE INTERPRETER:   I didn’t. That’s correct.
MR THOMAS:   So you didn’t insist on being paid what you were owed immediately, did you.
THE INTERPRETER:   That’s correct.
MR THOMAS:   But you didn’t completely give up your right to payment, did you, all you did was say, “I don’t need to be paid now.” That’s right, isn’t it?
THE INTERPRETER:   Yes.
MR THOMAS:   And I should have said, you had a conversation to [Unju] to that effect, didn’t you?
THE INTERPRETER:   Yes.
MR THOMAS:   And [Unju] has never paid you the money she owed from the purchase of Tangarra Street, has she. 8-10 Tangarra Street.
THE INTERPRETER:   Yes.
MR THOMAS:   And, as you understand it, she still owes you that money, doesn’t she?
THE INTERPRETER:   Yes.
Mrs Lee gave the following evidence under re-examination:[107]
[107] 23.5.2022 T80.30-T81.10
MR TREGENZA:   Now, Mrs Lee, you said in answer to one of my friend’s questions that you still considered [Unju] owing you the money – the $100,000; do you remember saying that?
THE INTERPRETER:   Yes.
MR TREGENZA:   Yes. And you also said in your affidavit, in matter number 512/2019, that you believe that you said to [Unju]:
You owe me $100,000 from the time that you bought the property from your father and I. So take $100,000 off the sale price of the house to Hye Jin and that way, you have paid me back the $100,000.
Do you remember that in your affidavit?
THE INTERPRETER:   Yes, I remember.
MR TREGENZA: And then you said that you believed that [Unju] said back to you:
Yes, I have to pay you back anyway, so okay.
Is that what she said?
THE INTERPRETER:   Yes.
MR TREGENZA:   And so do you regard yourself as having been paid back the $100,000 that [Unju] didn’t pay you when you sold her 8-10 Tangarra Street?
THE INTERPRETER:   That’s correct.
HJB Lee’s evidence
The evidence of HJB Lee I have set out at paragraph 49 of these reasons is relevant to the January 8 arrangement because, if accepted, that would show that Mrs Lee and Unju Lee had a plan to deal with HJB Lee’s not being able to obtain money with which to pay the full purchase price for the 8-10 Tangarra property, and that these plans involved Unju Lee owing Mrs Lee money.
There are two other items of evidence from HJB Lee’s affidavit that is relevant. The first is what HJB Lee says occurred at settlement:[108]
At settlement on 10 January 2013, I paid $452 000 for the property via the loan from Suncorp Bank. This left a shortfall of about $165 500. Unju told me that she is happy to forego $100 000 of the $650 000 that she said she wanted initially. There was then an additional $65 500 shortfall owing. I did not pay this money. I do not know who paid the $65 500 remaining balance or where the monies were sourced from. I do not know who paid the stamp duty for the property when it was transferred into my name. My mother-in-law managed and continues to manage our family and our affairs. I trusted my mother-in-law when she said that she will arrange everything and so I did not ask any questions. I got the loan and signed the paperwork for the sale.
[108] Affidavit H J B Lee 16.03.2021, [42]
The second item of evidence is a conversation HJB Lee says she had with Mrs Lee after settlement, and evidence of the understanding HJB Lee says she acquired on the basis of what Mrs Lee told her. HJB Lee’s evidence is as follows:[109]
After settlement, my mother-in-law approached me and said words to the effect, “Unju owes me $100,000 that I had loaned her previously when she bought 8-10 Tangarra Street from me and your father-in-law. You will not need to pay the $100,000 that you owe Unju for the shortfall if you let me live at the property from now on until I die, and that will cover the $100,00[0] you owe to Unju and that she owes me.”
. . . .
When my mother-in-law told me about the family arrangements she wanted to make for the property after settlement, it was my understanding that what she wanted me to do was assume responsibility for the debt of Unju to her mother in the sum of $100,000 by allowing my mother-in-law to live in the property until her death. I understood that by having this family arrangement in place I would not need to pay back the $100,000 shortfall that I couldn't pay Unju on settlement.
[109] Affidavit H J B Lee 16.03.2021, [44], [46]
HJB Lee gave somewhat confusing evidence about the conversation HJB Lee says she had with Unju Lee “on settlement”:[110]
[110] 23.05.2022 T63.25-T64.30
MR THOMAS: That wasn’t the question I asked. I asked whether you had a conversation with [Unju] where she said she would forego the $100,000. Did you have a conversation to that effect with [Unju]?
THE INTERPRETER: Nothing like forget about – nothing like that.
MR THOMAS: So I will just take you back to paragraph 42 of your affidavit. You say in the second sentence:
[Unju] told me that she is happy to forego $100,000 of the $650,000 that she said she wanted initially.
Now, did that conversation happen or not?
THE INTERPRETER: You don’t have – you don’t have to pay this back to me. And also on top of that, the conversation between mother-in-law and [Unju].
MR THOMAS: Yes. So you’re now saying that the conversation you refer to in paragraph 142 did happen.
THE INTERPRETER: That wasn’t about giving up that amount of money. There was arrangement – consideration between the mother-in-law and [Unju], because [Unju] borrowed the money and because of that arrangement.
MR THOMAS: Now, I have asked you – I have been asking you about your conversation with [Unju]. Now, you have given three answers which are not answering my question. You’re talking about other conversations or other arrangements with your mother-in-law. Why are you telling me about – why are you telling the court about arrangements with your mother-in-law when I’m asking you about whether you had a conversation with [Unju]?
THE INTERPRETER: Paragraph 42 is correct. But giving up or forgo – maybe giving up is incorrect.
MR THOMAS: Okay. Again, that wasn’t quite the question that I asked. This question – the question I asked was why are you answer my questions about a conversation with [Unju] by giving evidence about arrangements with your mother-in-law?
THE INTERPRETER:   Because that is what she stated and then she did forego.
MR THOMAS:   It’s just the – the real reason you are giving evidence about conversations or discussions you had with your mother-in-law because you think it will help your case.
THE INTERPRETER:   I have been telling the truth, but maybe something between English and Korean. I have – I have been giving you – was it open-ended question or free question? I was not answering in a free way. I’m not sure.
HJB Lee also gave evidence at Public Examination 3. Again, although somewhat confusing, the effect of HJB Lee’s evidence is as follows:
(a)HJB Lee could only obtain a bank loan of $450,000.[111]
[111]Affidavit A B K Meister 28.01.2021; annexure 5, page 99.5: “Like I said earlier I wanted the maximum loan but I could only get like $450K”
(b)At the settlement of the sale of the 8-10 Tangarra property, HJB Lee provided to her lawyer a bank cheque for $452,031.00, and another cheque for $65,491.89 “to pay the full amount required by the bank being $517,522.89”.[112]
[112] Affidavit A B K Meister 28.01.2021; annexure 5, page 96.1. These are the words of Mr Dante Aspite, the lawyer for HJB Lee, which HJB Lee confirmed.
(c)The $65,491.89 came from HJB Lee’s “savings and other money that she had”.[113]
[113] Affidavit A B K Meister 28.01.2021; annexure 5, page 97.2. These are the words of Mr Dante Aspite, the lawyer for HJB Lee, which HJB Lee confirmed
(d)After settlement Unju Lee remained on the 8-10 Tangarra property. HJB Lee told Unju Lee that Unju Lee will pay rent of $300 per week, and this would be deducted from “my $100K debt”.[114] HJB Lee then gave the following evidence:[115]
[114] Affidavit A B K Meister 28.01.2021; annexure 5, page 100.9
[115] Affidavit A B K Meister 28.01.2021; annexure 5, page 100.9 – 102
MEISTER Certainly, how long was Unju Lee in that property?
LEE Really I don't want to say this one she live one year and then just my mother in law come to me and then talk to me Unju borrow money from my mother in law $100K so my mother in law wanted me to pay $100K back as I technically owed Unju but at that time only one year spend that I didn’t have money so I say to my mother in law you can live my property so she say the time is no place she living so Unju move out my mother in law move in
MEISTER Is she living with you now?
LEE She move out now is everything is discovered everything everybody knows so its my brother in law and even my husband every family is no good relation so my mother in law live in my property because I cannot pay $100K to Unju. Crying and also she is 80 years old but crying .....
. . . .
MEISTER So the mother in law is not living with you now?
LEE Yeah
DANTE She lives here
LEE She live this property because this house is she don’t want to move out
. . .
MEISTER So you said your mother in law came to you and said that as you technically owed Unju $100K she wanted that $100K?
LEE Because my mother in law is very generous person but at that time she cant stay next house second floor so she needed money so she asked me I want to pay my mother in law Unju’s $100K debt
DANTE What I understand Unju had borrowed $100K from her mother being the mother in law. Unju was living in the property at 8-10 Tangarra for about a year. At the time the mother in law had to move out from next door as the property sold and then she approached her and said Unju owes me $100K, Unju cant pay me the $100K so it’s a payment by direction an assignment yeah
MEISTER An assignment that is what I am trying to work out but I cant feed that to the examinee
DANTE I understand but that’s their my instructions as to what had happened so if that helps I mean obviously it has got to come from her
MEISTER I am just trying to clarify the transaction
DANTE Yeah I understand what you are doing that's fine
MEISTER Because I wasn’t there
Unju Lee’s evidence at Public Examination 1
At Public Examination 1 Unju Lee gave the following evidence:[116]
T: so when you sold 8-10 Tangarra street, that was the property that was originally owned by your parents, which they then sold to you and you owed, pursuant to some document that you don’t have at the moment but the solicitors would have, your parents - because it would have been your parents at that stage -were owed a hundred thousand, which essentially means your mother, by the time settlement came around, it was just your mother.
L: she didn’t get paid though. In the end we said we can forego a hundred thousand dollars in order to settle to prevent from the whole two properties being repossessed.
T: out of the sale of the two properties, did your mother receive cash, cheque or other consideration of the amount or equal to the amount of a hundred thousand dollars?
L: no. she was just happy that it didn’t get repossessed. And also - you have to understand in Asian culture there is also disgrace if people find out, and we were considered to be relatively alright; and then all this is happening, so she was just more than happy to even give her pension money to make sure this doesn't go through, that this doesn’t get repossessed as well.
T: also with respect to this loan that your mother is owed of a hundred thousand dollars on that property, so that is your personal liability?
L: my personal liability.
[116] Affidavit A B K Meister 28.01.2021; annexure 2, page 42
Unju Lee was then asked why she did not disclose this liability in her statement of affairs; and Unju Lee gave the following evidence:
T: is there any reason that it didn't appear on your statement of assets and liabilities?
L: I just think it wasn’t necessary
T: it is still a liability
L: it is still a liability but I just didn’t think I needed to - I don't know - she wasn’t a creditor so to speak.
T: perhaps I’ll ask another question - what do you think should go on the assets and liabilities?
L: creditors, assets - the physical assets
T: okay, is your mother a creditor?
L: she is not. I mean I owed her, she said if I don't pay her that’s fine; if I can’t afford [to pay] because of all the bad things [that] have happened, she said I’m her child so she’s not like - again this is from Asian culture - she is not going to hold me to it.
T: she released you from that debt.
L: yeah
T: so she is no longer a creditor.
L: no. she was never a creditor but -
T: she was never a creditor -
L: yeah she was never a creditor.
T: when did that status of ‘never a creditor’ occur, before settlement or after settlement?
L: I did promise to give her the hundred thousand dollars once everything was settled and the business was doing okay [once I had] paid off some [of the] bank loan; but that never came because of all the trouble happening when everything with the bank - them trying to repossess the property - she said “you don't have to pay me as promised”. Dad passed away and she said “don't worry about it”.
T: when did that conversation take place?
L: I can’t tell you exactly sometime in between getting repossessed and selling the business
Unju Lee’s email of 4 July 2014
There is in evidence an email Unju Lee sent to a Ms Bronwyn Barber on 4 July 2014 by which she on forwarded the second of the two emails Unju Lee sent to Ms James on 8 January 2018 to which I refer above.[117] In her email Unju Lee sets out the circumstances in which she says she sold the 8-10 Tangarra property; and she gave the following explanation in relation to the $100,000 referred to in Unju Lee’s email to Ms James (errors in original):
Also that $100,000 was referring it to the deal between mum when I purchased 8-10 Tangarra Street Croydon Park off mum back in 2008 or 2009. When I sold it to Hye Jin Back there was no agreement that $100,000 was payable at any time, discount was given to make sure that she was able to afford it and to prevent banks repossession of the property.
Below is an email to the solicitor regarding this matter.
[117] Exhibit A, page 295
Events after 10 January 2013
On 2 June 2014 Unju Lee became a bankrupt on her own petition.
The 4-6 Tangarra property
According to DS Lee, the following occurred after the settlement of his purchase of the 4-6 Tangarra property:
(a)On the date of settlement NAB created a loan account in the names of DS and KH Lee with an opening debit balance of $600,000.[118]
[118] Affidavit D S Lee 17.03.2021, [47]
(b)After the term of the lease commenced there were times Unju Lee said she was having trouble paying the rent; she would pay DS Lee when she could afford it. DS Lee applied all the rent he received from Unju Lee towards the NAB loan. When she could not pay rent, Unju Lee told DS Lee that he could take the rent she owed DS Lee off the $300,000 he owed Unju Lee.[119]
(c)Unju Lee rented the 4-6 Tangarra property until 14 January 2014. She paid a total of $32,259.30 ($35,485.22 including GST) towards rent, which was $19,740.70 less than she should have paid. DS and KH Lee factored $19,740.70 towards the $300,000 DS and KH Lee owed Unju Lee.[120]
(d)In about early or the middle of 2013 DS Lee informed Unju Lee that he and KH Lee had decided to sell the 4-6 Tangarra property. DS Lee told Unju Lee that he would use the proceeds of sale to account to her for the balance of the $300,000. A conversation to the following effect occurred:[121]
DS Lee:Once we pay the Nab bank back for the loan we took out on the property, we will pay you the $300,000 after settlement. I’ll transfer it to your account.
Unju Lee:No don’t transfer it to me, I want the payments in cash only
(e)On 24 January 2014 DS and KH Lee settled the sale of the 4-6 Tangarra property for $1,050,000. The purchaser was “Boustany”. On settlement $600,000 of the proceeds of sale were paid to NAB, thus discharging the loan DH and KH Lee took out to purchase the 4-6 Tangarra property.[122] DS and KH Lee deposited $391,440.36 of the proceeds of sale into a joint bank account with NAB (NAB account 1804).[123] On the same day DS and KH Lee paid $33,025.00, being the balance of the deposit that was held by the real estate agent, into a separate NAB account (NAB account 1058).
(f)When DS and KH Lee received the proceeds of sale of the 4-6 Tangarra property DS Lee contacted Unju Lee and said that he wanted to pay her the $300,000 and that he would transfer the money to her. Unju Lee said: “No pay it to me in cash I don’t want a transfer”. DS Lee said he did not want to carry $300,000 cash in one go because it was dangerous for him. DS Lee said he would divide it and pay the money to Unju Lee “one by one”.[124]
[119] Affidavit D S Lee 17.03.2021, [48]
[120] Affidavit D S Lee 17.03.2021, [49]
[121] Affidavit D S Lee 17.03.2021, [51]
[122] Affidavit D S Lee 17.03.2021, [55]
[123] Affidavit D S Lee 17.03.2021, [56]
[124] Affidavit D S Lee 17.03.2021, [58]
DS Lee says he made the following payments to Unju Lee:
(a)Between 24 January 2014 and 10 March 2014 DS Lee transferred a total of $302,751.09 from NAB account 1804 to NAB account 1058.[125] During that period DS Lee withdrew from NAB account 1058 or cashed checks drawn on that account totalling $115,000.[126]
(b)Further, between 24 January 2014 and 10 March 2014 DS Lee withdrew $180,000 from NAB account 1058 to an account DS Lee held with the Commonwealth Bank of Australia named “Lee’s Newsagency Enfield” (CBA account). From the CBA account DS Lee withdrew $62,300 cash which was paid to Unju Lee.[127]
(c)DS and KH Lee made three payments totalling $68,500 - $6,500 on 22 January 2014; $7,000 on 27 January 2014; and $55,000 on 31 March 2014. These payments “were sourced from our savings that we held from our newsagency business which we accumulated rather than deposited into” the CBA account.[128]
(d)DS Lee also paid three creditors of Unju Lee, these being $971 to Cignall Angelo-Tobacconist, $488 to Dairy Farmers Milk supplier, and $12,000 to P Nassour, lessee of the 8-10 Tangarra property.[129]
[125] Affidavit D S Lee 17.03.2021, [59]
[126] Affidavit D S Lee 17.03.2021, [60]
[127] Affidavit D S Lee 17.03.2021, [61(a)]
[128] Affidavit D S Lee 17.03.2021, [61(b)]
[129] Affidavit D S Lee 17.03.2021, [61(c)]

Counsel for the Trustees further submitted that the evidence Mrs Lee had given in cross-examination should be accepted as the “truthful answer and reflective of what happened at the time and consistent with the contemporary documents”. That appears to be a submission that I should find the evidence Mrs Lee gives in her affidavit of the conversations she says she had with HJB Lee and Unju Lee about Mrs Lee using the $100,000 Unju Lee owed her to reduce the purchase price for the 8-10 Tangarra property as not truthful. If that is the intended submission, I would not accept it. Counsel for the Trustees did not directly challenge Mrs Lee’s evidence of the conversations, let alone put to her that her evidence is untruthful. Further, I have found that the 8 January emails support the evidence Mrs Lee gives in her affidavit of her conversations with HJB Lee and Unju Lee.
HJB Lee’s evidence
The Trustees submit that HJB Lee’s oral evidence on the arrangements she made in relation to $100,000 of the purchase price she was unable to pay was often non-responsive, involved her advocating her own case, and exhibited various changes of position. The evidence HJB Lee gave at the hearing which I have set out above bears out these criticisms to some extent. Nevertheless, the evidence HJB Lee gives in her affidavit is in a significant respect consistent with the evidence Mrs Lee gives in her affidavit. As I have already noted, HJB Lee deposes to a conversation she had with Mrs Lee before HJB Lee entered into the contract to purchase the 8-10 Tangarra property. Mrs Lee told HJB Lee not to worry if she does not have enough money to buy the property; Unju Lee owed Mrs Lee money and Mrs Lee would sort it out with Unju Lee. HJB Lee agreed. [226] That is consistent with Mrs Lee’s account of her conversations she says she had with HJB Lee; and is consistent with the 8 January emails. Further, HJB Lee’s account of the conversation she had with Mrs Lee was not directly challenged in cross-examination.
[226] Affidavit H J B Lee 16.03.2021, [37]
Unju Lee’s evidence
At Public Examination 1 Unju Lee said that she owed Mrs Lee $100,000 on the purchase by her of the 8-10 Tangarra property; that the debt Unju Lee owed Mrs Lee was not paid on settlement; and that was because “[i]n the end we said we can forego [sic] a hundred thousand dollars in order to settle to prevent from the whole two properties being repossessed”. Somewhat inconsistently, however, Unju Lee also said that the $100,000 she owed to Mrs Lee was Unju Lee’s personal liability. Later in the examination, when asked why Unju Lee did not include the $100,000 debt she said she owed Mrs Lee in her statement of affairs, Unju Lee said Mrs Lee was not a creditor. Unju Lee later said that Mrs Lee had discharged Unju Lee of the debt she owed. It does not appear that Unju Lee was taken to, and asked questions about the 8 January emails.
Given the inconsistent evidence Unju Lee gave at Public Examination 1 about whether Mrs Lee was a creditor of Unju Lee, the evidence Unju Lee gave at Public Examination 1 about those matters is not reliable; and I place no weight on it.
There are two matters, however, that may be relevant. The first is that Unju Lee’s not recording in her statement of affairs that she owed Mrs Lee a debt of $100,000 is consistent with Unju Lee having owed Mrs Lee that debt, but that Mrs Lee had discharged the debt. Second, there is the email Unju Lee sent to Ms James on 4 July 2014. Although I have set it out earlier in these reasons, it would be convenient to reproduce it here:[227]
Also that $100,000 was referring it to the deal between mum when I purchased 8-10 Tangarra Street Croydon Park off mum back in 2008 or 2009. When I sold it to Hye Jin Back there was no agreement that $100,000 was payable at any time, discount was given to make sure that she was able to afford it and to prevent banks repossession of the property.
[227] Exhibit A, page 295
Counsel for the Trustees in oral address referred to this email as an “admission against interest”.[228] Whether it is an admission against interest or not, I read this email as Unju Lee stating that HJB Lee had no liability to pay $100,000 of the purchase price she was not able to pay on the settlement of the 8-10 Tangarra property. That would be consistent with an agreement under which Mrs Lee agreed to discharge the $100,000 debt Unju Lee owed Mrs Lee in exchange for Unju Lee discharging HJB Lee from paying the $100,000.
[228] 25.05.2022 T28.5
Findings
Given the consistency of Mrs Lee’s evidence with the 8 January emails, the lack of any direct challenge to the evidence Mrs Lee gave of her conversations with HJB Lee and Unju Lee, the merited criticisms made of the evidence HJB Lee gave at the hearing, and the inconsistent evidence Unju Lee gave at Pubic Examination 1, I accept the evidence Mrs Lee gave of the conversations she had with HJB Lee and Unju Lee. I also accept the evidence HJB Lee gave in her affidavit to the extent it is consistent with Mrs Lee’s evidence. In particular, I accept the evidence I have set out in paragraph 49 of these reasons. On that basis I make the following findings:
(a)Before HJB Lee entered into the contract to purchase the 8-10 Tangarra property, Mrs Lee told HJB Lee that she had to buy the property, but she did not have to worry if she did not have enough money to buy it, because Mrs Lee would take care of it; Mrs Lee said Unju Lee owed Mrs Lee money; and Mrs Lee would sort it out. Mrs Lee further said that HJB Lee should just take out the loan to buy the house, and Mrs Lee will arrange everything else with Unju Lee.
(b)HJB Lee reluctantly agreed with Mrs Lee’s request, even though HJB Lee was not in a position to pay in full the purchase price for the 8-10 Tangarra property. HJB Lee trusted that Mrs Lee would arrange everything. HJB Lee therefore authorised Mrs Lee to do all that was necessary to be done to enable HJB Lee to purchase the 8-10 Tangarra property. That included Mrs Lee arranging for HJB Lee to attend a lawyer’s office and sign a contract for the purchase and sale of the 8-10 Tangarra property.
(c)Probably in a conversation that occurred after HJB Lee entered into the contract to purchase the 8-10 Tangarra property, Mrs Lee informed HJB Lee that Unju Lee owed Mrs Lee $100,000; she would ask Unju Lee to take off $100,000 from the sale price of the property; and that way the loan HJB Lee would get from the bank will be $100,000 less, so that HJB Lee can get the loan money. HJB Lee said “Ok, mother-in-law”.
(d)After Mrs Lee had the conversation with HJB Lee in (c), Mrs Lee had a conversation with Unju Lee in which she told Unju Lee that she owed Mrs Lee $100,000 from the time she had bought the 8-10 Tangarra property from Mrs Lee and the father; and that Unju Lee should take $100,000 off the sale price of the 8-10 Tangarra property to help HJB Lee. That way Unju Lee will have paid back Mrs Lee the $100,000. Unju Lee agreed.
(e)By sending the 8 January emails, Unju Lee intended to convey the effect of the discussion Unju Lee had with Mrs Lee, as set out in (d).
On the basis of these findings, I further find that:
(a)by no later than 8 January 2013 Mrs Lee, Unju Lee, and HJB Lee (through Mrs Lee) had agreed they would proceed to settlement of the purchase of the 8-10 Tangarra property on the basis that the balance of $100,000 of the purchase price HJB Lee would be unable to pay on settlement would be paid by Mrs Lee releasing $100,000 of the debt Unju Lee owed to Mrs Lee (Completion Agreement); and
(b)Mrs Lee, Unju Lee, and HJB Lee completed the settlement of the 8-10 Tangarra property pursuant to, and on the basis of, the Completion Agreement.
Legal effect of the Completion Agreement
Assuming Mrs Lee, Unju Lee, and HJB Lee entered into an agreement to the effect of the Completion Agreement, what was its legal effect immediately after the purchase of the 8-10 Tangarra property was settled? Relevant to the determination of that question are the facts and decision of the English Court of Appeal in In re Paraguassu Steam Tramroad Company (Ferrao’s Case).[229]
[229] In re Paraguassu Steam Tramroad Company (Ferrao's Case) (1874) LR 9 Ch App 355
In Ferrao’s Case a company sought to recover from Mr Ferrao an amount the company alleged to be unpaid on shares that had been issued to him. Mr Ferrao contended that the company had been paid pursuant to an agreement between a Mr Webb and the company under which the company’s liability to pay to Mr Webb a judgment in the sum of £3,900 would be partly paid by the company crediting £700 to the unpaid shares that were held by Mr Ferrao. The company credited Mr Ferrao’s share account with £700. The liquidator submitted the facts did not fall within the principles of Spargo’s Case[230] because no debt was due by the company to Mr Ferrao.
[230] Re Harmony and Montague Tin and Copper Mining Company (Spargo's case) (1873) LR 8 Ch App 407
The Court of Appeal (who did not call on counsel for Mr Ferrao) rejected the argument of the liquidator. James LJ said:[231]
The £700 was written off as between the company and Webb, and was written off on the other side as between the company and Mr Ferrao.
[231] In re Paraguassu Steam Tramroad Company (Ferrao's Case) (1874) LR 9 Ch App 355, at page 357
Mellish LJ said:[232]
In my opinion, the moment the company, in pursuance of that Judge's order, did credit the shares of Ferrao with the £700 so as to make them fully paid-up shares, that moment the £700 was paid by the company to Webb, just as much as if it were paid in cash. . . . Then, if it became paid by the company to Webb, it obviously follows that the £700 was also paid by Ferrao to the company, because crediting means acknowledging that they had received that amount in cash. It is exactly the same thing as if Webb had gone to the company and the company handed over to Webb £700 in bank notes, and then Webb had said, “I wish to pay up the shares of my friend Ferrao: there is the £700 in bank notes back again”. There was no need to go through that form; and, in my opinion, writing it off in the books is perfectly equivalent to payment.
[232] In re Paraguassu Steam Tramroad Company (Ferrao's Case) (1874) LR 9 Ch App 355, at page 357
The basis on which the Court of Appeal in Ferrao’s Case held that Mr Ferrao had paid in cash the nominal value of his shares applies to the settlement of the sale of the 8-10 Tangarra property pursuant to the Completion Agreement:
(a)Unju Lee is in the analogous position of the company in Ferrao’s Case: like the company in Ferrao’s Case, Unju Lee both owed and, on the tender of the instrument of transfer of the 8-10 Tangarra property, would be owed a debt, namely, $100,000.
(b)Mrs Lee is in the analogous position of Mr Webb in Ferrao’s Case: like Mr Webb in Ferrao’s Case, Mrs Lee was owed a debt.
(c)HJB Lee is in the analogous position of Mr Ferrao in Ferrao’s Case: like Mr Ferrao, on settlement of the 8-10 Tangarra property, on the tender of the instrument of transfer of the 8-10 Tangarra property, HJB Lee would owe a debt to Unju Lee of $100,000.
On completion of the sale of the 8-10 Tangarra property on 10 January 2013, that is, on HJB Lee accepting the tender of the instrument of transfer, and Unju Lee, in return, accepting the tender of all but $100,000 of the purchase price, Mrs Lee discharged $100,000 of the debt Unju Lee owed Mrs Lee in return for which Unju Lee discharged HJB Lee of the $100,000 of the purchase price HJB Lee was unable to pay. To adapt the words of Mellish LJ in Ferrao’s Case, Mrs Lee’s discharging the $100,000 debt Unju Lee owed to Mrs Lee in exchange for Unju Lee’s discharging HJB Lee of $100,000 of the balance of the purchase money was the same thing as Unju Lee giving $100,000 to Mrs Lee, but Mrs Lee saying to Unju Lee: “I wish to pay $100,000 for the balance of purchase money HJB Lee is unable to pay”, and Mrs Lee returning the $100,000 to Unju Lee. There “was no need to go through that form”, it being sufficient for the parties to proceed with the settlement of the 8-10 Tangarra property in the manner they did.
There is one point of distinction between the facts in Ferrao’s Case, and the Completion Agreement. In Ferrao’s Case book entries were made where the debt the company owed to Mr Webb was written off to the extent of the £700 Mr Ferrao owed the company. There is no evidence of any book entries in the case before me. That point of distinction, however, is not material. The book entries in Ferrao’s Case constituted the means by which the parties agreed to give effect to their agreement to discharge debts. In the case of the Completion Agreement, the parties agreed that the debts would be set off against each other immediately on the respective tender and acceptance of the instrument of transfer and all but $100,000 of the purchase price for the 8-10 Tangarra property being paid.
Counsel for the Trustees submitted that, even if an agreement to the effect HJB Lee pleads in her defence were made, HJB Lee gave no consideration for Unju Lee’s discharge of $100,000 of the balance of the purchase price; Mrs Lee provided the consideration. It is true that it was Mrs Lee who provided the consideration in the form of discharging Unju Lee of her liability to pay the $100,000 she owed Mrs Lee; but that does not mean that HJB Lee “gave no consideration”. As I noted above, for the purposes of s 120(1)(b) of the Bankruptcy Act, a transferee may give consideration by himself or herself or through another person whom the transferee directs or requests give the consideration on behalf of the transferee. I have found HJB Lee authorised Mrs Lee to do all that was necessary to be done to enable HJB Lee to purchase the 8-10 Tangarra property, even though HJB Lee was not in a position herself to pay in full the purchase price for the 8-10 Tangarra property. Given that finding, it is open to find, and I do find, that Mrs Lee entered into the Completion Agreement, and gave effect to that agreement for and on behalf of, and at the direction of, HJB Lee; and, in so doing, HJB Lee, as the transferee of the 8-10 Tangarra property, gave the consideration constituted by Mrs Lee discharging the $100,000 debt Unju Lee owed Mrs Lee.
Accepting, on the basis of Ferrao’s Case, that Mrs Lee’s discharging the $100,000 debt Unju Lee owed Mrs Lee in return for Unju Lee discharging HJB Lee of the $100,000 she was required to pay may be characterised as the payment by Mrs Lee of the $100,000 balance of purchase money, Mrs Lee’s payment was no different in character from the money HJB Lee borrowed from the bank that was paid at settlement on account of the purchase price on settlement. The bank, not HJB Lee, provided the money; and the bank did so at the direction of HJB Lee. It is true that in making that direction HJB Lee incurred a debt to the bank in the amount of the money the bank paid on settlement; but, in the absence of evidence to show that Mrs Lee intended to make a gift of $100,000 to HJB Lee, Mrs Lee’s discharging the debt Unju Lee owed to Mrs Lee similarly resulted in HJB Lee becoming liable to pay to Mrs Lee $100,000. HJB Lee became so liable on the basis of the principles stated by Willes LJ in Johnson v Royal Mail Steam Packet Company (emphasis in original):[233]
[N]obody can make himself the creditor of another by paying the other’s debt against his will or without his consent; this is expressed by the common formula of the count for money paid for the defendant’s use, at his request. That is the general rule, undoubtedly, but it is subject to this modification, that money paid to discharge the debt of another cannot be recovered unless it is paid at his request, or under compulsion, or in respect of a liability imposed upon that other.
[233] Johnson v Royal Mail Steam Packet Company (1867) LR 3 CP 38, at page 43
Thus, even if s 120(1)(b) of the Bankruptcy Act is to be construed as requiring the transferee to provide the consideration for the transfer of property personally, HJB Lee did provide consideration in relation to Mrs Lee’s discharge of the $100,000 debt Unju Lee owed to Mrs Lee; that consideration being the incurring of a liability to pay $100,000 to Mrs Lee.
The legal consequences of Mrs Lee having discharged the $100,000 Unju Lee owed to Mrs Lee in return for Unju Lee discharging HJB Lee’s liability to pay $100,000 of the purchase price and, for that reason, Mrs Lee paid $100,000 towards the purchase price of the 8-10 Tangarra property may go further. This may bring into play the principles stated by Gibbs CJ in Delehunt v Carmody:[234]
When a purchase is made in the name of one of two or more persons who contributed to the purchase price, and the relationship between the parties does not give rise to a presumption of advancement, the property will be held on a resulting trust for the persons who paid the price. Quite clearly, where the contributions to the purchase price have been made in unequal shares the property will be held on a resulting trust for the contributors as tenants in common in proportion to the amounts which each contributed: Calverley v. Green.[235]
[234] Delehunt v Carmody (1986) 161 CLR 464, at page 472
[235] Calverley v Green (1984) 155 CLR 242, at pages 246-247, 258
It is unnecessary to determine whether the principles of resulting trust apply, because that is not a question that has been raised in the proceeding.
The Trustees also submit that “the purported arrangement”, that is, the agreement pleaded in the defence, “does not deal with the $65,000 paid from unknown sources”; and that even if HJB Lee gave consideration for the $100,000, she did not give consideration for $65,000 of the purchase price. It is not open to the Trustees to make that submission, because it forms no part of their pleaded case that HJB Lee did not provide $65,000 of the purchase price. On the contrary, the further amended statement of claim pleads that HJB Lee paid $550,000 towards the purchase price of the 8-10 Tangarra property. In any event, on the findings I have made, it is open to further find that Mrs Lee arranged for the payment of the $65,000; that she did so pursuant to the authority I have found HJB Lee gave to Mrs Lee that she do all that was necessary to be done to enable HJB Lee to purchase the 8-10 Tangarra property; and, in those circumstances, the $65,000 was paid at the direction of HJB Lee and, for that reason, constituted HJB Lee giving the $65,000.
Conclusion
HJB Lee gave consideration in the amount of $650,000 for the transfer of the 8-10 Tangarra property; and, for that reason, the Trustees’ claim in relation to Unju Lee’s transfer of that property based on s 120(1) of the Bankruptcy Act fails.
Had I found that HJB Lee had only given consideration in the amount of $550,000 of the purchase price and, for that reason, HJB Lee did not give the additional consideration of $100,000, I would have invited the parties to provide submissions on whether the market value of the 8-10 Tangarra property was to be assessed having regard to Mrs Lee having a mortgage or charge over the property to secure at least $100,000 Unju Lee owed to her and, if the value of the property were to be valued on this basis, the market value of the property was $550,000.
Claim under s 121(1) of the Bankruptcy Act
Given I have concluded that HJB Lee did give consideration in the amount of $650,000 for the transfer of the 8-10 Tangarra property, the Trustees’ claim based on s 121(1) of the Bankruptcy Act also fails.
Claims based on breach of contract and equitable charge
I concluded that HJB Lee gave consideration in the amount of $650,000 for the transfer of the 8-10 Tangarra property because I have found that Mrs Lee paid $100,000 of the purchase price by discharging a debt of $100,000 Unju Lee owed Mrs Lee in return for Unju Lee discharging HJB Lee of her liability to pay $100,000 of the purchase price. That means that the full purchase price for the transfer of the 8-10 Tangarra property had been paid, which, in turn, means HJB Lee owes no amount under the contract for sale of that property. The Trustees’ claims for breach of contract, and their reliance on an alleged equitable charge, fail.

I should note that, had I found that $100,000 of the purchase price remained unpaid on settlement of the 8-10 Tangarra property, I would have accepted the Trustees’ submission that their action to recover the $100,000 would have been based on the charge that would have arisen on the transfer of the property; and that the limitation period provided for by s 42, rather than s 14, of the Limitation Act would have applied.
DISPOSITION
I propose to dismiss the DS and KH Lee proceeding and the HJB Lee proceeding. There is no reason why costs should not follow the event, and I will make an order in each proceeding that the applicants pay the costs of the proceeding. I will reserve to the parties, however, liberty to apply within 28 days after I pronounce orders to vary or discharge the order for costs I propose to make. These orders are not intended to deal with the question of costs in related proceeding CAG27/2021.

I certify that the preceding two hundred and forty-two (242) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 7 September 2023

File number(s):	ADG 512 of 2019 ADG 513 of 2019
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	7 September 2023
Catchwords:	BANKRUPTCY – applications under s 120(1) and s 121(1) of the Bankruptcy Act 1966 (Cth) that two properties were transferred by bankrupt for prices that were less than their respective market values – whether in the case of one of the properties the balance of the purchase price that was not paid on settlement was later paid by the transferee – not paid – whether in those circumstances trustee in bankruptcy’s right to commence proceeding to recover the balance of purchase price from transferee is statute barred – action barred – whether in the case of the second of the properties whether $100,000 of the purchase price was paid by a creditor of the bankruptcy discharging a debt of $100,000 the bankrupt owed the creditor in return for the bankrupt agreeing to discharge the transferee of her obligation to pay on settlement $100,000 of the purchase price – the $100,000 was paid in this way – whether the transferee gave $100,000 consideration – transferee gave consideration – applications dismissed.
Legislation:	Bankruptcy Act 1966 (Cth) ss 5(1), 58(1), 58(3), 58(4), 115(2), 116, 120, 121, 122 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 11.01 Limitation Act 1969 (NSW) ss 14, 42
Cases cited:	Ambrose v Poumako [2012] FCA 889 Anscor Pty Ltd v Clout (Trustee) [2004] FCAFC 71 Archer v Archer [2000] NSWCA 314 Brooker v Pridham (1986) 41 SASR 380 Brisbane City Council v Amos (2019) 266 CLR 593 Calverley v Green (1984) 155 CLR 242 Commissioner of Taxation v Lane [2020] FCAFC 184 Delehunt v Carmody (1986) 161 CLR 464 Dillwyn v Llewelyn [1862] EngR 908; (1862) 4 De G F & J 517; 45 ER 1285 Fiorino v Woodgate [1994] FCA 1023 Halse v Norton (1997) 76 FCR 389 In re Brown’s Estate [1893] 2 Ch 300 In re Paraguassu Steam Tramroad Company (Ferrao's Case) (1874) LR 9 Ch App 355 Inwards v Baker [1965] 2 QB 29 J M Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693 Johnson v Royal Mail Steam Packet Company (1867) LR 3 CP 38 Lo Pilato v Kamy Seedi Lawyers Pty Ltd [2017] FCA 34 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 Official Trustee in Bankruptcy v Lopatinsky [2003] FCAFC 109 Peldan v Anderson [2006] HCA 48 Ramsden v Dyson [1866] UKLawRpHL 7; (1866) LR 1 HL 129 Re Harmony and Montague Tin and Copper Mining Company (Spargo's case) (1873) LR 8 Ch App 407 Reliance Finance Corporation Pty Ltd v Heid [1982] 1 NSWLR 466 Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68 Russell v Scott (1936) 55 CLR 440 Sellers v One Step Plumbing Concrete Pty Ltd [2002] FCA 478 Sonenco (No 77) Pty Ltd v Silvia (1989) 24 FCR 105 Spencer v The Commonwealth [1907] HCA 82; (1907) 5 CLR 418 Tyler v Thomas [2006] FCAFC 6 Verge v Devere Holdings Pty Ltd (No 4) [2010] FCA 653 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 Williams v Lloyd (1933) 50 CLR 341 Young v Queensland Trustees Ltd (1956) 99 CLR 560
Division:	General
Number of paragraphs:	242
Date of last submission/s:	15 June 2022
Date of hearing:	23, 24, and 25 May 2022
Place:	Sydney
The First Applicant:	No appearance by, or on behalf of, the First Applicant
Counsel for the Second Applicants:	Mr I Thomas
Solicitor for the Second Applicants:	Andreyev Lawyers
Counsel for the Respondents:	Mr R W Tragenza
Solicitor for the Respondents:	Anderson Lawyers

ADG 512 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) IN THE MATTER OF UNJU LEE
BETWEEN:	PETER IVAN MACKS First Applicant DANIEL IVAN CVITANOVIC AND STEPHEN JOHN HUNDY AS TRUSTEES OF THE BANKRUPT ESTATE OF UNJU LEE Second Applicants
AND:	HYE JIN BACK LEE Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	7 SEPTEMBER 2023

ADG 513 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) IN THE MATTER OF UNJU LEE
BETWEEN:	PETER IVAN MACKS First Applicant DANIEL IVAN CVITANOVIC AND STEPHEN JOHN HUNDY AS TRUSTEES OF THE BANKRUPT ESTATE OF UNJU LEE Second Applicants
AND:	DONG SIK LEE First Respondent KYUNG HEE LEE Second Respondent