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Metcalf v Zhang

Metcalf v Zhang

Case [2018] NSWSC 1998 21 December 2018

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Supreme Court

New South Wales

Medium Neutral Citation: Metcalf v Zhang [2018] NSWSC 1998
Hearing dates: 13, 14 December 2017 & 23 March 2018
Date of orders: 21 December 2018
Decision date: 21 December 2018
Jurisdiction: Equity
Before: Slattery J
Decision:
Declarations made as to the relative interests of the parties in their two properties. Orders made for the sale of the Waterloo property. Directions issued for potential argument as to costs.

Catchwords:
REAL PROPERTY – property at Alexandria, NSW purchased by plaintiff and defendant in equal shares as tenants in common in 1994 – mortgage taken out by plaintiff and defendant to fund the acquisition of the Alexandria property – plaintiff and defendant execute a deed in 1994 by which they agree to hold the Alexandria property in equal shares – Alexandria property leased from 2001 until its sale in 2016 – mortgage repayments made using the rent from leasing the Alexandria property – between 2012 and 2015 the defendant makes additional payments totalling $60,000 into a joint offset account of the plaintiff and defendant in relation to the Alexandria property, to reduce the interest payable on the mortgage – Alexandria property sold in 2016 – proceeds of sale deposited into a joint offset account – the same day, the defendant withdraws the proceeds of sale from their joint offset account and deposits them into her own bank account, to which the plaintiff has no access – plaintiff claims his prima facie legal entitlement to a half share of the proceeds of sale – freezing orders made in relation to the defendant’s bank accounts – defendant Cross Claims seeking declarations she has more than a half share in the Alexandria property – whether the Alexandria property the subject of a constructive or resulting trust – whether the parties made equal, or other than equal, contributions, both financial and non-financial, to the acquisition of the property.

REAL PROPERTY – in 1996 the plaintiff and the defendant purchase a separate property at Waterloo as joint tenants – plaintiff and defendant have lived in the Waterloo property with their son since then – plaintiff brings a claim for appointment of trustees for sale under Conveyancing Act 1919, s 66G – whether a s 66G orders should be made – whether or not parties made equal contributions to the acquisition of the Waterloo property – what are the parties’ respective shares in the Waterloo property – what orders should be made for the division of the proceeds of sale.
FAMILY LAW – whether amendments in 2009 to the Family Law Act 1975 (Cth) deprive this Court of jurisdiction to hear these proceedings between two former de facto spouses – whether these proceedings deal with property and financial matters arising out of the breakdown of a de facto relationship or whether they come under the “carve out” of jurisdiction conferred on this Court by Family Law Act 1975 (Cth), s 90RC(2).
Legislation Cited: Conveyancing Act 1919, s 66G
Family Law Act 1975 (Cth)
Family…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Metcalf v Zhang

Details

AGLC: Metcalf v Zhang [2018] NSWSC 1998
Case: [2018] NSWSC 1998
Decision Date: 21 December 2018

CaseChat Overview and Summary

In the matter of Metcalf v Zhang, the plaintiff, Metcalf, and the defendant, Zhang, entered into a joint purchase of two properties, one in Alexandria and the other in Waterloo, in equal shares as tenants in common. The dispute arose from the sale of the Alexandria property and the division of the proceeds, as well as the respective shares of the Waterloo property. The parties also raised cross claims regarding the existence of trusts and the division of the Waterloo property. The case was heard in the Supreme Court of New South Wales.

The court was required to determine whether the Alexandria property was subject to a constructive or resulting trust, and whether the parties made equal contributions, both financial and non-financial, to the acquisition of the property. The court also had to decide whether the Family Law Act 1975 (Cth) deprived it of jurisdiction to hear these proceedings between former de facto spouses, and whether the proceedings dealt with property and financial matters arising out of the breakdown of a de facto relationship or whether they fell under the "carve out" of jurisdiction conferred on the court by s 90RC(2) of the Family Law Act 1975 (Cth).

The court found that there was no constructive or resulting trust in relation to the Alexandria property, as the parties had agreed to hold the property in equal shares and had made equal contributions to the acquisition. The court also found that the proceedings did not fall under the "carve out" of jurisdiction conferred on it by s 90RC(2) of the Family Law Act 1975 (Cth), and therefore it had jurisdiction to hear the case. The court ordered that the proceeds of sale of the Alexandria property be divided equally between the parties, and that the Waterloo property be sold and the proceeds divided equally, subject to any claim by the plaintiff for contributions made by him to the acquisition of the property.

The court also found that the defendant had made contributions to the acquisition of the Waterloo property, and that the parties' respective shares in the Waterloo property would be determined by the court after hearing further evidence. The court made orders for the appointment of trustees for the sale of the Waterloo property and the division of the proceeds.

Orders