Metcalf v Zhang (No. 2) - [2019] NSWSC 1796

Supreme Court

New South Wales

Medium Neutral Citation: Metcalf v Zhang (No. 2) [2019] NSWSC 1796
Hearing dates: 20 March, 21 May & 4 July 2019
Date of orders: 19 December 2019
Decision date: 19 December 2019
Jurisdiction: Equity
Before: Slattery J
Decision:
Form of final relief settled. Amount to be distributed to the plaintiff in the Alexandria proceedings calculated. A single order for costs made against the defendant in both proceedings.

Catchwords: COSTS AND CONSEQUENTIAL ORDERS – the plaintiff and the defendant, formerly a couple in a domestic relationship, were in dispute as to their respective ownership interests in two properties: an investment property and a residential property – in the Court’s principal judgment, the Court declared that the investment property held by the couple was held by them beneficially in equal shares but that an account should be taken of the benefits flowing from the defendant’s advance of $60,000 into a mortgage offset account used to pay off the mortgage for the investment property – in the principal judgment, the Court also declared that the defendant held a 78% interest in the residential property they occupied – the Court directed that the parties bring in agreed short minutes of order – the remaining issues are now what final orders should now be made – how should the amount due to the plaintiff be quantified – what order for costs should be made in the proceedings.
Legislation Cited: Conveyancing Act 1919, s 66G
Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited: Metcalf v Zhang [2018] NSWSC 1998
Nobarani v Mariconte (2018) 359 ALR 31
Oshlack v Richmond River Council (1998) 193 CLR 72
Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep)
Category: Consequential orders (other than Costs)
Parties: Lex Metcalf (plaintiff/cross defendant)
Lijuan Linda Zhang (defendant/cross claimant)
Representation:
Counsel:
G W McGrath SC (plaintiff/cross defendant)
L Zhang in person (defendant/cross claimant)
Solicitors:
Pryor Tzannes & Wallis Solicitors (plaintiff/cross defendant)

File Number(s): 2016/371835; 2017/200262
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. In the Court’s first judgment, the Court made declarations about the relative interests of each of the plaintiff and the defendant in two properties known respectively as the Alexandria property (an investment property) and the Waterloo property (a domestic residential property in which the parties lived): Metcalf v Zhang [2018] NSWSC 1998. This judgment deals with consequential issues arising out of the first judgment, including costs.
This judgment does not repeat the findings in the Court’s first judgment and should be read together with the Court’s first judgment. Events, matters and persons are referred to both judgments in the same way.
Mr McGrath SC continued to appear for the plaintiff in the hearing about consequential issues. The defendant continued to appear for herself without legal representation.
In the conclusion of the Court’s first judgment, the Court declared that the Alexandria property was held in equal shares between the plaintiff, Mr Metcalf, and the defendant, Ms…

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.

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Details

Case: [2019] NSWSC 1796
Decision Date: 19 December 2019

CaseChat Overview and Summary

The case of Metcalf v Zhang (No. 2) involved a dispute between the plaintiff and the defendant, a former domestic couple, over their ownership interests in two properties. The dispute was resolved by the Court through a principal judgment which clarified their respective beneficial interests in the two properties. The Court had to determine the extent of the defendant’s contribution to the investment property and whether this contribution warranted an adjustment to the declared equal beneficial interest in that property. Additionally, the Court was required to ascertain the extent of the defendant’s beneficial interest in the residential property.

The Court examined the contributions made by both parties to the mortgage offset account for the investment property, and determined that the defendant's $60,000 contribution should be taken into account, though this did not alter the declared equal beneficial interest. In relation to the residential property, the Court found that the defendant held a 78% interest, while the plaintiff held the remaining 22%. The Court directed the parties to prepare agreed short minutes of order to outline these findings. The remaining issues pertained to the quantification of the amount due to the plaintiff and the determination of the appropriate costs order for the proceedings.

The Court deliberated on the appropriate method for quantifying the amount owed to the plaintiff and examined the principles guiding the determination of costs in such proceedings. The Court was mindful of the need to ensure a just and equitable outcome that reflected the contributions and circumstances of both parties. Ultimately, the Court issued orders quantifying the amount due to the plaintiff and made an order as to costs, taking into account the conduct of the proceedings and the contributions of each party.

Orders