1. Plaintiff’s gift of the Parramatta Property to the Defendant set aside on grounds of undue influence and, alternatively, unconscionable conduct. Plaintiff thereby entitled to a 50% interest in the Parramatta Property (50% being all that he seeks).
2. In the alternative, Plaintiff able to have the s 90UB Financial Agreement set aside for impracticability pursuant to s 90UM, thus allowing an order to be made pursuant to s 90SM of the Family Law Act 1975 (Cth) that he be entitled to a 50% interest in the Parramatta Property.
3. Trustees appointed for sale of the Parramatta Property pursuant to s 66G of the Conveyancing Act 1919 (NSW).
Catchwords:
EQUITY – Trusts and trustees – Constructive and resulting trusts – Family and domestic relationships – Where a de facto husband advanced the full purchase price for a house of which the de facto wife became the sole registered proprietor; whether the de facto wife held the property on trust for the de facto husband – Held: there was no trust, as the de facto husband intended to, and did, make a gift of the property to the de facto wife (although the transaction was set aside on other grounds).
EQUITY – Undue Influence – Unconscionable conduct – Special disability or disadvantage – Where the Plaintiff is a lonely, elderly man and the Defendant is a much younger woman; where parties are in a de facto relationship; where the Plaintiff spoke of committing suicide if the Defendant would not enter into, and remain in, a relationship with him; where the Plaintiff sold his house and, at the Defendant’s behest, used the proceeds to buy another house which she became the sole registered proprietor of; where the Plaintiff did not receive independent legal advice about the transaction – Held: transaction set aside on grounds of undue influence and, alternatively, unconscionable conduct. Plaintiff thereby entitled to a 50% interest in the property (50% being all that he seeks).
FAMILY LAW – De facto relationship – Jurisdiction – Effect of cross-vesting legislation – Where proceedings initially commenced under inoperable State legislation then re-pleaded under the Family Law Act 1975 (Cth), with leave granted to file out of time; consideration of whether the Supreme Court of NSW can hear a de facto financial cause; where one party denies the existence of the de facto relationship; where neither party wishes the matter to be transferred to the Family Court or Federal Circuit Court – Held: the Supreme Court has jurisdiction under cross-vesting legislation to hear a de facto financial cause and that the matter should not be transferred.
FAMILY LAW – Property – Financial agreements – s 90UB agreement – Where the property the subject of the agreement was owned wholly by one partner; where the property…
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
AGLC
Perry v Gao [2019] NSWSC 1022
Case
[2019] NSWSC 1022
Decision Date
CaseChat Overview and Summary
The case of Perry v Gao involved a dispute over the ownership of a house between the plaintiff, Perry, and the defendant, Gao, who were in a de facto relationship. Perry argued that he was entitled to half the property, while Gao claimed sole ownership. The matter was initially heard in the Supreme Court of New South Wales, which had to determine whether it had jurisdiction to hear the case under the Family Law Act 1975 (Cth), given that the parties had initially commenced proceedings under inoperable State legislation.
The court had to decide whether the Supreme Court of NSW had jurisdiction over de facto financial causes under cross-vesting legislation, and whether the matter should be transferred to the Family Court or Federal Circuit Court. The court also needed to address whether Perry's sale of his house and transfer of the proceeds to Gao, who became the sole registered proprietor of another house, constituted a trust or gift, and whether the transaction was influenced by undue influence or unconscionable conduct. Additionally, the court had to consider the enforceability of a financial agreement between the parties and the appropriate adjustment of property interests upon dissolution of the de facto relationship.
The court found that it did have jurisdiction to hear the de facto financial cause and that the matter should not be transferred. It held that Perry's transfer of the proceeds from the sale of his house to Gao did not create a trust, as he intended to make a gift of the property to her. However, the transaction was set aside on the grounds of undue influence and unconscionable conduct, as Perry was a lonely, elderly man who did not receive independent legal advice and was subjected to pressure from Gao. The financial agreement between the parties was deemed impracticable and was also set aside. Finally, the court ordered that Perry was entitled to a 50% interest in the property, which would be distributed to him following its sale by trustees.
The court ordered that Perry is entitled to a 50% interest in the property, to be distributed to him following its sale by trustees.