Khiem Tran died on 20 July 2018 aged 62 years. He was survived by his three sons, Tony (‘the plaintiff’), Anthony and John, as well as his partner, Lan Nguyen, and his former wife, Kim Lien Thi Tran.
Probate of the deceased’s last will was granted to Michael Chau Trung Hoang (‘the defendant’) on 26 November 2018. The inventory of assets filed with the application for probate records that the deceased’s estate was estimated to have a net value of $865,788.
The plaintiff seeks to enforce a written agreement dated 6 June 2017 (‘the deed’) and asserts that pursuant to the deed, the deceased was to pay him $300,000 and that he failed to do so. The defendant admits to the existence of the deed, but denies that he is obliged to pay the plaintiff.
For the following reasons the Court has determined that:
(a) the gift expressed under cl 1(a) of the deed cannot be specifically performed; and
(b) while cl 1(a) may form the basis of common law rights, the plaintiff did not plead any losses or make submissions specifically in this regard.
The deed
The deed is a typed document and has a cover sheet titled ‘Deed of Agreement’. It is expressed to be between the plaintiff, the deceased and Anthony. The deceased and Anthony are referred to as ‘[f]ather’ and ‘[s]on’ respectively. After setting out brief recitals, the typed text of the deed provides under cl 1 ‘Transfer of Monies’:
(a)The [f]ather shall expressly and irrevocably gift [the plaintiff] of [Bouverie Street] an amount of $300,000 ([p]ayment) by Wednesday 26 July 2017.
(b)The [plaintiff] must immediately provide a written receipt to the [f]ather and son once the [p]ayment has been received and cleared in his bank account.
(c)The [s]on,…
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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AGLC
Re Tran; Tran v Hoang [2021] VSC 318
Case
[2021] VSC 318
Decision Date
CaseChat Overview and Summary
The dispute in the case of Re Tran; Tran v Hoang involved the parties Tran and Hoang. The core issue was whether Tran had established a binding agreement for Hoang to vacate the premises, and if Tran could enforce this agreement through specific performance. Additionally, the court needed to determine whether there was an implied term of reasonable endeavours in the agreement and whether Hoang was estopped from denying the enforceability of the agreement. The case also examined if Hoang's conduct was unconscionable and whether the parties intended to establish a trust.
The legal issues required the court to consider the enforceability of the dispositive deed, which was a written agreement between the parties. The court needed to determine if there was an implied term of reasonable endeavours in the agreement, which would require Hoang to make efforts to vacate the premises. The court also had to decide if Tran was estopped from denying the enforceability of the agreement. Furthermore, the court examined whether Hoang's conduct was unconscionable, which would prevent him from relying on technical defences. Finally, the court needed to determine if the deed was intended to establish a trust, which would require the satisfaction of certain legal criteria.
The court examined the nature of the dispositive deed and concluded that it did not establish a trust, as it did not satisfy the legal requirements for a trust. The court found that there was no implied term of reasonable endeavours in the agreement, as the parties had not explicitly included such a term. The court also found that Tran was not estopped from denying the enforceability of the agreement, as there was no evidence of reliance or detriment on Tran's part. The court held that Hoang's conduct was not unconscionable, as he had not acted unfairly or taken advantage of Tran. The court ultimately found that Tran was not entitled to specific performance of the agreement.
The court ordered that Tran was not entitled to specific performance of the agreement, and that Hoang was not estopped from denying the enforceability of the agreement. The court further ordered that Hoang was not liable for any breach of the agreement. The court did not find any unconscionable conduct on the part of Hoang, and therefore, he was not prevented from relying on technical defences.