Siu v Li
[2012] NSWSC 609
•08 June 2012
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Siu v Li [2012] NSWSC 609 Hearing dates: 14, 15, 16 May 2012 Decision date: 08 June 2012 Jurisdiction: Equity Division Before: Windeyer AJ Decision: Orders for sale of property made.
Money claim dismissed.
Cross claim dismissed.
Catchwords: EQUITY- equitable remedies- where plaintiff paid full purchase price for defendant's new home- proceeds from the sale of the defendant's old home paid to plaintiff but significant balance still owing- plaintiff claimed whole balance payable but defendant claimed payment had discharged the debt due to the plaintiff- parties reached agreement witnessed by several church members and signed statutory declaration that plaintiff would receive 48.84% of proceeds from sale of defendant's new home and defendant would receive balance- agreement did not give plaintiff interest in property- parties to agree on appropriate orders to bring about a sale and plaintiff entitled to receive 48.84% of the proceeds.
CONTRACT- series of payments made by plaintiff to defendant over period of several years- where plaintiff claimed that every payment was by way of a loan and defendant claimed that the payments were made voluntarily by the plaintiff as gifts towards the establishment of a home church in rural China- whether moneys recoverable as loans.
FAMILY LAW AND CHILD WELFARE- Property (Relationships) Act 1984- s 5(1)(b)- whether parties in close personal relationship- whether relationship for period of 2 years- whether arrangement for free accommodation in return for non payment of purchase price of home was reward under s 5(2)(a) of Act- whether adjustment under s 20 should be made.Legislation Cited: Conveyancing Act 1919, s 66G
Property (Relationships) Act 1984Cases Cited: Hayes v Marquis [2008] NSWCA 10 Category: Principal judgment Parties: William Siu (Plaintiff)
Rui Fen Li (Defendant)Representation: Counsel:
T J Morahan (Plaintiff)
Zhang Shijing Lawyers (Plaintiff)
J Merkel (Defendant)
Solicitors:
Northern Suburbs Lawyers (Defendant)
File Number(s): 2009/289751
Judgment
HIS HONOUR:
Outline
This action is in two parts. In the first part the plaintiff claims an interest in property 275 Old Armidale Road, Stannifer (Stannifer) of which the defendant is the registered proprietor, or in the alternative, claims an interest in the proceeds of sale of that property. In the second part the plaintiff seeks repayment of sums of money totalling $260,258 plus $HK30,000 plus $US2,000 claimed to be monies advanced to the defendant repayable by the defendant on demand. In addition, there is a cross claim by the defendant claiming relief under the Property (Relationships) Act 1984 (the Act) on the basis the cross claimant was a person in a close domestic relationship with the plaintiff as provided for by s 5(1)(b) of that Act.
Facts
The plaintiff was born in Hong Kong and is a retired pastor in the Seventh Day Adventist Church. He is aged 84. He joined that Church in Hong Kong. He married in 1966 and came to Australia with his wife, Gloria, in 1972. They worked for many years in the kitchen at the Seventh Day Adventist Hospital in Wahroonga. They met the defendant, who is now aged 48, and her then husband at the branch of the Church in Strathfield in 2003, the defendant and her husband also being Seventh Day Adventists. There is no evidence as to what happened to the husband of the defendant, but he has no part in this story and has disappeared from the scene.
In 2004, Gloria had a stroke and was treated at the hospital in Wahroonga for a long period. She was discharged in May 2005 into a nursing home at Kings Langley. The plaintiff was at that time living at Hornsby and the defendant, who owned a house at Kings Park (which is near Kings Langley) offered the plaintiff a room at her home and he moved there together with another Church member, Pastor Jaing. The plaintiff's evidence was that he was to pay $250 and that he discharged that obligation by payment of a lump sum of $7,000. I will return to that.
Towards the end of 2005 the defendant began looking for another home in the country. She found Stannifer. She did not have the money to pay for it and the plaintiff gave to her or paid direct the deposit of $41,500 on 3 February 2006 and the balance purchase monies of $389,732 in March 2006. At this stage the defendant still owned Kings Park. There is conflicting evidence as to whether it was agreed that when Kings Park was sold, the sale monies would be paid to the plaintiff in discharge of any liability for the monies advanced for Stannifer or whether it was agreed those monies would be paid to discharge the defendant in part with any balance remaining outstanding.
The defendant has a daughter now aged 13. The daughter lives at home and is subject to home schooling by her mother. The two moved into Stannifer after settlement of the purchase on 1 March 2006. Gloria died in February 2006 but the plaintiff remained at Kings Park until early 2007 when he went to Hong Kong on a visit. On his return he found Kings Park had been sold and he moved to Stannifer in June 2007.
On 8 March 2006, the defendant signed a note, written in Chinese by the plaintiff, addressed to Audrey Chong, a solicitor acting for the defendant on the sale of Kings Park in the following terms (after being translated into English):
"To: Audrey Chong
My name is Rui Fen LI. I bought the house at 277 Old Armidale Road, Stannifer. I borrowed money from William SIU (Wei Lian Shao) to buy this house. When I sell my house (at 40 Faulkland Cres. Kings Park 2148), please pay all the money from selling the house that belongs to me to Wei Lian Shao, William Siu.
My signature (signature)
8 March 2006"
Kings Park was sold in 2007, and after discharge of mortgage the net proceeds of sale of $220,976 were paid by the solicitor to the plaintiff pursuant to that authority. As I have said, there remains a dispute as to whether this payment discharged the debt due to the plaintiff in full or in part only.
The plaintiff stayed at Stannifer until about June 2008 when he had a car accident, after which he moved to live with a Dr Wu at Cabramatta.
In the period between January 2005 and September 2008, the plaintiff paid to or at the request of the defendant, sums of money totalling the figures set out in paragraph 2. I will return to this. In December 2008 the plaintiff remarried, his new wife being Mrs Zhou Qian Chen.
In early 2008 the plaintiff asked the defendant to pay $200,000 which he said she owed him. Whether this was the balance of the purchase money of the house or amounts paid or agreed to be paid is not clear. Again, in early 2009 the plaintiff demanded payment of monies he claimed to be due to him.
On 20 May 2009, there was a meeting at the home of Lee Chee who was a member of the same Church as the parties and who then lived at Greenacre. The plaintiff, his wife, the defendant, Pastor Chong and Lee Chee were present. After discussion the plaintiff says that the following agreement was reached: that the defendant would pay him the balance of the monies owed to him, that she would give him a 50% interest in Stannifer and would agree to add his name to the certificate of title to that property and that his wife could be added as well if he wished that to happen.
Nothing happened as a result of that meeting as it seems that the defendant told Pastor Chong that she had changed her mind and a second meeting was then arranged to take place at the Chinese Seventh Day Adventist Church at Strathfield of which most participants appear to have been members. The meeting was attended by 16 people, including the plaintiff, his wife, the defendant, Lee Chee, Pastor Chong, Dr Wu and Pastor Chan who appeared to be in charge. It seems to have been a meeting called to decide the dispute although it is not claimed that those present, apart from the parties, had any authority or right to determine anything. Nevertheless at the conclusion of the meeting a document headed "Statutory Declaration" in the form following was written out and signed by some of those present including the plaintiff and the defendant. It is accepted that this superseded any agreement made in May 2009. The claims of the plaintiff, so far as Stannifer is concerned, are founded on this document, so I will deal first with this part of the claim.
The wording of the statutory declaration is as follows:
"STATUTORY DECLARATION
NSW OATHS ACT 1900
We Rui Fen Li and William Wai Lim Shiu of 275 Old Armidale Rd, Stannifer 2369 in the State of New South Wales do hereby solemnly declare and affirm that:-
agree to abide by the decision of the Chinese Seventh-day Adventist Church at a meeting convened on Oct 1 2009 in the presence of sixteen members of the said Church board and other interested support members.
The decision being
(1) The property a [sic] 275 Old Armadile [sic] Rd Stannifer NSW 2369 be sold & the cheque to be given to William Siu.
(2) The net proceeds from the sale of the property be divided between the two persons above - with William Siu receiving 48.84% and Leah Rui Fen Li receiving 51.16%.
(3) All other money will no longer be requested in the future."
[Various signature including the parties]
And I make this solemn declaration, in accordance with the Oaths Act, 1900 and subject to the punishment by law provided for the making of any wilfully false statement in any such declaration.
Declared at Strathfield )
this First October day of )
2009 )
before me: ) (Sgd) Ruifen Li
(Sgd) John Chan
JUSTICE OF THE PEACE (Vic) (Sgd) William Siu
WILLIAM SIU
Minister of Religion
JOHN CHAN
Print full name (and number) of JP"
Additional Facts Relating to Stannifer
After giving credit for the sum of $220,976 it seems that the amount remaining unaccounted of the original purchase price for Stannifer is $209,756. The question really is whether that amount or some percentage of the sale price of Stannifer namely 48.84% remains due or in the alternative, that nothing is due.
The claim of the plaintiff is that the defendant said to him when she purchased Stannifer with his money that she would repay him; that if there were insufficient funds from the sale of Kings Park, then she would pay the balance to him; and that she also said that if he did lend the money he could live at Stannifer rent free, and if he decided to leave, she would have the money for this even if she had to sell Stannifer.
The story of the defendant is unsurprisingly quite different. She says that the plaintiff encouraged her to buy Stannifer, that although there was some problem he provided the funds as agreed and that when Kings Park was sold and he received the proceeds of sale he said to her "The house is now yours" and gave her the receipt for the balance purchase monies. This document, which was put into evidence, is not a receipt at all, but a copy of the bank cheque application form.
The defendant denies that there was any agreement made at the first meeting. As to the second meeting, which has generally been called "the Church meeting" the defendant says that she was given only five minutes to speak, that any decisions were that of the people there, not of her, that she did not say that she agreed with the decision which she felt was imposed on her. A claim based on undue influence was not pursued.
There is one important piece of evidence which supports the plaintiff's claim of the agreement made at the Church meeting. That is a letter dated 28 January 2010, Exhibit A, written by JYP Legal as solicitors for the plaintiff about the sale of Stannifer. That letter is as follows:
"Mr Yu Chen
Zhang Shijing Lawyers
Suite 13, Level 1
301 Castlereagh Street
SYDNEY NSW 2000
Dear Yu
Rui Fen Li sale of 275 Old Armidale Road, Stannifer NSW 2369 (Property)
We refer to your fax of 27 January 2010.
We confirm that a draft Contract for Sale of the above Property has already been prepared and our client will use all reasonable endeavours to enable the sale of the Property by putting it on the market. We confirm that your client would like to appoint Ditchfield First National Real Estate (Agent) to be the vendor's agent.
Our client has a bona fide intention of upholding the agreement executed between her and your client on 1 October 2009 at the Chinese Seventh-day Adventist Church (Church) as she believes this agreement was made in the presence of God. Should your client insist on the sale being effected by way of auction then our client is agreeable to execute another agreement at the Church which states that the sale of the Property should be effected by way of auction. Our client sincerely believes that selling the Property by way of auction was not agreed to at the time of executing the agreement on 1 October 2009 and does not wish to sell the Property in this manner.
In the meantime, our client will proceed to make arrangements with the Agent to put the Property on the market within the next 7 business days.
If you have any questions, please contact us on (02) 9267 7171."
This letter supports the case that an agreement was made at the Church meeting. In cases such as this, where opposing versions are given and neither party appears to be 100% reliable, letters such as Exhibit A can assist in the determination of which version of the events should be accepted as correct.
In addition there is the evidence of Dr Wu who attended the Church meeting. In paragraphs 16 to 22 of his affidavit of 20 April 2011, he deposed as follows:
16. I recall during the Meeting, the Plaintiff said words of the following effect:
The Defendant [sic] said: "The Stannifer property was never intended to be a gift to you. I made this very clear from the first day I lent you the money. How could I possibly offer you the Stannifer property as a gift when I at that time don't even own a property myself and have to rent from you! You and I as well as everybody need to offer their own monies to God but not to use other people's money without consent for the sale of the ministry works".
17. I also recall that Pastor Daniel Chong said words of the following effect:
Pastor Chong said: "I was present at the meeting held in Lee Chee's house on 20 May 2009 and I can confirm that in this meeting, the Defendant promises to repay the Plaintiff the balance of the money and put his name on the Certificate of Title for the Stannifer property."
18. I also recall that Pastor John Chan who was chairing this meeting said in the words of the following effect:
Pastor Chan said: "I announce that this meeting now comes to an end and the following resolution has been reached between William Sui and the Defendant I the following terms: the Defendant to transfer 48.84% interest in Stannifer property to William Siu".
Pastor Chan said to the Plaintiff: "William Siu do you agree with the resolution of this meeting as I gave just announced?"
The Plaintiff said: "Yes."
Pastor Chan said to the Defendant: "How about you, do you agree to the same?"
The Defendant said: "Yes".
19. After obtaining an affirmative 'Yes' from the Defendant and the Plaintiff, Pastor Chan decided to use the voting method to ascertain the opinion of the rest of the remaining attendees.
20. I vote for affirmation.
21. I then recall that Pastor John Chan said to all the attendees in words of the following effect:
Pastor Chan said: "The defendant and William Siu now have come to an agreement. To prevent further disputes I ask William Siu and the Defendant to sign a Statutory Declaration under the NSW Oath Act. This is to be signed by both parties, and after they have signed this document will be binding on both parties. Do you two understand?"
The Defendant said: "Yes I understand".
The Plaintiff said: "Yes I understand".
22. After that Pastor Chan then arranged the draft Statutory Declaration in English and it was signed and witnessed accordingly.
Pastor Chong, who was also called by the plaintiff, in an affidavit of 20 April 2011, confirmed the plaintiff's version of the first meeting at the house of Lee Chee, then gave the following evidence in paragraphs 16 to 19 of that affidavit:
16. I recall that during the second meeting, the Plaintiff and I said the words of the following effect:
The Plaintiff said to the Defendant: "You promised me to repay me the balance of monies you owed to me and give me 50% interest of the Stannifer Property. All the attendees at the first meeting are well present in this meeting and they can testify what I just said."
I said: "Yes, I was there at the First Meeting on 20 May 2009 and I can confirm that what William Siu said was true."
17. I also recall that during the second meeting, the Plaintiff, the Defendant and Pastor John Chan had a conversation in the words of the following effect:
Pastor Chan said: "I announce that the meeting now comes to an end and the following resolution has been reached between the Plaintiff and the Defendant in the following terms: The Defendant agrees to transfer 48.84% interest in the Stannifer Property to the Plaintiff."
Pastor Chan then said to the Plaintiff: "William Siu do you agree with the resolution of this meeting as I gave just announced?"
The Plaintiff said: "Yes".
Pastor Chan then said to the Defendant: "How about you, do you agree to the same?"
The Defendant said: "Yes".
18. I recall that during the second meeting, the Plaintiff, the Defendant and Pastor John Chan had another conversation in the words of the following effect:
Pastor Chan said: "OK the Plaintiff and the Defendant now have come to an agreement. To prevent future disputes I ask the Plaintiff and the Defendant to sign a statutory declaration under NSW Oath Act. This is to be signed by both the Plaintiff and the Defendant. After you two have signed this document, this document will be binding on both of you. Do you two understand?"
The Defendant said: 'Yes".
The Plaintiff said: "Yes".
19. I then saw that the Plaintiff and the Defendant signed the Statutory Declaration. I, together with Ruth Miao and Pastor Chan then witnessed the said Statutory Declaration by signature.
Lee Chee was called by the defendant. Her evidence was somewhat different. It is in paragraph 6 of her affidavit of 15 March 2011 as follows:
6. I refer to paragraph 71. I was present at that meeting. The defendant did not say these words. Plaintiff said words to the following effect
"You borrowed money to buy the Stannifer property. You have paid me from the sale of the Blacktown property. Now I want the rest back"
Defendant said words to the effect "I wanted to sell my house in Kings Park and move to the country to home school my daughter. You had just settled in and didn't want to move. You said I will pay for the Stannifer property and you can return me the money when you sell Kings Park house."
The defendant then took out a piece of paper and Chris Yeo read it to the meeting in Chinese
Chris Yeo: "In this agreement the amount is not mentioned. So however much Rui Fen Li wants to give back she gives back. Its her choice."
Defendant: "Because I could not sell my house when I wanted to, the price of the house dropped and when I sold it I lost a lot of money"
David Chung: "I suggest that what you lost should be deducted"
Mrs Wu: "When William was staying with us Ruifen Li rang a few times asking for money."
Defendant: "Uncle Sui asked me to do certain things to the home church so when I finished doing what he wanted I had to let him know the cost."
Dr John Wu: "You cannot use other peoples money to do your mission work."
Defendant: "My family brought [sic] this property to do mission work. Uncle Sui wanted to work together with us. It was his choice to willingly donate to this work."
Mrs Wu: "William has no money left and he has to borrow money from me."
Defendant: "If you need money you can ask me but not in this way"
Defendant: "Uncle Sui do you remember when I gave you the cheques for the King's Park House you gave me the receipt for the Stannifer property and said The house is now yours'. Do you remember that?"
Plaintiff: "I returned them you to because it is in your name."
I said: "Uncle Sui encouraged Ruifen to buy this place because he wanted to do mission work together with her. He donated the money willingly. He donated the money to God"
John Chan said: Ruifen is not God."
People were talking over the top of each other
John Chan: "We have to finish the meeting soon."
Someone said: "Just sell the place and split half half"
Some one else said: "This is simple just sell the place and split half half"
The statement "Just sell the place and split half half" was said by some one again.
Daniel Chong: I have worked this out. The split should be 48.84% to William and 51.16% to Ruifen Rui Li."
Ruth Miao: "I make the motion that the Stannifer property be sold and split between the two of them."
John Chan: "Do you agree to split in this ratio"
Plaintiff: "Yes"
I did not hear the Defendant say anything.
John Chan said: "We put it to a vote".
The plaintiff's witnesses were cross examined, but stuck to their story. In particular Dr Wu emphasised the meeting was about Stannifer only and nothing else.
I find for the plaintiff on this question. In other words, I find an agreement in terms of the statutory declaration was made. It is not longer contended - at least not seriously - that the agreement was not that of the defendant as her will was overborne. The letter from her solicitor would make it almost impossible to find otherwise.
The agreement does not give the plaintiff an interest in the property. He has not and did not have a caveatable interest. There has been no claim of a resulting trust. This was made clear by counsel for the plaintiff at the commencement of the hearing under enquiry from me. An interest in the proceeds of sale of property does not give an interest in the property.
There was admitted into evidence, without objection, a letter from estate agents at Inverell expressing an opinion that the reasonable selling price for Stannifer was in the vicinity of $320,000 to $330,000. If the higher figure is correct, then after allowing for the commission and other costs of sale, a reasonable figure might be somewhere in the middle or towards the lower end. If it were the lower figure, then 48.84% of that figure would amount to $156,288 which is, of course, less than the purchase price for Stannifer advanced by the plaintiff less the monies received by him after sale of Kings Park. While this might be to the advantage of the defendant that is a position which is accepted by the plaintiff as he relied on the agreement reached in the statutory declaration. The percentages do not quite accord with the contributions to the purchase price of Stannifer by the plaintiff and the amount provided by the defendant by way of the proceeds of sale of Kings Park but they are very close.
The relief the plaintiff claims in the statement of claim is predicated upon his having an interest in Stannifer and an order for the appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 is sought and two solicitors have been nominated as trustees and have consented to act.
That order cannot be made. However, the defendant has had about two and a half years in which to sell the property and has not done so. There is no claim for an order for specific performance. It should not be for the court to work out the relief. The parties should agree on appropriate orders to bring about a sale. As there does not appear to be any dispute as to value, the parties could agree to an order that the defendant take steps to put the property on the market for private sale at $320,000 or some other figure within ten days and if the property is not sold at that figure, or any other figure agreed by the parties within two months then the property could be put up for sale by auction at a very conservative reserve price determined in some way with the proceeds to be divided in accordance with the agreement. Any sale should allow for a two month settlement period as that would enable the defendant to make arrangements for other accommodation for herself and her daughter. An alternative might be for the defendant to pay to the plaintiff a sum in the order of $156,288 in settlement of this part of his claim.
The remarks which I have made in the last paragraph are all dependent upon no order to the contrary being made in favour of the defendant pursuant to her cross claim under the Property (Relationships) Act.
Lastly on Stannifer claims based on a fiduciary relationship were abandoned. The estoppel claim pleaded is not supported by evidence and in any event is precluded by the agreement at the Church meeting.
Claim relating to sums other than the purchase price for Stannifer
The payments claimed to be loans are set out in the amended statement of claim. I will deal with them in turn.
17 January 2005 - $32, 658:
This was a payment made for a car for the defendant. The plaintiff says the defendant asked him to buy it for her, he refused. But the defendant then asked whether he would lend her the monies which he agreed to do on her guaranteeing to repay it. Later the car was damaged and an insurance claim resulted in payment to the defendant of $24,000. The plaintiff then demanded repayment of the full loan from the defendant but she refused.
The defendant denies this. She says the plaintiff said he would pay and that he did not say it was a loan. She said that when the insurance monies were received the plaintiff said that she should use it to buy another car.
20 September 2006 - $50,000:
The plaintiff says the defendant spoke to him by telephone from China and asked if he could lend her about $50,000 to build a new home on her family's land in Liao Ning Province of China as some of her relatives lived in poverty. She wanted to help them. The plaintiff said that the defendant said to him that this would also help to spread the gospel. Money was to be sent to an account of the sister-in-law of the defendant.
There is no dispute the money was sent. The defendant, in her affidavit, denies that her family were poor. In fact she says they were well off even if cross examination of the plaintiff appeared to proceed on the basis of instructions to the contrary. The claim was the money was to be used to build a home church in the country.
October 2006 - $50,000; $HK30,000 and $US2,000:
The plaintiff visited Hong Kong in October 2006. The defendant was in rural China. She asked him to visit Liao Ning Province where the new house was to be built which he did. He said the defendant said that she and her family were grateful to him for lending the money and that more than the $50,000 given was needed. She asked for more. He said that he had $50,000 Australian plus 30,000 Hong Kong dollars and $US2,000 and he said that she said at paragraph 96 of his affidavit of 20 December 2010:
96. At that time I had conversation with the Defendant in the words of the following effect -
D said: "I am sorry to say that $50,000 is not enough to build the Liao Ning Property. I have to ask you to lend me more money for this purpose."
I said: "How much do you need?"
D said: "I can't say exactly how much because there's more work to be done. Can you tell me how much cash money can you lend me right now?"
I said: "I do have some money with me for my trip. I have with me about $50,000 AUD, $30,000 HKD and $2,000 USD."
D said: "I have to ask you to lend me all of your money. I really need this money for the Liao Ning Property. You can see how poor my relatives are living here."
I said: "OK, you must pay me back anytime I demand it."
D said: "I guarantee I will repay you back."
The defendant denied the conversation. She said the money was used to buy a 4-wheel drive and to fix the road to the new house.
13 April 2001 - $4,000; 24 April 2001 - $4,000; 30 April 2001 - $4,000:
The plaintiff said these payments were lent to the defendant to use on the rural house, the second being for a heating system there. The defendant says $4,000 for an air ticket. She denied receiving the balance but I find that she did.
30 April 2007 - $37,100:
The plaintiff said the defendant said she was going back to China soon and asked him to lend her this amount of $37,100 for the Liao Ning property. The defendant says she did not ask for it but the plaintiff just gave it to her. Her story is in paragraph 122 of her affidavit as follows:
122. My family had planned a smaller home church which they could afford to pay for with their available money which were the proceeds from the sale of my mothers house, contributions from my brother and my sister and a small amount of money I was able to give. From the plaintiff's first visit to the property on the 26th of September 2006 he urged my family in China to enlarge their vision and build a more substantial project. When the plaintiff first visited Liao Ning Province he said words to the effect
Plaintiff: "This is a very nice property. But we need to build bigger house than what you are thinking off." [sic]
I said: "We do not have the money to build bigger. To build a bigger property is more than we planned."
Plaintiff "Its OK. Don't worry about the money. We must do the job properly. I will give you extra money."
Then he began taking over the project.
Plaintiff: "First we need a car because it is too far from the town."
He took us to the town and bought a four wheel drive using his own money.
He told us how to build the foundations and other things. He said:
"You have to build more toilets in the home church so that we can have more people staying."
Plaintiff: "We have to build a car port for the car."
I said: "If we build a car part [sic] it will cost us even more money."
Plaintiff: "In the winter the car will need a carport. I will give you the money for it."
I said: "Where will we get so much money?"
Plaintiff: "I will make up the shortfall because I want to see this project succeed."
4 May 2007 - $4,000:
The plaintiff said that this payment was made when the defendant said:
"Can you lend me another $4,000 for the installation of telegraph and cable at the Liao Ning property."
The defendant said that there was no such telephone call as she was in Korea.
19 July 2007 - $21,000:
The plaintiff says that the defendant asked her for this as a loan to pay the cost of linking new electric lines to the property. The defendant denies this, although she does not deny the payment.
27 August 2007- $20,000:
The plaintiff says that the defendant telephoned him and said that due to an increase of prices for labour and building materials she had a further shortfall for the property and asked for an additional $20,000 "to pay for the additional building costs of the Liao Ning property that includes a new draining system, pipes, taps and new bathroom." The defendant denies that she asked the plaintiff to lend the money. She says that he gave the money as a donation and it was used to build a wall to divert the spring which was the idea of the plaintiff. It appears that at that stage the foundations were just being laid but it was clearly to install a bathroom.
March 2008 - $10,000:
According to the plaintiff, this amount was paid to the defendant as a result of a request from her to lend her $10,000 to pay for repair costs of faulty work at the Liao Ning property. This does not seem to be denied by the defendant.
There are claimed to be other amounts lent as follows:
April 2006 - $3,000
2 December 2007 - $1,500
25 March 2008 - $7,000
16 June 2008 - $3,000
1 July 2008 - $5,000
1 September 2008 - $4,000
These were relatively small amounts each said to be paid as a result of the defendant asking for loans of money needed urgently and were paid to an account of a relative in China Li Fen Shan. The first payment of $3,000 was used, the defendant, said to purchase furniture and other household effects for the benefit of guests who would go to Bible Studies at Stannifer. As far as the other payments were concerned, she said that they were for monies paid by the plaintiff for the construction of what would was described as the home church and that they were gifts by him for that purpose.
Finally, the plaintiff says that in early 2009 he said to the defendant that he had lent her a lot of money and asked for its repayment, to which the defendant replied:
"I never borrowed any money from you. I will not repay you anything."
The defendant does not deny that she received a demand for repayment but she says it was not in early 2009.
Findings on Payments
The stories are diametrically opposed. The plaintiff's story is that every payment was by way of a loan which was acknowledged as a loan by the defendant or was requested by way of loan. The defendant's story is that the payments were made voluntarily by the plaintiff as gifts towards the establishment of a home church in rural China. By home church it seems to be accepted that what this was was a home in which the relatives of the defendant would live, but where other people who lived round about could come to pray. It was not a church building as such. Nevertheless evidence of a Mr Kim and Lee Chee which I accept was that such a place existed, that people from the area came to pray, and that they (Kim and Lee Chee) had made donations for its work.
I did not find everything the plaintiff said to be reliable. He was always keen to make sure in his evidence that he said the monies were by way of loan. His evidence as to the financial position of the family of the defendant was confused and unconvincing. On the other hand, although the defendant's evidence was difficult to comprehend due to language difficulties from time to time she was not an impressive witness. One answer she gave to a question asked of her was quite untrue. She was asked by counsel for the plaintiff where she was living during the hearing of the case. She said that she was living in her car. She said she lived in her car when she came to Sydney. So far as the case was concerned, this was untrue. Lee Chee said that she, Lee Chee, was staying at the Backpackers in George Street and that the defendant and her daughter were staying with her. It was obviously true and the evidence of the defendant obviously untrue. Counsel for the defendant did not argue otherwise.
Before considering this further, I should make it clear that the defendant in pleading placed no reliance on clause 3 of the statutory declaration. I accept that it could be thought that what was claimed to have been agreed at the meeting at the house of Lee Chee could have referred to all money lent and to an interest in Stannifer as well but that is not clear. While there was discussion at the Church meeting of payments made I consider clause 3 is restricted to money advanced for Stannifer.
After careful consideration I have come to the conclusion that the payments were not made by way of loan. The plaintiff was, I find, interested in the activities of the Adventist Church in China; he had the means to assist with those activities; he knew the defendant herself would have no way of repaying in excess of $220,000, yet he continued to make the payments. It may be the fact that the defendant was very persistent and persuasive and that this caused the plaintiff who was quite an old man to part with his money. The most likely finding is that he approved of the home church programme and wanted to assist with it, and may have been led along and encouraged by the defendant and her family to make the payments. The decision is somewhat finely balanced but at the least the plaintiff has not satisfied the onus on him.
Claim under Property (Relationships) Act 1984 (the Act)
In the consideration of this part of the claim I will continue to call the cross claimant the defendant and the cross defendant the plaintiff.
The plaintiff moved to the Kings Park home in May 2005. He was in Hong Kong for about three months prior to March 2007 and on his return home he moved to Stannifer where he lived for about 15 months. There were some breaks in the relationship caused by each party going to Hong Kong or China on separate visits but if there were a domestic relationship I find it lasted for over two years.
This was not a de facto relationship. The claim is made under s 5(1)(b) of the Act as being a close personal relationship between the parties living together, one of each of whom provides the other with domestic support and personal care. It was a relationship of kindness, of two people living in the same house, sharing meals and generally with the defendant providing domestic support to the plaintiff. It is, however, necessary to find that the defendant provided the plaintiff with personal care as well as domestic support. Certainly she assisted with the care of his wife while she was in the nursing home, but I do not think that sufficient in itself to fulfil the requirement of personal care, although it may have given some emotional support up to the date of her death. However, I do consider the fact that the defendant offered the plaintiff accommodation in her home to enable him more easily to visit his wife does amount to personal care. This did not continue at Stannifer where the relationship became more strained. In my opinion the defendant has not established the requirement of provision of personal care while in Stannifer. It follows from this that the required two year period is not met. To make it clear I accept following Hayes v Marquis [2008] NSWCA 10, that emotional support may amount to personal care but if it does then in the present case it was not continuing.
It is, however, sensible to continue on the basis the requirement has been met and to deal with the argument of the plaintiff that in any event, s 5(2)(a) of the Act precludes a finding of close personal relationship. The plaintiff claims he made a payment of $7,000 in cash to the defendant prior to moving to Kings Park and that this was for rent. That seems to be a substitute for his earlier evidence that he was to pay $250 a week which was an extraordinarily generous amount for one room. He said, in giving oral evidence, that he had documentary evidence at home to establish that he had made the payment of $7,000 and that he would provide this the next day. He did not do so and I find he has not proved he made the payment. So far as Stannifer is concerned, he said that as the sale price of Kings Park was not sufficient to repay the whole of the Stannifer purchase price, his accommodation at Stannifer was in effect in exchange for receiving no interest on the balance purchase money and leaving those moneys unpaid. In other words, that this was the equivalent of a payment of rent. I accept the evidence this was the agreement. In my view, that was a reward within s 5(2)(a) of the Act. It follows from this that the requirements for an order are not met even if the two year requirement of care was met.
Even if I were wrong in this, I would not have made an order. The last minute evidence of the defendant was that she came into the relationship with the Kings Park house and little else. The plaintiff gave no clear evidence of his financial position when he moved to Kings Park, but we know that he provided the purchase price for Stannifer and was able for a period to make substantial payments for the benefit of her family and the home church community. In other words, it is clear that he had substantially more assets than the cross claimant. He contributed far more financially to the relationship than she did. The defendant did provide the Kings Park property at the commencement and the plaintiff provided the money for Stannifer and made payments for some living expenses. It is likely that Stannifer has gone down in value. Both parties will suffer from this. The defendant did contribute to the welfare of the plaintiff by providing him with domestic support and help in the care of his wife and this should not be underestimated but the support for the defendant's family and the financial support for her was substantial. It was the plaintiff who enabled the Stannifer home to be purchased. I do not consider a case has been made for adjustment under s 20 of the Act. In those circumstances it is not necessary to consider whether time should be extended.
The Result
The result of this is that orders should be made bringing about the sale of Stannifer and division of the proceeds. The balance of the plaintiff's claim should be dismissed and the cross claim should be dismissed.
Costs
The money claim and the property claim were really separate and distinct. The plaintiff has largely succeeded in one, but not on the terms sought. He has lost on the other. I consider that somewhat more time was spent on the property claim than the money claim. The plaintiff has succeeded on the cross claim. On balance, I think it would appropriate if an order were made that the defendant/cross claimant pay 30% of the costs of the plaintiff/cross defendant of the whole of the proceedings, but I am prepared to hear submissions on this.
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Amendments
14 June 2012 - Insert "defendant" in lieu of "plaintiff" in second sentence.
Amended paragraphs: 56
Decision last updated: 14 June 2012
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