Szeto v Situ

[2017] NSWCA 136

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Szeto v Situ [2017] NSWCA 136

Hearing dates:

16 May 2017

Date of orders:

15 June 2017

Decision date:

15 June 2017

Before:

Bathurst CJ at [1]; Macfarlan JA at [35]; Leeming JA at [36]

Decision:

1. Appeal allowed.

 

2. Set aside the orders made by the primary judge.

 

3. Order a retrial of the proceedings before a judge nominated by the Chief Judge of the Equity Division.

 

4. Order the respondent pay the appellant’s costs of the appeal and have a certificate under the Suitors’ Fund Act 1951 (NSW) if eligible.

 5. Costs of the proceedings in the Court below abide the outcome of any new trial.

Catchwords:

EQUITY – residential property purchased in name of respondent using loan moneys acquired on the application of appellant and respondent siblings – appellant alleged oral agreement that property would be held beneficially in equal shares – entitlement asserted on the basis of an unconscionable denial of interest under Muschinski v Dodds (1986) 160 CLR 583 and/or on the basis of a resulting trust under Calverley v Green (1984) 155 CLR 242 – absence of direct, corroborative evidence – whether primary judge erred in declaring that the appellant had no right, title or interest in the property – whether primary judge erred in preferring the evidence of the respondent and his wife over that of the appellant – whether primary judge erred in giving significance to differences in the interest failing to have regard to documentary evidence that appellant contributed to purchase price – whether primary judge should have accepted that a letter prepared by respondent’s solicitor constituted an “admission” of appellant’s interest

Legislation Cited:

Suitors’ Fund Act 1951 (NSW)

Cases Cited:

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3

Category:

Principal judgment

Parties:

Livy Szeto (Appellant)
Liming Situ (Respondent)

Representation:

Counsel:
I Tam / T Yeh (Appellant)
R Cavanagh SC / P Cutler (Respondent)

  Solicitors:
Pope & Spinks (Appellant)
Equiton Solicitors (Respondent)

File Number(s):

2016/183676

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2016] NSWSC 646

Date of Decision:

24 May 2016

Before:

Lindsay J

File Number(s):

2014/00285214

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant claimed an equitable half-share in a residential property registered solely in the respondent’s name (her brother). The property was purchased with the benefit of a bank loan which was made on the application of both the appellant and respondent. The appellant claimed there was an agreement between them that the property would be owned by both siblings in equal shares and that she paid both the deposit and the shortfall of funds between the balance of the purchase price and that provided under the bank loan. The respondent denied there…