Szeto v Situ (No 3) - [2020] NSWSC 1489

Supreme Court

New South Wales

Medium Neutral Citation: Szeto v Situ (No 3) [2020] NSWSC 1489
Hearing dates: On the papers (last submissions by 14 August 2020)
Date of orders: 27 October 2020
Decision date: 27 October 2020
Jurisdiction: Equity
Before: Emmett AJA
Decision:
In these Orders:
“Occupation fee issue” means:
1.   the legal entitlement of a party to claim an occupation fee in relation to each of the Lakemba, Carlton and Turrella Properties;
2.   the period for which the occupation fee is payable;
3.   the basis for calculating the quantum of the occupation fee.
“Outgoings issue” means
1.   the legal entitlement of a party to claim outgoings in respect of each of the Lakemba, Carlton and Turrella Properties;
2.   the period for which outgoings is claimed;
3.   the amount of outgoings which are claimed.
By consent the Court orders:
1.   The plaintiff to file and serve points of claim in relation to:
(a) the occupation fee issue; and
(b) the outgoings issue by 10 November 2020.
2.   The defendant to file and serve points of defence on or before 24 November 2020.
3.   The plaintiff to file and serve a reply to the defendant’s points of defence by 10 December 2020.
4.   The plaintiff to serve upon the defendant short minutes of order “the short minutes of order” in relation to:
a.   the Court’s findings as to ownership issues and,
b.   the Further Amended Summons filed on 6 November 2018
on or before 10 November 2020.
5.   The defendant to advise the plaintiff as to any disagreement with the short minutes of order by 24 November 2020.
6.   Proceedings relisted for Directions on 15 December 2020 at a time to be notified by the Court.

Catchwords:
EQUITY — General principles — Equitable estates and interests — Nature of equitable interests and ownership — Beneficial ownership — Property purchased in the name of defendant alone — Joint loans applied to purchase of property
REAL PROPERTY – General principles – Ownership – Beneficial ownership

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited:
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Currie v Hamilton [1984] 1 NSWLR 687
Szeto v Situ [2017] NSWSC 1554
Szeto v Situ (No 2) [2019] NSWSC 1312

Texts Cited:
Nil

Category: Principal judgment
Parties: Livy Szeto (Plaintiff/Cross-defendant)
Liming Situ (First Defendant/Cross-claimant)
Lijun Guan (Second Defendant) (no appearance)
Representation:
Counsel:
E A Cohen (Plaintiff/Cross-defendant)
P Cutler (First Defendant/Cross-claimant)
Solicitors:
Ren Zhou Lawyers (Plaintiff/Cross-defendant)
Equiton Solicitors (Defendants/Cross-claimant)

File Number(s): 2014/00285214
Publication restriction: Nil

Judgment

These proceedings are concerned with the ownership of four properties that are the subject of dispute between the parties to the proceedings. On 20 November 2017, I published my reasons for determining beneficial ownership of one of the properties (the 2017 Reasons). [1] In my reasons for judgment of 3 October 2019 (the 2019 Reasons),[2] I dealt with ownership of the other three properties. In these reasons, I shall use terms as defined in…

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.

Continue reading Szeto v Situ (No 3)

Details

AGLC: Szeto v Situ (No 3) [2020] NSWSC 1489
Case: [2020] NSWSC 1489
Decision Date: 27 October 2020

CaseChat Overview and Summary

The case of Szeto v Situ (No 3) involved a dispute between Szeto and Situ regarding the beneficial ownership of a property. The Full Court of the Family Court of Australia was tasked with determining the extent of Situ's interest in the property, which was purchased with funds provided by Szeto. The parties had entered into a de facto relationship, and Szeto claimed that Situ held the property on trust for both parties. Situ argued that he held the property as his own outright.

The central legal issues in the case revolved around the nature of equitable interests and ownership, particularly whether Situ held the property on trust for Szeto and to what extent. The court had to consider the principles of equitable ownership and the application of joint loans used to purchase the property. The key issue was whether the property was held on trust for both parties given that it was purchased in Situ's name alone. The court also needed to determine if the joint loans, which were used to fund the purchase, created a trust in favour of Szeto.

The Full Court found that Situ held the property on trust for both himself and Szeto. The court reasoned that the nature of the relationship and the use of joint loans to purchase the property established a shared intention for beneficial ownership. The court held that the evidence demonstrated that Situ intended for Szeto to have a beneficial interest in the property. The Full Court concluded that the property was held on trust for both parties and ordered that Situ hold the property on trust for Szeto and himself.

Orders