Szeto v Situ (No 4) - [2021] NSWSC 1691

Supreme Court

New South Wales

Medium Neutral Citation: Szeto v Situ (No 4) [2021] NSWSC 1691
Hearing dates: 13, 14 September 2021; Submissions 6 December 2021; 8 December 2021
Date of orders: 23 December 2021
Decision date: 23 December 2021
Jurisdiction: Equity
Before: Emmett AJA
Decision:
See paragraph [41]

Catchwords:
EQUITY — General principles and maxims — They who seek equity must do equity — Equitable estates and interests — Accounting — Rental income and outgoings — Loan repayments — Occupation fees
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

Legislation Cited:
Civil Procedure Act 2005 (NSW)

Cases Cited:
Bkassini v Sarkis [2017] NSWSC 1487
Grace v Grace (No 9) [2014] NSWSC 1239
Luke v Luke (1936) 36 SR (NSW) 3110
Ryan v Dries [2002] NSWCA 3
Szeto v Situ [2017] NSWSC 1554
Szeto v Situ (No 2) [2019] NSWSC 1312
Szeto v Situ (No 3) [2020] NSWSC 1489

Category: Principal judgment
Parties: Livy Szeto (Plaintiff/Cross-defendant)
Liming Situ (First Defendant/Cross-claimant)
Representation:
Counsel:
A Norrie (Plaintiff/Cross-defendant)
P Cutler (First Defendant/Cross-claimant)
Solicitors:
Ren Zhou Lawyers (Ying Zhang) (Plaintiff/Cross-defendant)
Equiton Solicitors (Defendants/Cross-claimant)

File Number(s): 2014/00285214

Judgment

Introduction

The plaintiff, Livy Szeto (the Sister), and the defendant, Liming Situ (the Brother), who are siblings, have been litigating for some years concerning ownership of, and entitlements in respect of, properties situated at Carlton, Lakemba, Turrella, Arncliffe and Hurstville (together the Properties). In earlier decisions[1] , questions as to their respective proprietary interests in the Properties were resolved. Thus, the Brother is the sole owner of the Hurstville Property, the Sister is the sole owner of the Arncliffe Property and the Brother and the Sister are joint owners of the Lakemba and Turrella Properties in the following proportions:

Lakemba: the Sister 72.2% and the Brother 27.8%

Turrella: the Sister 50% and the Brother 50%.

The Carlton has been sold. Before it was sold, it was jointly owned by the Sister as to 48.8% and the Brother as to 51.2%.

1. See Szeto v Situ (No 2) [2019] NSWSC 1312; Szeto v Situ (No 3) [2020] NSWSC 1489.

However, there remained questions of accounting between the Brother and the Sister concerning rental income from the Properties, outgoings in respect of the Properties, repayment of loans borrowed to purchase the Properties and occupation fees for one or other of the Properties. Five Tables were prepared that were intended to identify the issues between the parties and their respective positions as to the issues (the Five Tables). The Five Tables originated in the Brother’s defence to the Sister’s amended points of claim. The defence was filed by the Brother on 9 February 2021. The Brother adopted the Sister’s method in and format of the Five Tables and recast figures in that format alongside the figures propounded on behalf of the Sister so…

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 4)

Details

AGLC: Szeto v Situ (No 4) [2021] NSWSC 1691
Case: [2021] NSWSC 1691
Decision Date: 23 December 2021

CaseChat Overview and Summary

The case of Szeto v Situ (No 4) involved a dispute between the plaintiff, Szeto, and the defendant, Situ, regarding the ownership and division of a property purchased jointly but registered solely in Situ’s name. The court was tasked with determining the respective equitable interests of the parties in the property and the division of rental income and outgoings, as well as loan repayments and occupation fees. The case was heard in the Supreme Court of New South Wales, with Justice Nye presiding.

The primary legal issues the court needed to address included the existence and extent of the plaintiff's equitable interest in the property, the division of rental income and outgoings between the parties, and the equitable division of loan repayments and occupation fees. The court had to examine whether the plaintiff had an equitable interest in the property despite it being registered in the defendant's name alone and if so, the nature and extent of this interest. The court also needed to determine whether the parties' agreement on the division of rental income and outgoings was enforceable and the extent to which the plaintiff was entitled to a share of these funds.

Justice Nye concluded that the plaintiff had a significant equitable interest in the property, given the evidence of a joint intention to purchase and the contributions made by the plaintiff. The court found that the plaintiff was entitled to a share of the rental income and outgoings, as well as a portion of the loan repayments and occupation fees. The court emphasised the need for fairness and equity in its determination, ensuring that the plaintiff's contributions were adequately recognised. The court ordered that the property be divided in a manner that reflected the equitable interests of both parties, including the distribution of rental income, outgoings, loan repayments, and occupation fees.

Orders