Szeto v Situ (No 5) - [2022] NSWSC 321

Supreme Court

New South Wales

Medium Neutral Citation: Szeto v Situ (No 5) [2022] NSWSC 321
Hearing dates: On the papers – submissions 7 February 2022
Date of orders: 23 March 2022
Decision date: 23 March 2022
Jurisdiction: Equity
Before: Emmett AJA
Decision:
The Brother (the first defendant) is directed to bring in a further minute of proposed orders reflecting the determinations set out above.

Cases Cited:
Szeto v Situ (No 4) [2021] NSWSC 1691

Category: Consequential orders
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

On 23 December 2021, I gave directions for the finalisation of these proceedings in accordance with reasons previously published. [1] Pursuant to those directions, the Brother produced a further version of the Five Tables intended to reflect the various determinations that I have made in these proceedings. The figures set out in that version of the Five Tables were calculated as at 31 December 2019. In a memorandum dated 28 January 2022, the Brother also proposed orders for the finalisation of the proceedings. The orders proposed by the Brother are set out in Appendix 1 to these reasons.
1. See Szeto v Situ (No 4) [2021] NSWSC 1691.
By memorandum of 6 February 2022, the Sister indicated disagreement with the further version of the Five Tables and provided an alternative version of the Five Tables. In addition, the Sister proposed changes to the orders proposed by the Brother. In his response of 7 February 2022, the Brother indicated disagreement with most of the changes to the draft orders proposed by the Sister. The exchange of memoranda raises several issues, which I shall resolve on the basis of my understanding of the issues from the relevant memoranda.
By the first order proposed by the Brother, the Court is to note that the amount payable by the Sister to the Brother as at 31 December 2019 is $175,410. The sum of $175,410 is derived from Table 5 of the Brother’s version of the Five Tables. The alternative Table 5 prepared by the Sister shows a sum of $809,981 owing by the Brother to the Sister as at 31 December 2019. As I understand the position, the figures in Table 5 prepared by the Brother reflect the rulings and determinations that I have made and the agreements that have been reached by the parties. The Sister’s proposed alterations to the Five Tables appear to me to be an attempt to reargue rulings that have been made or to resile from concessions made in the course of numerous hearings.
By the second order proposed by the Brother, the Court is to note that that the amount payable by the Brother to the Sister pursuant to orders made on 16 April 2018 is $578,271. The Sister disagrees with that proposed notation and claims, in addition to the sum of $578,274, interest in the amount of…

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 5)

Details

AGLC: Szeto v Situ (No 5) [2022] NSWSC 321
Case: [2022] NSWSC 321
Decision Date: 23 March 2022

CaseChat Overview and Summary

The case of Szeto v Situ (No 5) [2022] NSWSC 321 involves parties Livy Szeto and Liming Situ, who are litigating over the final accounting and distribution of assets following their previous disputes. The proceedings have been ongoing since 2014, and the latest hearing focused on the finalisation of the case, including the calculation of amounts owed and the distribution of assets.

The legal issues before the court included the calculation of the final amounts owing between the parties as at 31 December 2019, the calculation of interest on those amounts, and the distribution of assets such as the Arncliffe Property and the offset account with the National Australia Bank (NAB). The parties disagreed on the figures presented in the proposed final accounts and the orders for finalising the proceedings. The court had to determine whether the figures in the proposed final accounts accurately reflected the previous rulings and agreements made between the parties.

In resolving these issues, the court examined the various versions of the final accounts provided by the parties and the proposed orders. The court found that the figures in the Brother’s version of the final accounts reflected the previous rulings and agreements made between the parties. The court noted that the Sister’s proposed alterations to the final accounts were attempts to reargue previous rulings or to resile from concessions made during the proceedings. The court also found that interest on the proceeds of the sale of the Carlton Property should run until 31 December 2019, as the Brother had the use of the proceeds during that time.

The court further determined that no orders should be made regarding the set-off of the values of the Brother’s interests in the Lakemba Property and the Turrella Property against amounts owing, unless the parties reached an agreement. If no agreement was reached, the court found that applications could be made for orders appointing trustees for the sale of the Lakemba Property and the Turrella Property. The court also found that the balance of the funds in the offset account with the NAB should be paid to the Brother, in line with how other issues had been dealt with in the proceedings.

The court directed the Brother to prepare a further minute of proposed orders reflecting the determinations made in these reasons. The court also noted that each party would bear their own costs for the proceedings.

Orders