Szeto v Situ

The appeal in *Szeto v Situ* concerned a dispute between siblings over beneficial ownership of a residential property. The property was purchased in the name of the respondent, Mr. Situ, with loan moneys obtained through the applications of both the appellant, Ms. Szeto, and the respondent. Ms. Szeto alleged an oral agreement that the property would be held beneficially in equal shares. She asserted her entitlement on the basis of an unconscionable denial of interest, referencing principles from *Muschinski v Dodds*, and alternatively, on the basis of a resulting trust, as discussed in *Calverley v Green*. The primary judge had declared that Ms. Szeto had no right, title, or interest in the property.

The Court of Appeal was required to determine whether the primary judge erred in several respects. These included whether the primary judge wrongly preferred the evidence of the respondent and his wife over that of the appellant, and whether the primary judge erred in attaching significance to perceived differences in interest without adequately considering documentary evidence suggesting the appellant contributed to the purchase price. Furthermore, the court had to consider whether the primary judge should have accepted a letter prepared by the respondent's solicitor as an admission of the appellant's interest.

The Court of Appeal found that the primary judge had erred in his assessment of the evidence and in applying the relevant legal principles. The court concluded that a retrial was necessary to properly determine the appellant's claim. The appeal was allowed, the orders of the primary judge were set aside, and the proceedings were remitted for a new trial before a judge nominated by the Chief Judge of the Equity Division. The respondent was ordered to pay the appellant's costs of the appeal, with a potential certificate under the Suitors’ Fund Act 1951 (NSW), and the costs of the proceedings in the court below were to abide the outcome of the new trial.