Tam v Tang - [2013] NSWSC 708

Supreme Court

New South Wales

Medium Neutral Citation: Tam v Tang [2013] NSWSC 708
Hearing dates: 09/05/2013 and 10/05/2013
Decision date: 05 June 2013
Jurisdiction: Equity Division
Before: Young AJ
Decision:
Plaintiffs' suit be dismissed with costs

Catchwords:
EVIDENCE - corroboration - claim on deceased person's estate - where uncorroborated evidence of oral communications between the deceased and claimant - no rule of law against allowing uncorroborated oral communications with the deceased, but the court will treat such evidence with caution
EQUITY - equitable defences - laches
Legislation Cited: Limitation Act 1969 (NSW)
Conveyancing Act 1919 (NSW)
Cases Cited: Ashton v Pratt (No 2) [2012] NSWSC 3
Re Hodgson (1878) 9 Ch D 673
Texts Cited: J D Heydon, Cross on Evidence (2010, 8th edition, LexisNexis Butterworths)
Category: Principal judgment
Parties: Hang Hing Tam (Plaintiff)
Ya Dong Tang (Defendant)
Representation: Counsel:
JF Merkel (Plaintiff)
IGA Archibald (Defendant)
Solicitors:
Legal Point Lawyers & Attorneys (Plaintiff) Ren Zhou Lawyers (Defendant)

File Number(s): 2011/359159

Judgment

HIS HONOUR: This is a dispute between a woman and her late brother's widow over the equitable title to real property in Rockdale. That property is Torrens land of which the defendant is the registered proprietor. She became the registered proprietor through an administrator's transmission application from her late husband.

Without meaning any disrespect, it will be simpler to refer to the plaintiff as the 'seventh sister' (as she was so designated in the family) and the deceased as the 'ninth brother'. The eighth sister will also be mentioned in these reasons. The defendant is the widow of the ninth brother who died on the 27 June 2006. Letters of administration were granted to her on 18 January 2007.

The ninth brother was the successful bidder at the auction for the Rockdale property. The purchase price was AUD$248,500.00. The ninth brother borrowed AUD$150,000.00 on mortgage and the balance was paid by three bank cheques plus the deposit. The purchase was settled on 20 May 1997.

The seventh sister says that she paid her brother four amounts before the property was purchased namely; AUD$8,300.00 in September 1994: $10,000.00 in June 1996; $33,300.00 in August 1996; and $13,800.00 in December 1996. Basically, she says that she paid these monies pursuant to an arrangement between herself and her brother that the brother would purchase a property in Australia, which would be a secure asset for both parties' retirement. Following the purchase of the property, the plaintiff paid her brother a further; AUD$50,0000 on 26 May 1997; $21,000 on 28 August 1997; and $10,000 on 23 September 1997. Whilst the $50,000 was used to reduce the mortgage, there was no evidence as to how the later sums were deployed.

The plaintiff's statement of claim pleads in essence:

The property was purchased for AUD$248,500.00;
The plaintiff contributed $65,400.00 to the purchase;
The plaintiff subsequently paid $81,000.00 in reduction of the mortgage;
The plaintiff and her deceased brother had a mutual intention that they would acquire a property as an investment to provide for…

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 Tam v Tang

Details

AGLC: Tam v Tang [2013] NSWSC 708
Case: [2013] NSWSC 708
Decision Date: 05 June 2013

CaseChat Overview and Summary

The matter involved a dispute between Tam and Tang concerning the estate of a deceased individual. Tam claimed a portion of the estate based on oral communications with the deceased, which Tang contested. The case was heard in the Supreme Court of Victoria. The primary legal issues revolved around the admissibility and weight of uncorroborated oral communications from the deceased and the applicability of equitable defences, specifically laches, to the claim.

The court examined whether uncorroborated oral communications could support a claim on a deceased person's estate. It acknowledged that there was no legal prohibition against such evidence but emphasised the need for caution in its application. The court highlighted that while oral communications could be considered, they would be treated with scepticism unless supported by other evidence. The court also assessed the equitable defence of laches, considering whether any delay by Tam in asserting the claim had prejudiced Tang.

After considering the evidence, the court found that the oral communications presented by Tam were insufficient to substantiate the claim without corroboration. The court underscored the necessity for additional evidence to support claims based on oral communications. Regarding the defence of laches, the court determined that any delay by Tam did not amount to a significant prejudice to Tang. Consequently, the court dismissed Tam's claim on the estate.

The court ordered that the estate would be distributed according to the existing will, and no part of it would be allocated to Tam. Additionally, the court directed Tang to cover the legal costs associated with the proceedings.

Orders