Un v Lee - [2023] NSWSC 586

Supreme Court

New South Wales

Medium Neutral Citation: Un v Lee [2023] NSWSC 586
Hearing dates: 16-18 May 2023
Date of orders: 1 June 2023
Decision date: 01 June 2023
Jurisdiction: Equity
Before: Darke J
Decision:
Order made that money held in Court be paid out to the defendants.

Catchwords:
CONTRACTS – unconscionable conduct – special disability or disadvantage – unjust contracts – Contracts Review Act 1980 (NSW) (“the Act”) – where real property was transferred to defendants by the plaintiff without monetary consideration – where plaintiff seeks to have the transfer to the defendants declared void or set aside on various grounds – whether transfer is an unconscionable dealing – whether transfer should be held to be an unjust contract within the meaning of the Act – whether defendants committed a breach of trust by failing to establish a family trust – whether transfer should be declared void on the ground of non est factum – whether the transfer was procured by fraud – held that the plaintiff was not under any special disability which was taken advantage of at the time of the transfer – held further that the transfer was not unjust in the circumstances relating to it at the time it was effected – held further that the plaintiff did not raise the topic of establishing a family trust with the defendants and no agreement to establish a family trust was reached between the parties – held that the plaintiff was well aware of the nature of the transfer to the defendants – allegations that transfer was procured by fraud rejected – held that defendants as registered proprietors of the property were entitled to sell the property and are entitled to the proceeds of sale

Legislation Cited:
Contracts Review Act 1980 (NSW), ss 7(1), 9(1), 9(2)

Cases Cited:
Blomley v Ryan (1956) 99 CLR 362
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447

Category: Principal judgment
Parties: Chi Keong Un (Plaintiff/Cross-Defendant)
Kitty Jie Lee (First Defendant/First Cross-Claimant)
Sumino Kan (Second Defendant/Second Cross-Claimant)
Representation:
Counsel:
Ms M Tibbey (Plaintiff/Cross-Defendant)
Mr D Neggo (Defendants/Cross-Claimants)
Solicitors:
Armstrong Legal (Plaintiff/Cross-Defendant)
Macpherson Kelley Pty Ltd (Defendants/Cross-Claimants)

File Number(s): 2021/318964
Publication restriction: None

Judgment

Introduction

These proceedings concern a family dispute over the ownership of a property at 621 Canterbury Road, Belmore (“the property”). The property was sold to a third party in late 2021, and the proceeds of the sale, being $712,977.10, have been paid into Court. The dispute has thus become a dispute over who is entitled to the money in Court.
At the time of the sale, the property was owned by the defendants, Ms Kitty Lee and Ms Sumino Kan, as joint tenants. They became the registered proprietors of the property on 5 May 2014, pursuant to a transfer without monetary consideration from the plaintiff, Mr Chi Un. Ms Lee and Ms Kan are his daughters.
The plaintiff’s wife, and the mother of the defendants, was known as Mrs Chan. She died in 2015. The…

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 Un v Lee

Details

AGLC: Un v Lee [2023] NSWSC 586
Case: [2023] NSWSC 586
Decision Date: 01 June 2023

CaseChat Overview and Summary

The case of Un v Lee involved a dispute over a real property transfer from the plaintiff to the defendants without monetary consideration. The plaintiff sought to have the transfer declared void or set aside on various grounds, including that it was an unconscionable dealing, an unjust contract under the Contracts Review Act 1980 (NSW), and procured by fraud. The defendants, as the registered proprietors of the property, argued that the transfer was valid and that they were entitled to sell the property and keep the proceeds. The central legal issues were whether the transfer was an unconscionable dealing, whether it constituted an unjust contract under the Act, whether there was a breach of trust by failing to establish a family trust, and whether the transfer was procured by fraud.

The court examined whether the plaintiff was under any special disability which was taken advantage of at the time of the transfer. It found that the plaintiff was not under any such special disability. The court also considered whether the transfer was unjust in the circumstances at the time it was effected and found that it was not. Additionally, the court dismissed the claim that the defendants breached a trust by not establishing a family trust, as the plaintiff had not raised the topic with the defendants nor was any agreement reached. The court rejected the allegations of fraud in procuring the transfer, holding that the plaintiff was well aware of the nature of the transfer to the defendants.

In conclusion, the court held that the defendants were entitled to sell the property as the registered proprietors and were entitled to the proceeds of sale. The claims brought by the plaintiff were dismissed in their entirety. The court found no evidence of special disability, unconscionability, or fraud in the circumstances of the property transfer. The plaintiff’s claims for relief were rejected, and the defendants’ title to the property was upheld.

Orders