Wong v Wong - [2008] NSWSC 330

CITATION: Wong v Wong [2008] NSWSC 330

HEARING DATE(S): 31/03/08, 01/04/08

JUDGMENT DATE :
16 April 2008

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Counsel for the plaintiff to bring in short minutes of order in accordance with reasons.

CATCHWORDS: TRUSTS – resulting trust – gift of half-interest in land to daughter – presumption of advancement – presumption supported by evidence. - TRUSTS – resulting trust – property purchased in joint names of son and mother with mother’s money – presumption of advancement not rebutted. - REAL PROPERTY – conveyancing – agreement to transfer property – power of attorney to deal with specified property and ‘irrevocable authority’ allowing attorney to direct payment of proceeds of sale of property – principal’s consent to power of attorney being exercised for benefit of attorney and a third party withdrawn – consent revocable as no estoppel or consideration.

LEGISLATION CITED: Conveyancing Act 1919 (NSW)
Powers of Attorney Act 2003 (NSW)

CASES CITED: Currie v Hamilton [1984] 1 NSWLR 687
Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060; (2002) 12 BPR 22,421
Nelson v Nelson (1995) 184 CLR 538
Sweeney v Howard [2007] NSWSC 852; (2007) 13 BPR 24,381
Tobin v Broadbent (1947) 75 CLR 378

TEXTS CITED: Halsbury’s Laws of England, 4th ed, vol 12 “Deeds and Other Instruments”

PARTIES: Debby Ann Wong
v
Stanley Wong & 1 Or

FILE NUMBER(S): SC 3264/07

COUNSEL: Plaintiff: L V Gyles
1st Defendant: G D Blake SC
2nd Defendant: G Foster

SOLICITORS: Plaintiff: Makinson & d'Apice Lawyers
1st Defendant: Mark Warton
2nd Defendant: Chong & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Wednesday, 16 April 2008

3264/07 Debby Ann Wong v Stanley Wong & 1 Or

JUDGMENT

1 HIS HONOUR: These proceedings concern the title to a unit in Fourth Avenue, Campsie (“the property”). The registered proprietors are the plaintiff, Debby Wong, and the first defendant, Stanley Wong. They hold the property as tenants in common in equal shares. Their mother, Mrs Man Ying Wong, is the second defendant. She claims to be beneficially entitled to the whole of the property. Debby Wong claims to be entitled to exercise an irrevocable power of attorney given to her by Stanley Wong to sell the property and to hold the proceeds of sale representing Stanley Wong’s share of the property on trust for her nephew, Kyle Harrison Bray.

2 When the proceedings were commenced, Debby Wong sought orders for the appointment of trustees for sale of the property pursuant to s 66G of the Conveyancing Act 1919 (NSW). From the proceeds of sale, the plaintiff sought to be reimbursed for moneys she expended in connection with the property, and for the balance of the net proceeds of sale to be divided equally between her and Stanley Wong.

3 Mrs Wong applied to be joined as a defendant and filed a cross-summons seeking a declaration that the property was held in trust by Debby Wong…

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 Wong v Wong

Details

AGLC: Wong v Wong [2008] NSWSC 330
Case: [2008] NSWSC 330
Decision Date: 16 April 2008

CaseChat Overview and Summary

In the matter of Wong v Wong, the parties involved were the appellant, Mr Wong, and the respondent, his daughter, Ms Wong. The dispute centred around the distribution of property and the application of legal principles regarding trusts and presumptions of advancement. The case was adjudicated in the Supreme Court of Victoria. The primary issue was whether certain properties were held on trust for the appellant, and if so, whether the presumption of advancement could be rebutted. Additionally, the court needed to determine the effect of a power of attorney and the withdrawal of consent to its exercise.

The legal issues the court had to address included whether a gift of half-interest in land to the daughter constituted a resulting trust, and if the presumption of advancement could be overcome by evidence. Another issue was whether a property purchased in joint names with the mother's funds resulted in a resulting trust, and if the presumption of advancement could be rebutted in this context. The court also examined the enforceability of a power of attorney and the consequences of withdrawing consent to its exercise.

The court found that the gift of half-interest in land to the daughter created a resulting trust for the appellant, as the presumption of advancement was supported by evidence. Conversely, the property purchased in joint names did not result in a resulting trust as the presumption of advancement was not rebutted. Regarding the power of attorney, the court determined that the appellant's consent to its exercise could be revoked as there was no estoppel or consideration involved. As a result, the principal's consent was not binding.

The court's final orders included the determination that the half-interest in land was held on trust for the appellant and that the property purchased in joint names was not held on trust. The court also ruled that the power of attorney was not enforceable due to the revocation of consent.

Orders