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Woo v Woo

Woo v Woo

Case [2010] NSWSC 1216 22 October 2010

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CITATION: Woo & Anor v Woo [2010] NSWSC 1216
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12, 13 and 14 October 2010

JUDGMENT DATE :
22 October 2010

JUDGMENT OF: Bryson AJ at 1

DECISION: Judgment for the defendant with costs.

CATCHWORDS: TRUST - implied constructive and resulting trusts - plaintiffs (mother and sister of defendant) claimed on several bases that trusts, not evidenced in writing, and an equitable mortgage by deposit of deeds, arose from conversations at various times from 1988 to 2003 over home of which defendant is registered proprietor: on consideration of evidence in detail of numerous events, these claims failed on the facts. - LIMITATION OF ACTIONS - consideration of standing of defendant's affidavit as acknowledgement and confirmation under s54 of Limitations Act 1969 - as the affidavit was made after expiry of 12 year limitation on claim for conversion of trust money it was not available as acknowledgement - expression of doubt whether affidavit evidence can be an acknowledgment.

LEGISLATION CITED: Limitation Act 1623
Limitation Act 1969
Lord Tenterden’s Act 1829 (Imp)
Property Law Act 1928 (Vic)
Written Memorandum Act 1834

CATEGORY: Principal judgment

CASES CITED: Baumgartner v Baumgartner (1987) 164 CLR 137
Blair v Nugent (1846) 3 Jo & Lat 658
Briginshaw v Briginshaw (1938) 60 CLR 336
Brown v Brown (1993) 31 NSWLR 582
Browne v Dunn (1893) 6 R 67 (HL)
Chidiac v Maatouk [2010] NSWSC 386
Duncan v Mendes [1998] NSWCA 278
General Credits Ltd v Wenham (1989) 18 NSWLR 570
Hipworth v Mahar (1952) 87 CLR 335
Marks v Roads & Traffic Authority of New South Wales (2004) Aust Torts Reports 81-732; [2004] NSWCA 43
Muschinski v Dodds (1985) 160 CLR 583
Spencer v Hemmerde [1922] 2 AC 507
The Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535
Young v Queensland Trustees Ltd (1956) 99 CLR 560

TEXTS CITED: Not applicable

PARTIES: Kit Mon Yin Woo
Cindy May Hing Woo
Joseph Cho Wai Woo

FILE NUMBER(S): SC 2010/22216

COUNSEL: Pl: Mr S B Loughnan
Def: Mr R Glasson

SOLICITORS: Pl: Geoffrey See & Co
Def: Austin Haworth & Lexon Legal

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

Friday 22 October 2010

SC 2010/22216 Kit Mon Yin WOO & Anor v Joseph Cho Wai WOO

JUDGMENT

1 HIS HONOUR: The parties to these proceedings are closely related. The first plaintiff is the mother of the second plaintiff, who is her youngest child and the youngest of her three daughters and the defendant is the youngest of her three sons. The first plaintiff was born in 1928 and at the time of hearing was 81 years of age. The defendant was born in 1958 and the second plaintiff was born in 1960.

2 The family migrated to Australia from Hong Kong in 1975 with several other family members. There was considerable adversity in the first plaintiff’s early years in…

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 Woo v Woo

Details

AGLC: Woo v Woo [2010] NSWSC 1216
Case: [2010] NSWSC 1216
Decision Date: 22 October 2010

CaseChat Overview and Summary

In the case of Woo v Woo, the plaintiffs, who are the mother and sister of the defendant, sought to establish trusts and an equitable mortgage over a property that the defendant is the registered proprietor of. They argued that these trusts and the mortgage arose from various conversations between 1988 and 2003. The court was required to determine whether the plaintiffs' claims were substantiated by the evidence provided. The court had to decide whether there was sufficient evidence to support the existence of the alleged trusts and the equitable mortgage, and whether the defendant's affidavit could be considered as an acknowledgment under section 54 of the Limitations Act 1969.

The court carefully considered the evidence and concluded that the plaintiffs' claims were not substantiated by the facts presented. The court found that there was no sufficient evidence to establish the implied constructive or resulting trusts, or the equitable mortgage, as claimed. Furthermore, the court examined the standing of the defendant's affidavit in relation to the limitation period for the conversion of trust money. The affidavit, made after the expiry of the 12-year limitation period, was deemed not to be an acknowledgment under the statute, and the court expressed doubt about whether such an affidavit could ever constitute an acknowledgment.

The court's reasoning led to the dismissal of the plaintiffs' claims. The evidence did not support the existence of the trusts or the equitable mortgage, and the affidavit could not be considered as an acknowledgment for the purposes of the limitation period. The court did not find it necessary to provide further orders as the claims were already dismissed on the basis of the evidence and the application of the limitation period.

Orders