SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Wu v Wu (No 2) |
Citation: | [2024] ACTCA 29 |
Hearing Date: | 11 November 2024 |
Decision Date: | 14 November 2024 |
Before: | Mossop, Baker & McWilliam JJ |
Decision: | (1) The appeal is allowed. (2) Save as to the declaration as to the plaintiff’s right to reside in [the O’Malley property] for life or until he no longer desires, the orders made in proceeding SC 410 of 2020 on 21 December 2022 are set aside. (3) The Court declares that the respondent holds the legal title to [the O’Malley property] as follows: (a) 50% of the beneficial interest in her own name; and (b) 50% on trust for the separate and severable beneficial interest of the appellant. (4) Subject to order 5, the respondent is to pay the appellant’s costs of the appeal and of the proceedings at first instance. (5) If either party seeks a variation of order 4 within 7 days of these orders, order 4 is stayed until further order. |
Catchwords: | APPEAL – EQUITY – Undue influence – unconscionable conduct – whether presumption of undue influence established – whether defence of laches applies – whether remedial constructive trust appropriate APPEAL – PROCEDURE – remittal – whether to remit proceeding – appellant 100 years old – where further evidence limited in nature – where no advantage of trial judge in circumstances of this case – no order for remittal made |
Legislation Cited: | Supreme Court Act 1933 (ACT) ss 37N(2), 37N(3) |
Cases Cited: | Alati v Kruger (1955) 94 CLR 216 Allcard v Skinner (1887) 36 Ch D 145 Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; 195 CLR 566 Bosanac v Federal Commissioner of Taxation [2022] HCA 34; 275 CLR 37 Bright v Legerton (1861) 45 ER 755 Brown v Brown (1993) 31 NSWLR 582 Calverley v Green (1984) 155 CLR 242 at 256 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 Demetrios v Gikas Dry Cleaning Industries Pty Ltd (1991) 22 NSWLR 561 Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; 200 FCR 296 Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; 56 NSWLR 298 Johnson v Buttress (1936) 56 CLR 113 Kakavas v Crown Melbourne Ltd [2013] HCA 25; 250 CLR 392 Lee v Lee [2019] HCA 28; 266 CLR 129 Macguire v Makaronis (1997) 188 CLR 449 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Spence v Crawford [1939] 3 All ER 271 Stubbings v Jams 2 Pty Ltd [2022] HCA 6; 276 CLR 1 T Choithram International SA v Pagarani [2001] 1 WLR 1 |
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- AGLC
- Wu v Wu (No 2) [2024] ACTCA 29
- Case
- [2024] ACTCA 29
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the presumption of undue influence had been established, whether the defence of laches was applicable, and whether a remedial constructive trust was an appropriate remedy. The Court also considered whether the proceeding should be remitted for further evidence, particularly given the appellant's advanced age.
The Court allowed the appeal, finding that the presumption of undue influence was established and that the respondent had failed to rebut it. The Court reasoned that the relationship between the parties, coupled with the circumstances surrounding the transfer of the property, gave rise to the presumption. The defence of laches was rejected. The Court determined that a remedial constructive trust was appropriate to reflect the father's beneficial interest in the property. The Court declined to remit the proceeding, noting that the further evidence was limited and that there was no advantage to be gained from a remittal in the circumstances.
The Court set aside most of the orders made at first instance, save for a declaration regarding the plaintiff's right to reside in the property. The Court declared that the respondent held the legal title to the property, with 50% of the beneficial interest in her own name and 50% on trust for the appellant. The respondent was ordered to pay the appellant's costs of the appeal and the proceedings at first instance, with a provision for a potential variation of this order within seven days.
Orders
Orders of the court
(1) The appeal is allowed.
(2) Save as to the declaration as to the plaintiff’s right to reside in [the O’Malley property] for life or until he no longer desires, the orders made in proceeding SC 410 of 2020 on 21 December 2022 are set aside.
(3) The Court declares that the respondent holds the legal title to [the O’Malley property] as follows:
(a) 50% of the beneficial interest in her own name; and
(b) 50% on trust for the separate and severable beneficial interest of the appellant.
(4) Subject to order 5, the respondent is to pay the appellant’s costs of the appeal and of the proceedings at first instance.
(5) If either party seeks a variation of order 4 within 7 days of these orders, order 4 is stayed until further order.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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