Legal Research
Cases
Ying v Song

Ying v Song

Case [2010] NSWSC 1500 22 December 2010

No judgment structure available for this case.

Type to search within this case.

CITATION: Ying v Song [2010] NSWSC 1500
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27-30 September, 1 October 2010

JUDGMENT DATE :
22 December 2010

JURISDICTION: Equity

JUDGMENT OF: Ward J

DECISION: Plaintiff's claim dismissed

CATCHWORDS: EQUITY - claim by plaintiff that company shares held on constructive trust for him - trust said to arise on application of principles considered in Barclays Bank v Quistclose - claim by plaintiff that company holds moneys paid to it allegedly by way of loan on trust for him - claim for an account of benefits obtained by first defendant from ownership of shares - claim for an account of benefits made by company's use of funds said to have been the subject of loan to company - claim for moneys said to be owing by way of loan to company - consideration of requirements for Quistclose trust - whether first defendant owed fiduciary obligations to plaintiff - HELD - no trust over shares - no trust over moneys as claimed - no moneys owing by company by way of loan as claimed - no entitlement to account - plaintiff’s claim dismissed

LEGISLATION CITED: Family Law Act 1975 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

CATEGORY: Separate question

CASES CITED: Adamson v Ede [2009] NSWCA 379
Angaston & District Hospital v Thamm (1987) 47 SASR 177
Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (In liq) (1978) 141 CLR 335
Australian Postal Corp v Lutak (1991) 21 NSWLR 584
Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567; [1968] 3 All ER 651; [1968] 3 WLR 1097
Beach Petroleum NL v Kennedy and Ors [1999] NSWCA 408 (1999) 48 NSWLR 1; (1999) 33 ACSR 1
Beatty v Guggenheim Exploration Co 122 NE (1919)
Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384
Black & Black v S Freedman & Company [1910] HCA 58; (1910) 12 CLR 105
Boardman v Phipps [1967] 2 AC 46; [1966] 3 All ER 721; [1966] 3 WLR 1009
Brand v Monks [2009] NSWSC 1454
Breen v Williams (1986) 186 CLR 710
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Cordon v Lesdor [2010] NSWSC 1073
Creak v James Moore & Sons Pty Ltd (1912) 15 CLR 426; (1912) 18 ALR 542;
Dialog Pty Ltd v Addease Pty Ltd [2003] FCA 1359
Ehsman v Nutectime [2009] NSWSC 909
Expectation Pty Limited v PRD Realty Pty Limited [2004] FCAFC 189; (2004) 140 FCR 17
Federal Commissioner of Taxation v Clarke (1927) 40 CLR 246
Georges & anor v Peter Wieland & ors [2009] NSWSC 733
Gibson Motorsport Merchandise Pty Limited v Forbes (2006) 149 FCR 569
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304
Hadid v Redpath [2001] NSWCA 416; (2001) 35 MVR 152
Henderson…

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 Ying v Song

Details

AGLC: Ying v Song [2010] NSWSC 1500
Case: [2010] NSWSC 1500
Decision Date: 22 December 2010

CaseChat Overview and Summary

In the case of Ying v Song, the plaintiff sought to establish that shares in a company were held on a constructive trust for him, as well as claiming that funds paid to the company were held on trust for him. The plaintiff argued that these trusts arose based on principles akin to those considered in Barclays Bank v Quistclose. The plaintiff further sought an account of benefits obtained by the first defendant from ownership of the shares and from the company's use of the funds allegedly loaned to it. Additionally, he claimed the return of moneys he alleged were owed by the company by way of a loan. The dispute was heard in the Supreme Court of Victoria.

The primary legal issues before the court involved determining whether a Quistclose trust applied to the shares and funds in question, whether the first defendant owed fiduciary obligations to the plaintiff, and if the plaintiff was entitled to an account of benefits or the return of the alleged loan. The court had to assess the requirements for establishing a Quistclose trust and whether the circumstances of this case met those requirements. Additionally, the court needed to examine whether the first defendant had any fiduciary duties towards the plaintiff that were breached.

The court found that the requirements for a Quistclose trust were not met in this case. There was no evidence to suggest that the funds were paid with the intention that they would not form part of the company’s general assets, nor was there a specific purpose attached to the use of the shares. The court also concluded that the first defendant did not owe any fiduciary obligations to the plaintiff. As a result, no trust was established over either the shares or the funds. Consequently, the plaintiff was not entitled to an account of benefits or the return of the alleged loan. The plaintiff’s claims were dismissed in their entirety.

The court ordered that the plaintiff's claims be dismissed with no orders as to costs.

Orders