Yoshino v Niddrie - [2003] NSWSC 57

CITATION: Yoshino v Niddrie [2003] NSWSC 57

HEARING DATE(S): 12 and 13 February 2003

JUDGMENT DATE:
13 February 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Judgment for Plaintiff (Mother).

CATCHWORDS: EQUITY [100]- Presumption of advancement- Mother purchases property in joint names of daughter and son-in-law- Whether presumption applies.

CASES CITED: Calverley v Green (1984) 155 CLR 242
Knight v Biss [1954] NZLR 535
Nelson v Nelson (1995) 184 CLR 538

PARTIES :
Shigeko Yoshino (P)
Rika Niddrie (D1)
Steven Albert Niddrie (D2)

FILE NUMBER(S): SC 3675/01

COUNSEL: C M Simpson (P)
V Hartstein (D1)
A Canceri (D2)

SOLICITORS: Newnhams Solicitors (P)
Abrams and Associates (D1)
J Kekatos Lawyers (D2)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 13 February 2003

3675/01 – YOSHINO v NIDDRIE

JUDGMENT

1 HIS HONOUR: The plaintiff is the mother of the first defendant and the mother-in-law of the second defendant. The first defendant, a lady, and the second defendant, a gentleman, were married on 8 October 1994. They separated in September 2000 and were divorced in April 2002.

2 The plaintiff was a full-time resident of Japan when she divorced her husband. She had two children, a son, Osamu, and the first defendant. As part of her divorce settlement the plaintiff received substantial capital funds.

3 At this time the plaintiff decided that she wanted to have a completely fresh start in life. Her daughter was a permanent resident of Australia and the plaintiff made up her mind to emigrate to Australia. It would seem that she also intended in due course for her son to join her. I need not spend any further time on that aspect of the matter as it would appear that later the son did come to Australia but did not like it here and went back to Japan.

4 In early 1996 the plaintiff requested her daughter, the first defendant, to look for a house in which she could live in Sydney. She made it clear that her daughter and son-in-law could live with her, if they wished to do so.

5 The plaintiff remitted various sums from Japan to Sydney. The sums were remitted progressively as the moneys flowed through to the plaintiff from her former husband in instalments, with the final sum coming on the sale of the former matrimonial home in Japan. I will deal with the amounts sent in Australian dollars, though they may have originated in so many Japanese yen.

6 On 25 March 1996 the plaintiff transferred $118,991 to the first defendant's cash management account with the National Australia Bank. Those moneys were withdrawn the next day, but were in the control of the first defendant. On 18 April 1996 the plaintiff transferred a further $115,228 to the same account, which again went in and out.

7 On 18 December 1996 the plaintiff transferred $4,457 to the joint account of the first and second defendant, and on 28 January 1997, when her…

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 Yoshino v Niddrie

Details

AGLC: Yoshino v Niddrie [2003] NSWSC 57
Case: [2003] NSWSC 57
Decision Date: 13 February 2003

CaseChat Overview and Summary

Yoshino and Niddrie were parties to a dispute involving the ownership of a property purchased by the mother of Niddrie in joint names with Niddrie and his wife. The central issue before the court was whether the presumption of advancement applied in this scenario, which would imply that the property was intended as a gift to the purchasers. This presumption arises in situations where a family member purchases property in the names of other family members, and it can be rebutted by evidence to the contrary.

The court was required to determine whether the presumption of advancement could be applied in this case and, if so, whether it had been successfully rebutted. The primary legal issue was whether the mother's intention to purchase the property in the names of Niddrie and his wife constituted a gift, which would be subject to the presumption of advancement. The court needed to examine the evidence presented to understand the true nature of the transaction and determine if there was any evidence that could rebut the presumption.

The court concluded that the presumption of advancement did apply in this case, as the mother's purchase of the property in the names of Niddrie and his wife was indicative of an intention to make a gift. However, the court also found that the presumption had been successfully rebutted by evidence showing that the mother had intended to retain control over the property and had not intended to make a gift to Niddrie and his wife. The court's reasoning was based on the evidence presented and the application of legal principles regarding the presumption of advancement. The final orders of the court were that the property remained in the name of the mother, and Niddrie and his wife were not entitled to any interest in the property.

Orders