Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Zhang v Metcalf; Metcalf v Zhang [2020] NSWCA 228 Hearing dates: 27 August 2020 Decision date: 23 September 2020 Before: Gleeson JA at [1]
Payne JA at [139]
White JA at [140]Decision: (1) Appeal allowed in part as to ground 4.
(2) Appeal otherwise dismissed.
(3) Cross-appeal dismissed.
(4) Vary orders 2, 3, 4 and 5 made by the primary judge on 19 December 2019 by:
(a) deleting all references to the figure “$447,899.38” and inserting in its place the figure “$422,709”;
(b) deleting all references to the figure “$469,712.78” and inserting in its place the figure “$443,010.95”;
(c) deleting the reference to the figure “$26,587.52” and inserting in its place the figure “$25,076.07”;
(d) extending the date in order 5 from “5 February 2020” to “7 October 2020”;
such that orders 2, 3, 4 and 5 as amended, with effect from 19 December 2019, are as follows:
(2) Declare that:
(a) the Plaintiff as against the Defendant is entitled to an award in the sum of $422,709.00 on his claim for the balance of his entitlement to such net proceeds of sale; and
(b) the Defendant as against the Plaintiff is entitled to an award in the sum of $4,774.12, on her claim for an account for the benefits flowing from her advance of $60,000 to the mortgage offset account in respect of the said land.
(3) Judgment and order for the Plaintiff against the Defendant in the sum of $443,010.95 comprising:
(a) the balance of the awards in 2(a) and (b) above, namely $417,934.88; and
(b) interest on such balance from 16 September 2016 up to judgment but only for three years for the reasons indicated at the rate of 2% per annum, namely $25,076.07.
(4) Order that the Freezing Order of the Court made in proceedings 2016/371835 on 12 or 15 December 2016 be varied only so as to enable funds in the sum of $443,010.95 to be paid or transferred to the Plaintiff from [account No. 1856].
(5) Order that the Defendant take any necessary steps and sign all necessary documents to procure the payment of such sum of $443,010.95 into the Trust account of the solicitors for the Plaintiff by 4.00 pm on 7 October 2020.
(5) No order as to costs of the appeal or cross-appeal, to the intent that the parties bear their own costs of the proceedings in this Court.
Catchwords: EQUITY – trusts and trustees – resulting trusts – purchase money trusts – where de facto partners purchased commercial property as tenants in common in equal shares – whether presumption of resulting trust rebutted – where contemporaneous deed evidencing actual intention of parties to hold property beneficially in equal shares – appropriate division of net sale proceeds of the commercial property
EQUITY – trusts and trustees – resulting trusts – purchase money trusts – where de facto partners purchased residential property as joint tenants – whether presumption of resulting…
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- AGLC
- Zhang v Metcalf; Metcalf v Zhang [2020] NSWCA 228
- Case
- [2020] NSWCA 228
- Decision Date
CaseChat Overview and Summary
The court allowed the appeal in part, specifically concerning ground 4, but dismissed the appeal otherwise and the cross-appeal. The primary judge's orders were varied to adjust the monetary amounts awarded and to extend a deadline for payment. The amended orders declared the plaintiff's entitlement to a sum of $422,709.00 for his share of the net proceeds of sale of the commercial property, and the defendant's entitlement to $4,774.12 for benefits from her advance to the mortgage offset account. Judgment was entered for the plaintiff against the defendant for $443,010.95, which comprised the balance of these awards and interest calculated for three years at 2% per annum. A freezing order was varied to permit the payment of this sum to the plaintiff, with the defendant ordered to take necessary steps to procure the payment by 7 October 2020. The parties were ordered to bear their own costs of the appeal and cross-appeal.
Orders
Orders of the court
(1) Appeal allowed in part as to ground 4.
(2) Appeal otherwise dismissed.
(3) Cross-appeal dismissed.
(4) Vary orders 2, 3, 4 and 5 made by the primary judge on 19 December 2019 by:
(a) deleting all references to the figure “$447,899.38” and inserting in its place the figure “$422,709”;
(b) deleting all references to the figure “$469,712.78” and inserting in its place the figure “$443,010.95”;
(c) deleting the reference to the figure “$26,587.52” and inserting in its place the figure “$25,076.07”;
(d) extending the date in order 5 from “5 February 2020” to “7 October 2020”;
such that orders 2, 3, 4 and 5 as amended, with effect from 19 December 2019, are as follows:
(2) Declare that:
(a) the Plaintiff as against the Defendant is entitled to an award in the sum of $422,709.00 on his claim for the balance of his entitlement to such net proceeds of sale; and
(b) the Defendant as against the Plaintiff is entitled to an award in the sum of $4,774.12, on her claim for an account for the benefits flowing from her advance of $60,000 to the mortgage offset account in respect of the said land.
(3) Judgment and order for the Plaintiff against the Defendant in the sum of $443,010.95 comprising:
(a) the balance of the awards in 2(a) and (b) above, namely $417,934.88; and
(b) interest on such balance from 16 September 2016 up to judgment but only for three years for the reasons indicated at the rate of 2% per annum, namely $25,076.07.
(4) Order that the Freezing Order of the Court made in proceedings 2016/371835 on 12 or 15 December 2016 be varied only so as to enable funds in the sum of $443,010.95 to be paid or transferred to the Plaintiff from [account No. 1856].
(5) Order that the Defendant take any necessary steps and sign all necessary documents to procure the payment of such sum of $443,010.95 into the Trust account of the solicitors for the Plaintiff by 4.00 pm on 7 October 2020.
(5) No order as to costs of the appeal or cross-appeal, to the intent that the parties bear their own costs of the proceedings in this Court.
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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