Zhang v Metcalf

[2020] NSWCA 228

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…