Zheng v Cai - [2009] HCATrans 299

[2009] HCATrans 299

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S67 of 2009

B e t w e e n -
TIAN ZHEN ZHENG
Appellant
and
DEJU CAI
Respondent

FRENCH CJ
GUMMOW J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 NOVEMBER 2009, AT 10.01 AM

MS S. NORTON, SC: If the Court pleases, I appear for the applicant with my learned friend, MS M. FRASER. (instructed by Brydens Law Office)

MR S.G. CAMPBELL, SC: I appear with my learned friend, MR S.E. McCARTHY, for the respondent, may it please the Court. (instructed by McLachlan Chilton Solicitors)

FRENCH CJ: Yes, Ms Norton.

MS NORTON: As your Honours are aware, this is an application for special leave to appeal a decision of the New South Wales Supreme Court of Appeal with respect to an adjustment they made to economic loss, both past and future, with respect to a lady who was injured in a motor vehicle accident. Damages under that Act fall to be determined in accordance with the Act, but it is common ground between the parties that, with respect to this application and the appeal itself, if leave be given, it is common law principles that are relevant on this point.

What happened was the trial judge found that certain payments made to the applicant by a church of which she was a member should not be deducted from her economic loss, both past and future. The Court of Appeal of New South Wales found that those payments should be deducted.

I would like to start by taking a little time to take us through the actual findings made by the trial judge and some of the comments he made. The judgment of the District Court was not an ex tempore judgment, but it was handed down reasonably quickly after the trial. So I would ask the Court to make some allowance for that in that sometimes it is setting out - you have to go backwards and forwards a bit.

We say there are a number of very important things that the trial judge found and that are not truly challenged in this application. The first is on the first page of the judgment, which is at 207 of the application book, at about point 30 where the trial judge made a finding:

The plaintiff appeared to be a satisfactory witness although she gave her evidence through an interpreter so at times it is always difficult to assess it.
The case became complicated as the defendant put to the plaintiff ‑ ‑ ‑

GUMMOW J: Where are you reading from, Ms Norton?

MS NORTON: Point 30.

FRENCH CJ: Page 207?

MS NORTON: Page 207, I am sorry, your Honour, 207 – between 30 and 40.

GUMMOW J: Thank you.

MS NORTON:

The case became complicated as the defendant put to the plaintiff that she was not…

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 Zheng v Cai

Details

AGLC: Zheng v Cai [2009] HCATrans 299
Case: [2009] HCATrans 299
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Mr Zheng and Ms Cai concerning the ownership of a property. The central issue revolved around whether Ms Cai had acquired a beneficial interest in the property, which was registered solely in Mr Zheng's name, through a resulting or constructive trust.

The High Court was required to determine whether the evidence established that Ms Cai had contributed to the purchase price of the property in circumstances that would give rise to a resulting trust in her favour. Further, the Court had to consider whether, in the alternative, the conduct of the parties and the circumstances surrounding the acquisition and subsequent management of the property gave rise to a constructive trust, either by common intention or unconscionability.

The Court analysed the principles of resulting and constructive trusts in the context of property ownership. It was held that for a resulting trust to arise, there must be evidence of a direct contribution to the purchase price, or to the discharge of a mortgage, at the time of acquisition. In this instance, the Court found that Ms Cai had not made such a direct financial contribution. However, the Court also examined the doctrine of common intention constructive trusts, which requires evidence of a common intention that the beneficial interest in the property would be shared, and that the party seeking to establish the trust acted to their detriment in reliance on that intention. The Court found that the evidence did not support a common intention that Ms Cai would have a beneficial interest in the property.

The High Court ultimately dismissed the appeal, finding that neither a resulting nor a constructive trust had been established on the facts presented.

Orders