Fan v Han

Judgment

1. HIS HONOUR: In Forgeard v Shanahan (1994) 35 NSWLR 206 the Court of Appeal considered questions arising between co-owners of property following the appointment of trustees for sale in the determination of amounts to which each was entitled from the proceeds of sale. Kirby P observed (at 208) that: "The amounts involved in the competing claims are small in absolute terms. They are even smaller in terms of the differences between the nett adjustment, when the competing approaches of the parties are compared. As often happens, the complications of the applicable legal principles vary in inverse proportion to the amount at stake in the proceedings."
2. So it is in this case.
3. The plaintiff, Yi Jun Fan ("Mr Fan") and the defendant, Rui Han ("Ms Han") married in 1984. They have one child, Yu Xian Fan, sometimes known as Jack who was born in 1987. In 1999 they purchased a property in Symonds Avenue, North Parramatta ("the North Parramatta property") as joint tenants. In May 2002 they purchased a unit on the Great Western Highway, Parramatta ("the Parramatta property") as tenants-in-common in percentages of 90 per cent for Mr Fan and 10 per cent to Ms Han. In November 2003 they separated, although they remained living under the same roof. The Parramatta property was sold in January 2004. They were divorced on 10 December 2005. No order has been made under the Family Law Act 1975 (Cth) for an alteration of their property interests. An application for an order for the adjustment for their property interests was filed by Ms Han in the Federal Magistrates Court on 5 November 2012. She sought leave pursuant to s 44(3) of the Family Law Act for the application to be granted out of time. Section 44(3) of the Family Law Act fixes a 12-month period from the date upon which a divorce becomes effective for the commencement of such an application, but leave can be granted for such proceedings to be brought out of time, or the application can be brought with the consent of the other spouse. On 6 December 2012 Mr Fan consented to the grant of leave. On 13 June 2014 he filed an amended response to Ms Han's application that purportedly withdrew that consent. On 4 September 2014 Ms Han discontinued her proceeding in the Federal Magistrates Court.
4. The issues on the present application concern property transactions between the parties entered into after their divorce. The resolution of those issues depends on the application of the rules of common law and equity and not on the exercise of any discretionary statutory power to adjust the parties' interests in property.
5. The plaintiff, Mr Fan, contends that in about January 2006 he and Ms Han made an oral agreement that she would transfer to him her interest in their family home at North Parramatta. He deposes that he and Ms Han agreed on a value of their equity in the North Parramatta property, that is, that they agreed on an amount that represented the difference between the value of the land and the mortgage debt on the land. He says that they agreed that their equity in the North Parramatta property was $280,000. He says that they agreed that their equity in that property should be taken to be $150,000 for him and $130,000 for her and that he agreed to pay her her share of the net value of that property, being $130,000, in return for which she would transfer to him her interest in the North Parramatta property. Mr Fan says that he performed his part of the agreement by arranging for their existing joint loan facility to be increased by $111,088 and by his providing additional sums of $15,273 and $4,000 that were used in the acquisition of a unit in Auburn that was purchased by Ms Han, solely in her name, in April 2006. Mr Fan says that although the sum of $111,088 was drawn down under a joint facility both parties had with AIMS Home Loans Pty Ltd ("AIMS"), it was understood and agreed between them that he would be responsible for discharging all of the borrowings secured on the North Parramatta property, and he would wholly own that property beneficially.
6. The purchase of the Auburn unit by Ms Han was completed on or about 12 April 2006. That unit is unencumbered. It was purchased for $175,000. There is no dispute that $111,088 that was jointly borrowed from AIMS was used in the purchase of the Auburn unit. Mr Fan says that he contributed a further $19,273 of his funds. This is disputed by Ms Han.
7. Between 2006 and 2011 Mr Fan serviced the loan secured over the North Parramatta property. Ms Han made no contribution to the mortgage payments.
8. The unit in Auburn was let to tenants. Ms Han returned to China periodically to be with her family and for health issues. Mr Fan collected the rent on the Auburn property and attended to the payment of expenses for it.
9. Mr Fan deposed that in about October 2006 he telephoned Ms Han in Beijing and pressed her to execute a transfer of the title to the North Parramatta property to him. He said that she agreed to complete the paperwork when she returned to Sydney. He deposed that on her return to Sydney in about late 2006 she said that she could not sign the documents then, but would do so later. He said that Ms Han continued to ignore his requests to transfer her share of the North Parramatta property to him.
10. Mr Fan remarried on 26 April 2008. In 2009 he and his new wife moved to a property at North Rocks. The North Parramatta property was let.
11. In 2011 Mr Fan visited Ms Han in China and attempted to obtain her signature to a power of attorney that would have appointed him as her attorney for the sale of the North Parramatta property. She refused to sign. He had been servicing the loan on the North Parramatta property. In April 2011 he told AIMS that he would no longer continue to service the loan and invited AIMS to exercise its power of sale. AIMS did so. The North Parramatta property was sold at auction by the mortgagee, Perpetual Trustee Co Ltd, for $500,000. The surplus funds from the proceeds of sale of $180,603.12 were paid into Court.
12. Mr Fan claims to be beneficially entitled to all of the moneys paid into Court. He says that he had made an oral agreement with Ms Han to acquire her interest as a joint tenant of the North Parramatta property and that he performed his side of the bargain and that the oral contract was capable of specific performance. He says that Ms Han held her interest in the North Parramatta property on constructive trust for him and accordingly he is entitled to the whole of the proceeds of sale paid into Court.
13. If that claim succeeds, Mr Fan acknowledges that he is not entitled to contribution from Ms Han in respect of his meeting all the mortgage payments secured over the North Parramatta property and he is not entitled to any beneficial interest in the Auburn property. He acknowledges a liability to account for rents collected on the Auburn property, less expenses paid and disbursements made to the parties' son in accordance with an agreement that he had with Ms Han.
14. If Ms Han remains beneficially entitled as a joint tenant of the North Parramatta property to half the proceeds of sale paid into Court, Mr Fan seeks contribution in respect of the mortgage payments that he made for which Ms Han was also liable, and he seeks a declaration that he is beneficially entitled to a share of the Auburn property registered in Ms Han's name, commensurate with the amount of his funds (including his share of the moneys borrowed from AIMS) that were used to acquire the Auburn property. He claims that beneficial interest either under a resulting or constructive trust. Mr Fan accepts that if Ms Han did not hold her interest in the North Parramatta property on trust for him, he must account to her for net income received from the North Parramatta property (that is, rents less outgoings). He accepts that on his claim for contribution he must give credit for an occupation fee to the extent to which he had the greater occupancy of the North Parramatta property between April 2006 and June 2009 (Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,497). There is a dispute in relation to the calculation of the rents received and outgoings for the North Parramatta property and as to the calculation of such an occupation fee.
15. Mr Fan collected the rents on the Auburn property until about the end of 2012 or March 2013. From that date the rents have been collected by Jack Fan on behalf of his mother. If Mr Fan is entitled to a beneficial interest in the Auburn property Ms Han may have to account to him for a portion of the rents collected after expenses.
16. There is a dispute as to how much rent was collected by Mr Fan from the Auburn property and for how much he is liable to account to Ms Han. Mr Fan contends that insofar as Ms Han seeks an account for rents collected more than six years before the filing of her cross-claim her claim is statute-barred. Mr Gruzman, who appeared for Ms Han, made no submissions to the contrary.
17. Ms Han denies that she agreed with Mr Fan that he would acquire her interest in the North Parramatta property in return for her acquiring the full beneficial interest in the Auburn property, partly with moneys he contributed and partly with moneys borrowed by them jointly for which he agreed to be personally responsible. She contends that if any such agreement were made it is unenforceable because: a. there is no note or memorandum signed by her of the agreement (Conveyancing Act 1919 (NSW), s 54A); b. the claim to enforce the agreement is barred by the Limitation Act 1969 (NSW) or on principles of laches; c. if such an agreement were made, Ms Han was induced to enter into it by reason of misrepresentations or material non-disclosures by Mr Fan, or she was coerced into entering into the agreement; d. to enforce the agreement would be contrary to public policy, because Mr Fan intended it to be a binding agreement for the division of matrimonial assets; and e. the agreement should not be enforced because of unclean hands on the part of Mr Fan.
18. For reasons which were never clearly articulated, Mr Gruzman for Ms Han also submitted that the same matters that were said to amount to misrepresentation, non-disclosure, coercion or unclean hands in relation to Mr Fan's attempt to enforce the alleged oral agreement for the transfer of Ms Han's interest in the North Parramatta property to him, were also an answer to the alternative claim for contribution and a beneficial interest in the Auburn property.
19. Both Mr Fan and Ms Han gave evidence through interpreters. This makes an assessment of their credit based upon their evidence in the witness box particularly difficult. Assessing credit by demeanour is a dubious task at best. Sometimes a witness' preparedness to respond to questions directly or to evade answering difficult questions by giving non-responsive answers can be a guide to assessing the witness' credit. However, where the evidence is given through interpreters, even that assessment is difficult because the Court cannot be sure how counsel's question was interpreted to the witness.

Background

1. The parties married in China in June 1984. They have one son, Yu Xian Fan (Jack) who was born in 1987. Mr Fan emigrated to Australia in about 1990 and was joined by his wife and son in 1996. He worked as a music teacher and had a small business selling musical instruments.
2. In 1999 the parties purchased the North Parramatta property as joint tenants. The purchase price was $286,000. The purchase was funded, in part, by a loan through the National Australia Bank. In about May 2002 the loan from the National Australia Bank was refinanced through AIMS. The North Parramatta property was the parties' family home. Between 2001 and 2002 it was also used by Mr Fan for his giving music lessons.
3. In 2002 the parties purchased the Parramatta property which was in a better location for Mr Fan's music business. They purchased that property as tenants-in-common with Mr Fan having a 90 per cent share and Ms Han a 10 per cent share. The property was purchased in May 2002 for $146,500. The funds for the purchase came from a loan with AIMS for $148,000 secured over both properties.
4. The parties had opened a joint account with St George Bank.
5. The parties separated in November 2003, although they continued to live under the same roof. In about January 2004 they sold the Parramatta property for $172,000. $145,114.89 was paid from the proceeds of sale to discharge the loan that had been taken out with AIMS.
6. The parties had separate loan accounts with AIMS: one called the A account which was the loan for the purchase of the North Parramatta property; and the other was called a B account which initially was the loan to acquire the Parramatta property. The B account was discharged when that property was sold. The net proceeds of sale of the Parramatta property (totalling $167,451.24) were paid into the parties' joint account with St George. After payment of $145,114.89 to discharge the B loan, the funds in the joint account were increased by $22,336.35.
7. Mr Fan had been making payments into the St George account in the parties' joint names that were used to service the mortgage debt on the AIMS loan. On 28 February 2005 the parties drew down $30,000 from AIMS by increasing their mortgage debt. That payment was transferred to their joint account with the St George Bank. Apart from $10,000 that was withdrawn in March 2005 that Mr Fan said was divided equally between them, the balance of the moneys were used to meet the instalments on the mortgage debt. Mr Fan withdrew $10,000 for the use in his own business in May 2005, but the moneys were repaid with interest in October 2005.

Alleged Agreement to Transfer Interest in North Parramatta Property

1. Mr Fan deposed that in about January 2006 he and Ms Han had a conversation to the following effect: "Me 'Our marriage has finished, and Jack has completed his HSC. I suggest we finalise our property settlement. I should give you half of our asset.' Han 'I agree with this arrangement.' Me 'Lets find two real estate agents to value how much this property is worth.' Han 'I agree.'"
2. He deposed that after obtaining the real estate agent's appraisals for the North Parramatta property he and Ms Han agreed that its market value was $470,000. Ms Han did not specifically address this part of Mr Fan's evidence. She agreed that a real estate valuer had been retained who had valued the property at $470,000. Mr Fan deposed: "41 In or about late January 2006, I presented the two real estate appraisals to the Defendant, and then the Defendant and I had the following conversation (in words to the effect): Me 'Let's agree on the market value of the property as at the higher range, so $470,000.' Han 'I agree.' Me 'The real estate agents didn't take into account the drainage easement at the back of the property, this will affect the value of the property when it is sold. Perhaps the drainage will reduce the value of the property by 5% to 10% of the market value. But we can put that to one side for the moment. The outstanding home loan is approximately $190,000. This means we have $280,000 equity left to split between us.' Han 'I agree with the value, I would like to take the money and you keep the property. I will transfer my share of the property to you. You organise the paperwork and I will sign the paperwork required to transfer the property to your name.' 42 At this time, I observed the Defendant writing some figures down on a piece of paper and making some calculations. Han 'This means I will get $140,000 if we split the equity.' Me 'The drainage will affect the value of the property, so can I get credited $20,000 or $30,000 for the reduced value of the property due to the drainage? This is because the real value of the property when I sell it will be reduced by $20,000 or $30,000. Do you think this is fair?' Han 'I will give you some credit for the reduced value of the property. How about I get $135,000 and we change the property to your sole name?' Me 'This amount is not enough, ever since I came to Australia, I have been working and all of my earnings go to our family and our family expenses. You have been receiving money from the government, but I have been earning more than you, my contributions to the family financially have been more.' Han 'Even though I didn't earn as much money as you, I have been looking after the home and performed household chores.' Me 'How about this, you get $130,000 and I keep the property? Without taking into account the reduced value because of the drainage, I will get $150,000.' Han 'Ok, you give me $130,000 cash and I will transfer the property to you. It will then be yours to look after and maintain. I want to buy another property with the $130,000, you need to help me look for another property and help me with the paperwork.' Fan 'I will do my best to help you.'"
3. Ms Han denied making any agreement with Mr Fan for a property settlement and denied ever making an agreement for the transfer of her interest in the North Parramatta property to Mr Fan.
4. Mr Fan ascertained that he and Ms Han could draw down a further $111,088 on their facility with AIMS. He deposed that he had a conversation with Ms Han in which he told her that that was the maximum that AIMS could provide and that he did not have enough money to make up the difference, that is, the difference to make up a payment of $130,000 to Ms Han. According to Mr Fan, Ms Han said that she could help him find someone to lend the money to him and that she did so by putting him in touch with a woman called Yi Cui Fen in Beijing who was a friend of Ms Han's family. Mr Fan deposed that he telephoned Yi Cui Fen who agreed to lend him RMB¥90,000. He said that he agreed with Ms Yi that the loan would be repaid over two years with five per cent interest. He deposed that he received a cheque from Ms Yi in United States dollars and this cheque was exchanged into Australian dollars. $15,273 was deposited into the joint St George Bank account on 8 March 2006. The bank statement records this as a cash deposit.
5. The parties located a unit at Auburn that they agreed to buy. Mr Fan helped Ms Han in looking for the unit. The Auburn unit was bought in Ms Han's name. The purchase price was $175,000. The contract for the purchase of the Auburn property was not in evidence, but a bank cheque was drawn on 10 March 2006 on the joint account for $17,050 that appears to have been the payment that substantially funded payment of the deposit. The balance of the purchase price was raised by the parties' increasing their borrowings from AIMS by $111,088, by Mr Fan contributing a further $4,000 and, he says, $15,273 and by the balance of the funds being raised by Ms Han. Ms Han says that the $15,273 paid into the joint account was sourced from a loan to her from her family.
6. Mr Macauley, who appeared for Mr Fan, submitted that Mr Fan's version as to the circumstances surrounding the purchase of the Auburn property and the drawdown of the further funds from AIMS was inherently plausible. The parties had divorced. It is inherently unlikely that Mr Fan would have agreed to the borrowing of the further moneys from AIMS as well as contributing further moneys himself to enable Ms Han to purchase the Auburn property in her name alone, with his meeting the entirety of the repayments on the borrowings from AIMS and meeting all of the outgoings on the North Parramatta property, unless Ms Han had agreed to transfer her interest in the North Parramatta property to him in return for her acquiring the Auburn property unencumbered.
7. Ms Han's version of events was that after the parties' son moved to Canberra in early 2006 where he attended the Australian National University, Mr Fan told her that she should move out and find another place to live because her presence at the North Parramatta property was interfering with his business. She deposed that in about April 2006 Mr Fan kept asking her to move out and said to her words to the following effect: "I will withdraw from the existing mortgage on the Parramatta property and use it to buy another place for you to live in". She said that it was never her intention to leave the North Parramatta property as she feared that relocation would be a nightmare given her poor state of health.
8. Ms Han did not say that she told Mr Fan that she had no intention of leaving the North Parramatta property. She said that Mr Fan made all the arrangements for the purchase of the property, including organising a solicitor for her and due to her poor state of health she was not in a position to argue with him, but signed all necessary documents when her signature was required. She agreed that she inspected properties with Mr Fan before they settled on purchasing the Auburn property. She agreed that the Auburn property was rented out as soon as it was purchased and that Mr Fan helped in placing advertisements in local newspapers to obtain tenants and helped her renting it out. He did not object to its being rented out.
9. Ms Han had returned to China between 16 November 2005 and 3 February 2006. She departed again for China on 13 May 2006 and was there for almost six months. Between November 2006 and July 2009 she was in Sydney for three months and 10 days between November 2006 and February 2007, for two and a half months between August and November 2007, for just over two months between May and July 2008 and just over two weeks in November and December 2008. Whilst in Sydney she stayed at the North Parramatta property. The Auburn property has always been let.
10. Ms Han's explanation for the reason behind the purchase of the Auburn property does not accord with the objective facts that the Auburn property was acquired and was immediately, and then continuously, rented. On her version of events she allowed Mr Fan to contribute to the purchase of the Auburn property as a place for her to live when she had no intention of departing from the North Parramatta property, except to travel to China.
11. Mr Fan's evidence of the agreement allegedly made with Ms Han also is not wholly in accord with the objective circumstances. He did not pay Ms Han $130,000 of his own money. $111,088 was borrowed by him and Ms Han jointly. Half of the moneys borrowed and used to acquire the Auburn property were her moneys. Although he made all the loan repayments on the two loans that were secured over the North Parramatta property until 2011, his evidence of his agreement with Ms Han does not include any promise on his part to do so.
12. Moreover, Mr Fan's explanation as to why he did not do more to obtain a signed transfer from Ms Han of her interest in the North Parramatta property is not convincing. He deposed that having spoken to AIMS in about April 2006 he told Ms Han that they needed to wait until February or March the following year before title to the property could be transferred to his name, or otherwise they would need to pay a $6,000 penalty to the mortgagee. He said that he had telephoned AIMS and had been told that: "You need to wait until the fixed loan period expires before you take Rui Han's name off the title. The fixed loan period finishes next year. You will pay a heavy penalty in excess of $6,000 if you break the loan now."
13. But the AIMS loans were not fixed loans. They were both variable rate loans.
14. Mr Fan complains that Ms Han kept putting him off when he asked her to sign a document for the sale of the North Parramatta property. This came to a head when he travelled to China in about March 2011 and met her in Beijing. He took with him a power of attorney appointing him as Ms Han's attorney for the sale of the North Parramatta property. The power of attorney provided for Mr Fan to be appointed as Ms Han's attorney to act on her behalf on the sale of the North Parramatta property. It would not have empowered him to execute a transfer of her interest in the North Parramatta property to him. By this time Mr Fan no longer wished to keep the North Parramatta property. He and his new wife had moved to a property at North Rocks in 2009. Nonetheless, proffering the power of attorney for her signature, rather than a memorandum of transfer, does not sit readily with the agreement that Mr Fan deposes he made with Ms Han.
15. Ms Han declined to sign the power of attorney. Although Mr Fan gave evidence that he pressed Ms Han from about October 2006 onwards to transfer the title of the North Parramatta property to him, it does not appear that he ever prepared a memorandum of transfer for her to sign. This may be because when she returned to Sydney at the end of 2006 she said that she could not sign any documents then, but would do it later.
16. I am satisfied that Mr Fan sought to obtain Ms Han's agreement to transfer her interest in the North Parramatta property to him in return for her acquiring the Auburn property partly with funds raised by him and on the basis that he would be responsible for the mortgage debt over the North Parramatta property. But I am not satisfied that she gave any explicit promise or commitment to do that. She was willing to go along with Mr Fan's helping her acquire the Auburn unit and I think she must have known that Mr Fan was not intending to make a gift to her. Nonetheless, in the absence of any contemporaneous corroboration, I am not satisfied that a complete agreement that was intended to be legally binding was made. The length of time that passed since the alleged agreement was made also makes it unlikely that the parties would be able to have any distinct recollection of what was said and the particular terms that might have been discussed.

Ms Han's Defences

1. In case I am wrong in this conclusion and because Mr Gruzman for Ms Han contends that the matters are relevant to Mr Fan's alternative claims, I will deal with Ms Han's contention that any such agreement, if made, would be unenforceable because it was induced by misrepresentation or material non-disclosure, or as a result of coercion and that Mr Fan should be denied equitable relief on the ground of unclean hands. I will also deal with the defence based on s 54A of the Conveyancing Act, notwithstanding that Mr Gruzman, whilst saying that that defence was maintained, advanced no submission in support of it. A defence based upon the Limitation Act was abandoned.
2. Mr Fan pleaded that the agreement was an agreement to finalise the parties' existing financial arrangements after their divorce. Ms Han pleaded that if the agreement alleged by Mr Fan were made, then such an agreement was intended by the parties to be an agreement entered into pursuant to s 90D of the Family Law Act and that by reason of s 90G of the Family Law Act it was not binding on the parties and not enforceable by them. She also alleged that the agreement should not be enforced because: a. it is against public policy for there to be agreements relating to the settlement of financial matters upon the dissolution of a marriage otherwise than in accordance with agreements that can form with the requirements of the Family Law Act; b. Mr Fan misrepresented the value of the Parramatta property as an inducement to Ms Han to enter into the agreement; c. Mr Fan misrepresented the net value of the North Parramatta property as an inducement to Ms Han to enter into the financial agreement in that he failed to reduce the mortgage liability by the sum of $30,000, which sum had been withdrawn from the mortgage account by him and appropriated for his own use and benefit; d. Mr Fan failed to disclose to Ms Han relevant financial matters being: i. his appropriation of the sum of $30,000 redrawn by him on the loan secured over the property; ii. the value of his music business; iii. his savings and other financial assets; iv. the value of his motor vehicle and piano; and v. the value of the furniture and household items retained by him.
3. Ms Han also alleged that the financial agreement was the product of coercive conduct towards her at a time when she was vulnerable on account of her: suffering from a brain tumour that was diagnosed in 2007; being without family in Australia other than Mr Fan and their son, Jack; being left with no option but to vacate the former matrimonial home due to coercive and bullying conduct on Mr Fan's part; having no source of income as she had been a homemaker; having no savings in any account in her own name in Australia; and not speaking English as a first language. She alleged that the value of the property allocated to her in the financial agreement was substantially less than that reserved to Mr Fan and that Mr Fan represented to her that under Australian law she was entitled to less than him in a property settlement after at least 23 years of marriage, whereas in truth and substance she was entitled to more than him. She alleged that she relied upon Mr Fan's representation in entering into the agreement, although elsewhere she denied entering into the agreement.
4. Notwithstanding his pleading, it is clear from Mr Fan's evidence and the balance of the statement of claim that the agreement he alleged was not an agreement for a complete division of the parties' matrimonial property. Nor was it a financial agreement within the meaning of s 90D of the Family Law Act. It did not purport to exclude the jurisdiction of the Family Court or the Federal Magistrates Court (later the Federal Circuit Court) to make orders altering the rights of the parties to the marriage to property. It is not against public policy for former spouses to reach an agreement on the division of assets. Under s 90D of the Family Law Act an agreement is a "financial agreement" within the meaning of Pt VIII where it is made between the parties to the former marriage, is in writing, and is expressed to be made under that section. (The agreement must relate to one of the matters in s 90D(2) which includes how any of the property that either or both parties acquired during the former marriage is to be dealt with.) In certain circumstances such a financial agreement will be binding (s 90G). If the financial agreement is not binding for the purposes of Pt VIII of the Family Law Act, it is not a bar to the making of orders under that Part, but that does not mean that it is not contractually binding (Senior v Anderson (2011) 250 FLR 444 at [94]-[96]).
5. Mr Fan did not contend that the agreement he alleged was made would have precluded the Federal Circuit Court's making an order under s 79 of the Family Law Act altering the interests of the parties in their property. Such proceedings were in fact commenced by Ms Han on 5 November 2012. Those proceedings were discontinued by her on 4 September 2014 after Mr Fan filed an amended Response that purportedly withdrew his consent to the institution of the proceeding more than 12 months after the order for divorce (Family Law Act, s 44(3)). Assuming, without deciding, that it was open to Mr Fan to withdraw his consent, it would still have been open to Ms Han to have sought leave under that section. Contrary to her pleading, Mr Fan's withdrawal of consent did not "exclude the determination of the matter in the more appropriate jurisdiction being the Federal Circuit Court under the provisions of the Family Law Act".
6. It is not clear what was the property whose value Mr Fan was alleged to have misrepresented as an inducement to Ms Han to enter into the "Financial Agreement". She alleged that the misrepresentation was as to the net value of the "Parramatta Property". That term was not defined in either the defence or the amended defence. The defence referred to the North Parramatta property as being the "Property" and the amended defence referred to it as the "North Parramatta Property". In cross-examination it was suggested to Mr Fan that he misrepresented the position in relation to the sale of the Parramatta property, that is, the property on the Great Western Highway, Parramatta, to Ms Han by telling her that: "We broke even on the sale of this property after taking into account all of the expenses and mortgage repayments we paid on the property over the last few years, including interest, stamp duty and legal fees. We did not make much money on the unit."
7. It was put to Mr Fan in cross-examination, in substance, that this was false because the property had been bought for $146,500 and was sold for $172,000, or because after the proceeds of sale of the property were credited to the joint account, the credit balance of the joint account increased by approximately $22,000.
8. This representation to which Mr Fan deposed was irrelevant to the entry into an agreement for the transfer of Ms Han's interest in the North Parramatta property. She did not depose that she placed any reliance on what she was told about the Parramatta property. Nor was it shown that the position was materially different from the way Mr Fan represented it. To say, as counsel did, that the difference between the net proceeds of sale of the Parramatta property and the amount required to discharge the mortgage over that property represented the profit after taking into account all of the expenses and mortgage repayments is nonsensical. Counsel then said that the profit was a sum of about $21,900 less principal and interest repayments of $17,346 leaving approximately $4,554 less some other unquantified expenses. There was no attempt to show that the other unquantified expenses were not such as to make Mr Fan's statement that "we did not make much money on the unit" perfectly accurate.
9. In any event, the issue is immaterial. Whatever the profit was, it was reflected in the joint account as belonging to the parties equally, notwithstanding that Mr Fan was the 90 per cent beneficial owner of the Parramatta property.
10. Ms Han would have known of the difference between the purchase and sale price for the property. She signed the transfer when the property was purchased and when it was sold. I do not accept her evidence that when she signed the transfer on the sale of the property she did not notice the price for which the property was sold.
11. Ms Han's allegation that Mr Fan represented the net value of the Parramatta property (scil. the North Parramatta property) as an inducement to her to enter into the financial agreement in that he failed to reduce the mortgage liability by the sum of $30,000, being a sum withdrawn from the mortgage account by him and appropriated for his own use and benefit, is apparently an allegation that Mr Fan was personally liable to restore the sum of $30,000 that was drawn down on the AIMS mortgage in 2005. That sum must have been drawn down with Ms Han's consent because her signature would have been needed on the instruction to AIMS for the drawing down of the funds. Mr Fan deposed that he and Ms Han completed an AIMS "client request form" to request the withdrawal of the $30,000. Ms Han did not dispute this. Of that sum Mr Fan borrowed $10,000 but repaid that sum with interest. $10,000 was withdrawn by the parties on 8 March 2005. Mr Fan deposed that that sum was split equally between them in cash. Ms Han said that she was not advised at the time of the withdrawal and said that no explanation was given to her about it. She did not say that she did not receive the $5,000 in cash that Mr Fan said she did receive.
12. In any event, the transaction was not relevant to the alleged agreement for the transfer of Ms Han's interest in the North Parramatta property to Mr Fan. The moneys had been borrowed and both parties were liable to repay the AIMS loan.
13. The value of Mr Fan's business and the extent of his savings and other assets were also irrelevant to the alleged agreement for Mr Fan to acquire Ms Han's interest in the North Parramatta property. She did not say that she made any assumption as to any of the above matters in entering into the alleged agreement. In fact, she denied having entered into the agreement that Mr Fan alleged.
14. There was no evidence of her being coerced or bullied into entering into the alleged agreement. Mr Fan does not come to equity with unclean hands.
15. These defences were a distraction that significantly added to the length of the hearing.
16. The more significant defence, albeit one on which Mr Gruzman made no submissions, was that there is no note or memorandum signed by Ms Han of the alleged agreement. Ms Han pleaded reliance not only on s 54A(1) of the Conveyancing Act, but also s 23C of that Act. Mr Macauley rightly submitted that s 23C has no application in this case (Baloglow v Konstantinidis [2001] NSWCA 451; (2001) 11 BPR 20,721 at [190]).
17. Mr Macauley submitted that Mr Fan's conduct in paying Ms Han $130,000, making all of the mortgage repayments in respect of the loans secured over the North Parramatta property and paying all of the utilities and outgoings on the North Parramatta property were sufficient acts of part-performance. He submitted that those acts were unequivocally, and in their own nature, referable to some contract of the general nature of that alleged (Regent v Millett (1976) 133 CLR 679 at 683).
18. I do not agree. The acts of Mr Fan in making all of the mortgage repayments in respect of the AIMS loan secured over the North Parramatta property and in paying all of the utilities and outgoings on the property can be explained by the fact that he was severally as well as jointly liable for those payments. Mr Fan's agreement to the whole of the $111,088 drawn down on the AIMS loan account being applied in Ms Han's purchase of the Auburn property, and his paying an additional $19,273 into the joint account that was then drawn on by Ms Han in her acquiring the Auburn property (assuming he did so), is also not conduct unequivocally referable to an agreement to acquire Ms Han's interest in the North Parramatta property. To the contrary, the prima facie inference from such conduct is that the parties intended that Mr Fan would have a beneficial interest in the Auburn property commensurate with the extent to which he contributed to the purchase price. The conduct is not unequivocally referable to the agreement he alleged or an agreement of that general kind.
19. Mr Macauley submitted that a less strict approach should be taken to identifying what are sufficient acts of performance of an oral agreement for one joint tenant to transfer his or her interest to the other joint tenant because it would be well nigh impossible to identify acts of joint tenants which would be unequivocally referable to some such agreement. In a typical case of vendor and purchaser it is the purchaser's taking possession of the premises and effecting improvements to it with the vendor's acquiescence that are recognised as sufficient acts of part-performance. In the case of joint tenants such acts can always be said to be referable to their rights as co-owners. Payment by one joint tenant of outgoings or mortgage liabilities for which both joint tenants are liable could always said to be referable to the payer's own liabilities.
20. This may well be so. It is not a reason for departing from the established principles.
21. Moreover, in this case if all of the acts of the parties are taken into account there is conduct that is prima facie inconsistent with the existence of some such agreement as is alleged, namely, Ms Han's occupation from time to time of the North Parramatta property without apparent objection by Mr Fan.
22. For these reasons I do not consider that there were acts of part-performance that would take the case outside the operation of s 54A of the Conveyancing Act. If I had found that the agreement contended for had been made, it would nonetheless not have been enforceable.

Resulting Trust over Auburn Property

1. The initial presumption arising from the fact that the Auburn property was purchased in the name of Ms Han only is that she had full ownership of it and there was no beneficial interest in favour of someone else which was imposed on the legal title (Currie v Hamilton [1984] 1 NSWLR 687 at 690). However, where two persons jointly provide the purchase money for property and the property is put into the name of one of them, then, unless the relationship between the parties gives rise to a presumption of advancement, it is presumed that the beneficial ownership of the property is held in the proportions in which they each contributed the purchase money (Calverley v Green (1984) 155 CLR 242 at 246-247, 258-259). That presumption can be rebutted by evidence of actual intention. Because Mr Fan and Ms Han were divorced when the Auburn property was acquired there is no presumption of advancement.
2. Mr Fan intended that Ms Han should have the full beneficial ownership of the Auburn property. But that was because he believed that he had made an agreement with her, which she would honour, by which he would acquire the full beneficial ownership of the North Parramatta property. His belief was mistaken. He said that he would not have paid the amounts he did to Ms Han unless he had believed that he had a legally binding agreement with her pursuant to which he would receive all her interest in the North Parramatta property. I accept that evidence.
3. Ms Han did not give any evidence about her intentions at the time of the transaction. When asked in cross-examination whether she considered that Mr Fan would be entitled to some of the proceeds of sale of the Auburn property if that property were sold, her response was that she did not understand why the question was being asked, but did not know.
4. Mr Fan's intention that Ms Han should be the full beneficial owner of the Auburn property was conditional upon his being the full beneficial owner of the North Parramatta property. As that condition is not fulfilled his intention has no operative effect and the presumption that the beneficial ownership of the property is held in the proportions in which the parties each contributed the purchase money is not rebutted (Currie v Hamilton at 690). The presumption of a resulting trust is not rebutted by slight circumstances (Shephard v Cartwright [1955] AC 431 at 445; Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365). It has not been rebutted in this case.
5. Mr Fan's percentage beneficial interest in the Auburn property depends upon how much of his funds he contributed to its purchase and what the costs of purchase were. The sum of $111,088 that the parties jointly borrowed from AIMS should be treated as a contribution to the purchase of the Auburn property that was made by them equally (Ingram v Ingram [1941] VLR 95 at 102; Currie v Hamilton at 692; Calverley v Green at 251, 257-258 and 267-268). Mr Fan's share was $55,544.
6. It was not disputed that Mr Fan contributed a further $4,000 from his own funds. He contended that he provided a further $15,273 being moneys that he says he borrowed from Ms Yi. Ms Han says that those moneys were provided by her.
7. The bank statement for the joint St George account describes the money simply as a "cash deposit". A receipt from the Bank of China shows that the sum of $15,272.24 was credited to Ms Han's account with that bank as a result of its purchase of an amount of US$11,500 on 8 March 2006. It is clear that the immediate source of the deposit was the funds deposited by Ms Han as a result of her exchanging US$11,500 with the Bank of China at Parramatta on 8 March 2006. That does not answer the question of where the sum of US$11,500 came from. Ms Han said that this was money that she borrowed from her family, but she gave no other details.
8. Mr Fan said that after he had been told by AIMS that the most that could be borrowed was $111,088 he said to Ms Han that he did not have enough money to make up the difference and she said that she could help him find somebody to lend him the money to make up the $20,000 difference. Mr Fan deposed that in late February or early March 2006 Ms Han said to him that she had found someone willing to lend him the money who knew her family in China and that her name was Yi Cui Fen in Beijing. Mr Fan deposed that Ms Han gave him Ms Yi's telephone number and said that he would have to provide her with something in writing acknowledging the loan. Mr Fan deposed that he telephoned Ms Yi and told her that Ms Han had given her number to him and had told him that she could lend him money. He deposed that Ms Yi said that she knew Ms Han's family and had been told that he would call. His evidence was that he agreed to borrow RMB¥90,000 from Ms Yi and that he agreed that he would repay RMB¥45,000 in the first year and the rest in the second year, and it was agreed that the loan would attract five per cent interest. He deposed that Ms Yi said that she would transfer the money to him the next day but he must send her a document acknowledging the loan after he had received the money, and should also send her a copy of his passport. He agreed to this. He said that in about early March 2006 he received a cheque from Ms Yi in United States dollars, but did not recall whether it was a traveller's cheque, a bank cheque or an international monetary order, but that the cheque was in United States dollars. He said that he attended the St George Bank on or about 8 March 2006 to convert the money into Australian dollars and that the cheque bought AUD$15,273. On 20 March 2006 he drafted a loan acknowledgment addressed to Ms Yi and faxed it to her along with a copy of the front page of his passport. He produced a copy of a fax to Ms Yi dated 20 March 2006. The document he produced dated 20 March 2006 recorded that he was: "… today borrowing a loan of Renminbi ninety thousand Yuans - ¥90,000 - from Cuifen Yi as I am in financial need. From this day onwards, this loan will be repaid off within two years with the repayment of 50% in the first year and the repayment of the rest in the second year at the interest of 5% pa."
9. He deposed that he has made a partial repayment of the loan. He produced a document recording a payment of RMB¥27,000 to Ms Yi that was made on 8 August 2008. He said that he could no longer locate copies of other payment receipts, but that he regularly made payments to Ms Yi through the Bank of China.
10. Mr Fan's evidence does not establish that the moneys that he borrowed from Ms Yi were the source of the deposit of $15,273 made on 8 March 2006. The translation of his acknowledgment of the loan from Ms Yi states that the moneys he borrowed from her were moneys that he borrowed "today", that is, on 20 March 2006, not on 8 March 2006. He deposed that he attended the St George Bank on or about 8 March 2006 to convert a cheque he had received from Ms Yi in US dollars into Australian dollars which were then immediately deposited into the St George Bank joint account. But the currency exchange receipt from the Bank of China in the name of Rui Han shows a credit to her account of US$11,500 and a debit from that account of AUD$15,272.24 indicating that the cheque that was the source of the deposit to the joint account was first deposited to Ms Han's account. This is not consistent with Mr Fan's evidence. I am not satisfied that Mr Fan provided the $15,273 that was used in the purchase of the Auburn property. I conclude that his contribution to the purchase price was $59,544.
11. The purchase price of the Auburn property was $175,000. Stamp duty on that purchase would have been $4,615 and the fee for registering the transfer would have been $92. Mr Fan does not claim to have paid the costs of stamp duty. Ms Han obtained a cheque for US$3,500 that was deposited to her account with the Bank of China on 21 March 2006 from which she was paid $4,726.54 that it can be inferred was the moneys that she raised for the payment of stamp duty.
12. The funds to purchase the property were channelled through the St. George Bank account. A bank cheque was drawn on 12 April 2006 for $156,591.01 that was evidently the sum payable on settlement after adjustment for rates and outgoings. Those adjustments should not affect the calculation of the cost of purchase which was $175,000 plus stamp duty and registration fees that totalled $179,707. As there was no evidence of the quantum of any other expense, it is unnecessary to consider whether any such other expenses such as legal fees should be taken into account (see Sivritas v Sivritas (2008) 23 VR 349 at [126]; but cf Ryan v Dries at [53]).
13. Accordingly I conclude that Mr Fan contributed $59,544 to the acquisition of the Auburn property that cost $179,707 and is beneficially entitled to a 33.1 per cent share of that property.

Contribution for Mortgage Payments

1. Mr Fan seeks contribution in respect of the loan payments he made on both of the AIMS loans between 12 May 2006 and 8 April 2011 when he stopped making payments. Ms Han made no contribution to the mortgage payments over that period, although she was jointly liable with Mr Fan for the payments. The total amounts of principal and interest paid by Mr Fan over that period were $73,243.54 in respect of loan A (the loan in respect of North Parramatta) and $60,967.57 in respect of loan B (the loan taken out to assist in the purchase of Auburn). Mr Fan claims contribution of $67,105.56, being 50 per cent of the moneys he paid. On the basis that Mr Fan's first claim to 100 per cent beneficial ownership of North Parramatta fails, there is no answer to that claim except that Mr Fan is required to account both for 50 per cent of the rents collected on the North Parramatta property from July 2009 net of expenses and is required to allow an occupation fee by reason of his having had the primary benefit of occupation of the premises from 12 May 2006 to July 2009.

Rents and Occupation Fee for North Parramatta Property

1. The best evidence of the rents received by Mr Fan and expenses incurred in the deriving of those rents are his tax returns for the years ended 30 June 2010 and 30 June 2011. Mr Fan claimed deductions for the interest because he considered himself to be the sole beneficial owner of the North Parramatta property. He would have been entitled to deduct the interest on both loans that were taken out for him to obtain that position had he made an enforceable agreement with Ms Han to acquire her interest in that property. Clearly the deductions for interest are to be ignored. There is no reason to dispute the other figures.
2. The property was let from the beginning of July 2009. In the financial year ended 30 June 2010 Mr Fan received gross rents of $15,540. He also received contributions from a number of tenants for water, electricity and gas charges. It appears that the only deductions he claimed were for such expenses that were not recouped from tenants. The total deductions for water charges in that financial year were $850, for electricity $340, and for gas $350, a total of $1,540. In addition he paid council rates for the property in that period of $1,100. The net return was $12,900 for which he is required to account to Ms Han in the sum of $6,450.
3. In the following financial year the gross rents collected were $18,200. The total expenses consisting of water charges, electricity, gas, council rates, insurance and cleaning totalled $2,887 leaving a net return of $15,313 before interest. He must account to Ms Han for 50 per cent of that amount, being $7,656.50. The total of net rents to be accounted for to Ms Han is $14,106.50.
4. The calculation of an occupation fee from 12 May 2006 (being the time from which Mr Fan makes a claim for contribution for the mortgage payments) to 30 June 2009 is more complex. There was no dispute that such an occupation fee should be allowed (Ryan v Dries at [5]-[6] and [71]-[72] and [75]; Callow v Rupchev [2009] NSWCA 148; (2009) 14 BPR 27,533 at [27]-[29]).
5. Mr Macauley submitted that although an occupation fee should be levied on Mr Fan for his occupation between May 2006 and June 2009 of the North Parramatta property, the occupation fee should be 75 per cent of half the interest component of the mortgage repayments made during that time. He submitted that the 75 per cent figure was appropriate taking into account the fact that Ms Han resided in the North Parramatta property for various periods as set out above that were not insubstantial, and that she left behind in that property the majority of her personal possessions. Both loans were secured over the North Parramatta property. The interest paid between May 2006 and June 2009 on the two loans totalled $74,657.12. Mr Macauley submitted that Mr Fan should be required to account for an occupation fee of 75 per cent of 50 per cent of that figure, that is, $27,996.42.
6. Mr Gruzman made no submission as to the appropriateness of the discount to 75 per cent that Mr Macauley contended was appropriate having regard to Ms Han's episodic occupation of the North Parramatta property and of her keeping her personal possessions there. He contended that the occupation fee should be based upon the best evidence of an appropriate rent, being the rent of $350 per week that was obtained from 1 July 2009. However, there is no evidence that this was an appropriate market rent for the whole of the period from May 2006 to June 2009. Nor, if expenses were allowed, does it appear that such a calculation would favour Ms Han. I accept Mr Macauley's submission on this. The result is that there should be set off against Mr Fan's claim for contribution an occupation fee for Mr Fan of $27,996.42 and he is required to account for half of the rental of the property from 2009 to 2011 in the sum of $14,106.50, a total of $42,102.92. This reduces his claim for contribution to $25,002.64.

Cross-Claim for Rents Collected on Auburn Unit

1. By cross-claim filed on 13 November 2014 Ms Han sought an account for the rent collected by Mr Fan on the Auburn property from April 2006. Mr Fan pleaded and submitted that in respect of that claim equity would apply s 14 of the Limitation Act by analogy and that the claim could be maintained only in respect of rents collected by Mr Fan after 13 November 2008. Mr Gruzman for Ms Han made no contrary submission and I proceed on that basis. Mr Fan maintained some records during the period he collected rent. The records he kept are the only evidence as to the rent collected. Ms Han deposed that from March 2013 rents were collected by their son Jack on her behalf. According to the records kept by Mr Fan the rents collected between 13 November 2008 and 27 December 2012 (excluding moneys received as deposits) totalled $48,325. It appears that the records are reasonably complete and that the rent received was between $220 and $250 per week.
2. The arrangement between Mr Fan and Ms Han was that Mr Fan would pay the regular expenses incurred in respect of the letting of the Auburn unit. Between April 2006 and December 2012 these expenses were calculated by Ms Han to be $29,426.69. This was not disputed. For the reasons in para [85], Ms Han's calculation of expenses must be adjusted so as to only include expenditure for the period after 13 November 2008. So adjusted, the expenses incurred by Mr Fan in the letting of the Auburn unit between 13 November 2008 and December 2012 or March 2013 totalled $15,247.85.
3. In addition to the expenses calculated by Ms Han, Mr Macauley for Mr Fan submitted that Mr Fan incurred further expenses relating to the letting of the Auburn unit totalling $843.20. While I accept that Mr Fan incurred these expenses, only the expenditure of $745 in respect of a new range hood was incurred during the relevant period.
4. Mr Fan and Ms Han agreed that they would pay their son Jack while he was at university an allowance of $400 per month. They agreed that Mr Fan would pay Ms Han's share of this allowance out of the collection of rents and would pay his share of the allowance from his own funds (the parties were proceeding on the basis that the Auburn unit wholly belonged to Ms Han). There was a dispute as to how much Mr Fan paid to Jack that could be credited against his obligation to account to Ms Han for the rents he collected from the Auburn unit. He said that he transferred money to Jack periodically, either by bank deposits or transfers or by leaving money in a drawer in Jack's room at the North Parramatta property which Jack collected when he visited the house. Jack denied collecting money left for him in cash in the drawer and I accept that denial. Between 10 August 2006 and 28 December 2012 Jack acknowledged the receipt of $15,200 paid into his account by his father. Of this amount, $12,300 was paid after 13 November 2008. Mr Fan contends that there were a further $14,750 of deposits, recorded on Jack's bank statements as 'card entry' transactions, that were funds that he provided to Jack over the relevant period.
5. While Jack accepted that several of the disputed deposits possibly consisted of money that he had collected from his father, Jack doubted that his father had provided the funds for all of the relevant deposits, particularly the larger deposits, stating the he did not have much, if any, contact with his father at the relevant time. Rather, Jack suggested that the funds for the deposits may have been received from relatives during his trips to China. Mr Macauley for Mr Fan submitted that this explanation as to the source of the disputed funds was implausible as the timing of the deposits did not coincide with when Jack said he had visited China. However, as Jack noted, the timing of the relevant deposits did not coincide with when he visited his father either. It may also be observed from Jack's bank statements that on 10 September 2012 $1,850 was deposited by way of a 'card entry' transaction and, a mere four days later, a further $6,350 was deposited by way of another 'card entry' transaction. That Jack came to have a further $6,350 in cash to deposit within four days of banking the earlier moneys does not sit squarely with Mr Fan's nor Jack's explanation as to the source of the funds. Rather, it appears as though Jack had access to funds that he could draw on in addition to that kept in his bank accounts. Whether these funds originated from Mr Fan, from relatives in China or from some other source is not at all clear from the evidence. The evidence does not allow me to conclude on the balance of probabilities that there were a further $14,750 of deposits from funds Mr Fan provided to Jack over the relevant period that should be credited against his obligation to account to Ms Han.
6. On the basis that Mr Fan deposited $12,300 into Jack's account over the relevant period, this sum was $2,300 over and above the sum that Mr Fan had agreed with Ms Han he would deposit to Jack's account and should be treated as a payment by him out of the rents collected in respect of the Auburn property on behalf of Ms Han.
7. The difference between the rents shown to have been collected by Mr Fan ($48,325) and the expenses associated with the renting out of the Auburn property ($15,992.85) and the moneys paid to Jack on behalf of Ms Han ($2,300) is $30,032.15. Mr Fan is liable to account to Ms Han for 66.9 per cent of these moneys, a sum of $20,091.51.

Conclusion

1. For these reasons I have concluded that: a. Mr Fan is beneficially entitled to half but not the whole of the moneys paid into court following the sale of the North Parramatta property by the mortgagee, and interest earned thereon, and Ms Han is beneficially entitled to half of the moneys paid into court and interest earned thereon; b. after accounting for an occupation fee and for the net rents collected by him on the North Parramatta property, Mr Fan is entitled to contribution from Ms Han for his payments for the mortgage on the North Parramatta property from 12 May 2006 to 8 April 2011 in the sum of $25,002.64; c. Mr Fan is beneficially entitled to a 33.1 per cent share of the Auburn property; d. Mr Fan is required to account to Ms Han for the sum of $20,091.51 in respect of the rents he collected from the Auburn property.
2. Ms Han, through her son Jack, has collected the rents from the Auburn property from about December 2012 or March 2013. Whether she is liable to account to Mr Fan for 33.1 per cent of those rents after expenses is not a question that has been litigated. As Mr Fan is beneficially entitled to a 33.1 per cent share of the Auburn property, he might seek an appointment of trustees for sale, but no such claim has yet been made. Nor did he claim a share of the rents collected on the property, except in closing submissions.
3. I am dismayed that these proceedings were not resolved before hearing. .The difference between Mr Fan's claim for contribution and Ms Han's claim for rents collected from the Auburn property is marginal. It would be surprising if Mr Fan's entitlement to a 33.1 per cent share of the Auburn property and potentially to 33.1 per cent of the net rents collected from December 2012 or March 2013 were worth less than his claim to the balance of the moneys paid into court. The position is probably marginal. Even now, the parties face further costs unless the remaining issues are agreed. But where parties are intransigent, the issues must be decided and costs consequences will follow.
4. I direct counsel for the plaintiff to bring in short minutes of order in accordance with these reasons. I will hear the parties as to what orders or directions should be given in relation to the outstanding matters and I will hear the parties on costs.

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