Jin v Yang

Shepherd v Doolan [2005] NSWSC 42 Muschinski v Dodds (1985) 160 CLR 583 Baumgartner v Baumgartner (1987) 164 CLR 137 West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 Anson v Anson [2004] NSWSC 766 Nelson v Nelson (1995) 184 CLR 538 Farah Constructions Pty Limited v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89; 81 ALJR 1107 CASES CITED : Assets Co Ltd v Mere Roihi [1905] AC 176 Butler v Fairclough [1917] HCA 9; (1917) 23 CLR 78 Latec Investments v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265 Bendigo Bank Ltd v Williams [2000] FCA 482; (2000) 98 FCR 377; (2000) 173 ALR 175 The Presbyterian Church (New South Wales) Property Trust v Scots Church Development Ltd [2007] NSWSC 676; (2007) 64 ACSR 31 Heggies Bulkhaul Ltd v Global Minerals Australia Pty Limited [2003] NSWSC 851; (2003) 59 NSWLR 312 Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 In re Telescriptor Syndicate Ltd [1903] 2 Ch 174 Agip (Africa) Ltd v Jackson [1990] Ch 265

Yong Tang Jin PARTIES : v Wei Yang & Anor

COUNSEL : Plaintiff: S A Wells 1st Defendant: C Wilson & R Kako

SOLICITORS : Plaintiff: Carneys Lawyers 1st Defendant: Ryan & Bosscher Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1270/07 Yong Tang Jin v Wei Yang & Anor JUDGMENT 1 HIS HONOUR: The plaintiff, Mr Jin, claims a beneficial interest in a home unit in Brown Street, Ashfield. The first defendant, Ms Yang, purchased the unit on or about 1 July 2005 for $372,000. She transferred the property to her son, Mr Keliang Yang, the second defendant, on or about 22 June 2006 for the same price. Mr Keliang Yang is the registered proprietor of the property. 2 Mr Jin claims to have contributed $190,000 to Ms Yang's purchase and to the reduction by her of a mortgage on the property. He contends that Mr Keliang Yang did not acquire an indefeasible title because the transfer to him was made by Ms Yang and Mr Keliang Yang with the joint intention of cheating him out of his interest in the property. Orders for substituted service were made against Mr Keliang Yang. He did not appear. 3 Except for a sum of $4,878 which Ms Yang denies receiving, there is no issue as to the amounts paid by Mr Jin to Ms Yang. The question is whether the moneys were paid as a gift or with the intention that Mr Jin acquire a proprietary interest in the Ashfield unit. If Mr Jin acquired a beneficial interest in the unit, the second major issue is whether the transfer of the unit to Ms Yang's son was fraudulent within the meaning of s 42 of the Real Property Act (1900) NSW. 4 Mr Jin and Ms Yang first met in December 2004. They are both of Chinese background. At that time, Mr Jin was 78. Ms Yang did not give evidence of her age, but her own counsel said without objection that she was born in 1954 so that she would then have been 50. Both parties were divorced. Mr Jin has two adult children of an earlier marriage and Ms Yang has an adult son, the second defendant. Mr Jin and Ms Yang met through dating advertisements placed in Chinese newspapers. 5 From 9 April 2005, they took a holiday together to Alice Springs. After this trip they decided to live together. At that time Mr Jin was living with his daughter in Carlingford and Ms Yang was living at Bexley. Mr Jin had applied for a residence through the Department of Housing, but had not at that time been provided with subsidised housing. He received benefits and allowances through Centrelink of $518.77 per fortnight and had declared foreign income from a pension he receives from a Chinese government instrumentality of $14.76 per fortnight. 6 According to Mr Jin, Ms Yang proposed that they buy a unit and live together and they agreed to share the contributions and future living costs on a 50/50 basis. According to Mr Jin, he said to Ms Yang that he was doubtful whether he could borrow enough money from his children to contribute half the cost of a unit. He proposed to her that they rent instead. According to Mr Jin, Ms Yang said that she wanted the stability of owning a home. Mr Jin said that his son offered to buy a property and rent it to them both, but Ms Yang rejected this proposal and said she did not want his children involved in their relationship. 7 Ms Yang's version of these discussions was completely different. She said that Mr Jin told her that he was uncomfortable living with his daughter and wished to buy a unit for Ms Yang because he loved her. He told her he expected to receive $200,000 as repayment of a loan to a former student. According to Ms Yang, Mr Jin told her: " I just love you and like to be close to you and I can meet you when I miss you even though I am living elsewhere. I cannot take my money with me when I die so I must spend it any way I like. You are my love and my life. I want to spend money on you. I will give you the money. I have $200,000 available which is currently close to maturity as I lent it to a former student of mine who will return the money shortly … I will give it to you as a gift for buying this property. "

8 Ms Yang says that she told Mr Jin that if he gave her money, she would like his name to appear on the paperwork, but he refused, saying, "I do not want my name to be on the documents. I love you. I am just giving money to you as a gift." Later she says that Mr Jin promised to pay everything for her and described various sources of overseas income. 9 The parties identified the unit in Brown Street, Ashfield as a suitable shared residence. An entry in Mr Jin's diary on 18 May 2005 records: " Yang rang me and pushed me to borrow money, otherwise she will buy the unit on her own ." or, depending on the translation: " Phone call from Yang urging money gathering, otherwise Yang would purchase on her own. "

10 On 23 May 2005, Ms Yang paid a holding deposit of $1,000 for the purchase of the unit. On 25 May 2005, Mr Jin gave the agent a bank cheque for $20,000 and Ms Yang drew a cheque for $16,200, both cheques payable to the vendor. On 26 May, Ms Yang authorised the agent to release the $1,000 payment to the vendor. Her signature on this direction was witnessed by her son. 11 The immediate source of funds for Mr Jin's payment was a deposit of $150,000 to his bank account on 20 May 2005. This was drawn down from a home loan account of his daughter and her then husband. There is a subsidiary issue as to whether Mr Jin's daughter provided the funds or, as a note from Mr Jin states, this was a repayment to him. 12 On 27 May 2005, Mr Jin and Ms Yang attended at the agent's office. The agent was a Ms Shannon Chen of Sydney Advance Realty Pty Limited. In her affidavit Ms Yang deposed: "... on 27 May 2005 the plaintiff and I went together to Sydney Advance Realty to sign the contracts. I was presented with a draft contract of Sydney Advance Realty Pty Limited in Sussex Street Sydney on 27 May 2005 by Shannon Chen. When I saw the contract I noticed that it only had my name typed in the space for purchaser and the plaintiff's name was not on the contract. I wrote the plaintiff's name on the draft contract. I then saw the plaintiff sign the contract with his name written on it. I then signed the contract myself. The plaintiff and I signed the document in the presence of Shannon Chen. I observed Shannon Chen write the plaintiff's name in her own handwriting on the copy of the contract that was to be signed by the vendor. "

13 Ms Yang said that the reason she added Mr Jin's name to the contract was that she did it out of her "good heart" in accordance with Chinese culture and in recognition of how good Mr Jin was to her in giving money to her, even though she was purchasing the property for herself. She also agreed in cross-examination that she put his name on the contract to recognise his interest in the property. 14 Ms Yang's signature was witnessed by her son. The significance of this, according to the plaintiff's counsel, Mr Wells, is that it shows that Mr Keliang Yang was aware that Mr Jin was to have an equal interest in the property. In cross-examination, Ms Yang changed her evidence as to the signing of the contract. She said that she had received the contract a couple of days before 27 May from the agent. At that time only she was named as a purchaser. She said that she signed it and her son witnessed her signature. She said that she brought the signed contract to the agent's office on 27 May, at which point Mr Jin also signed it. Mr Jin's signature was not witnessed. 15 This would be a plausible scenario completely inconsistent with the evidence in her affidavit sworn in May 2007, that is, a year closer to the event than when she gave evidence. I do not accept that her affidavit contained errors because of some failure on the part of her solicitor, as she contended in cross-examination. Nor do I accept that she was confused when she swore her affidavit or that her memory of events is better now than when she swore the affidavit. Accordingly, I do not accept her evidence in cross-examination on this topic. 16 On 3 June 2005, both parties signed a letter addressed to the agent asking that Mr Jin's name be deleted from the contract exchanged on 27 May. On 7 June 2005 the vendor agreed with that request and the purchase proceeded in the name of Ms Yang only. According to Mr Jin, the reason for this change was that Ms Yang told him: " Putting your name in the property would jeopardise your Centrelink payment and your Department of Housing. How about we remove your name from the property? You lend money to me. The interest is your rent. "

17 Mr Jin says that he responded by saying that it would be hard to convince his children to lend him money and asked what security there would be. According to him, Ms Yang agreed to write a statement recognising his interest in the property which would be notarised by a solicitor and she would provide a copy of all the receipts after they bought the unit. 18 Again, Ms Yang's version of events is different. She deposed that Mr Jin said: " I am not comfortable with my name on the Contract. I want my name removed from the Contract. Go and tell the agent. I love you. I just want you to have the property. Have you ever heard of 'Jin wu cang jiao'? It means if a man loves a woman he would build a house with gold for her to live in. I have $200,000 dollars spare and have to spend it, please let me do it for you. I am your man. Like Dr Zhenning Yang to Miss Fan Weng, like Mr Rupert Murdoch to Wendy Deng. If my Beijing property is sold I would pay all of the money for you. "

19 Ms Yang says that she told Mr Jin she would agree if he had made up his mind. 20 As at 3 June 2005 Mr Jin had not been advised that his application for subsidised housing through the Department of Housing had been successful. However, his application was pending and he was in receipt of social security payments. His application was successful very shortly thereafter. On 10 June 2005, he completed a form called an Application for Rental Subsidy provided by the Department of Housing. He did so in conjunction with taking possession of a unit provided by the department in Ennis Street, Milsons Point. He became entitled to possession of the unit under a tenancy agreement with the department. He occupied the unit briefly. He deposed that on 8 June 2005, he moved into the unit with his grandson and on 18 June 2005 he moved into the unit briefly with Ms Yang. At that time Mr Jin's grandson was not in occupation. 21 The application for rental subsidy required Mr Jin to state whether he owned or part-owned any property, including the unit. He answered that question "No". The tenancy agreement provided that the tenant was required to occupy the premises personally at all times. The lease could be terminated for breach of that obligation. However, the tenant could assign or sublet with the department's permission. 22 Notwithstanding the entry into the tenancy agreement for the Milsons Point unit, the parties proceeded with the purchase of the Ashfield property. On 21 June 2005, Mr Jin drew a cheque for $12,230 in payment of stamp duty. Ms Yang says that she paid the stamp duty using the cheque Mr Jin provided her as a gift. 23 At some time on or after 21 June 2005, Ms Yang signed a Real Property Act transfer of the land as transferee. Again, her signature was witnessed by her son, who gave his address as 5 Farncomb Place, Gowrie in the Australian Capital Territory. Ms Yang had obtained approval of a loan of $100,000 through a mortgage originator called AIMS Home Loans. 24 On 29 June 2005, Mr Jin deposited $117,770 with the vendor of the Ashfield property (Meriton Property Finance Pty Limited). Settlement of the purchase of the Ashfield unit took place on 1 July 2005. The balance paid on settlement was $334,892.40. Of that amount, Ms Yang paid $217,122 of which $100,000 was borrowed from Perpetual Trustee Co Ltd acting for AIMS Home Loans. Of the balance of $117,122, Ms Yang borrowed $97,181.47 from a friend, Mr John Lee. The balance of $19,940.93 was paid from her savings. 25 The parties moved into the Ashfield unit on 2 or 3 July 2005. Although he denied it, Mr Jin thereafter advertised the Milsons Point property through the Chinese newspapers and let that property on the open market. 26 On 6 September 2005, the parties had a discussion about the cost of purchase of the Ashfield unit. Ms Yang deposed that: " During that conversation I showed the plaintiff certain documents and together we calculated the various components of the purchase price, which was at that time agreed to be approximately $388,000. Annexed hereto and marked with the letter 'G' is a true copy of a document in my handwriting which I showed the plaintiff on 6 September 2005. Endorsed on the document are words in Mandarin which translates [sic] to ' Mr Jin gave Wei Yang $150,000'." 27 The document Ms Yang prepared contained some characters in Mandarin, but they did not say what she asserted them to say in the last sentence quoted above. The document listed 13 items going to the cost of purchase of the property including the price, stamp duty, search/settlement fees, fees for strata certificates, rates and other certificates, a fee for a person to attend on settlement, the agent's fee on obtaining the loan, a legal fee (which I infer was for fees of the mortgagee as Ms Yang acted for herself on the conveyance) and the pest inspection report. She calculated the total cost as being $388,139.19, which contains a small arithmetical error of no significance. On the document she wrote in English, "Mr Jin gave $150,000 to the day 30/6/05." 28 According to Ms Yang, there was then a conversation to the following effect: " Yong Tang Jin: 'What a shame. It appears that I have paid less than you for the property. I shall give you some more money as soon as I receive repayment from the people that owe me money.' Myself: 'You don't have to.'" 29 The inference from the fact that Ms Yang made a detailed calculation of the total cost of the purchase, discussed it with Mr Jin and stated on the document that Mr Jin had given $150,000 as at 30 June 2005 is that there was a connection between his payments and the total cost of purchase. On Ms Yang's case, the payments made by Mr Jin were an absolute gift to her. If that were so there is no apparent reason why she should have prepared a document and discussed it with Mr Jin, let alone why she should have noted that he had paid (or given, as is stated on the document) $150,000 as at 30 June 2005. 30 The events which followed also provide objective support for Mr Jin's contention that on that day Ms Yang said to him that, "You need to put in more money to pay up for your 50% for the unit" (a conversation which she denies). 31 On 26 September 2005, Mr Jin gave Ms Yang a cheque for $5,122 which she deposited in her bank account. On 27 September, he gave her cash of $4,878. Ms Yang denies receiving any such sum. However, the payment is corroborated by a contemporaneous diary note of Mr Jin's. Moreover, on 27 September 2005, Ms Yang deposited $4,900 into her bank account. I conclude that Mr Jin did pay $4,878 as he deposed. The two payments total $10,000. On 4 October 2005, Ms Yang paid $15,000 to reduce the principal on her mortgage. 32 On 9 January 2006, Mr Jin gave Ms Yang a cheque for $30,000 drawn by his daughter and made out to himself. He accompanied Ms Yang to her bank where she deposited the cheque. Ms Yang deposed that Mr Jin told her: " Someone has repaid me a loan. I have $30,000 which I want to give to you. I am accustomed to give my former wives money to do whatever they wanted [sic] with. This money is for you to do whatever you want to [sic] with. I want to give this money to you. My daughter helps me from time to time when I receive monies so that I don't have to disclose the monies to Centrelink. " 33 Mr Jin denied this and said that the conversation was to the effect that Ms Yang said he still owed her $34,000 towards half of the cost of the unit. He deposed to saying that this was too much because he had bought the furniture for the unit and her nephew was staying there as well. He also claims that he said that Ms Yang had not shown him the receipts. He says he borrowed the $30,000 from his daughter when he gave the cheque to Ms Yang. 34 Mr Jin purchased various items of furniture for the Ashfield unit. Although Ms Yang denied it, I also accept that he made some payments towards strata levies and other such expenses. For example, his diary entry for 3 October 2005 records his paying $474 to Ms Yang for the strata levy for three months from October to December. He also later notes having paid a water bill and a gas bill. 35 Relations between the parties soured from about May 2006 when Ms Yang discovered and read Mr Jin's diary. She took a photocopy of most of it. It records Mr Jin's continuing a sexual relationship with another woman whom he had been seeing prior to meeting Ms Yang. 36 On 29 May 2006, Ms Yang and her son signed a contract for her to sell the Ashfield unit to her son for $372,000. That sale was completed on 22 June 2006. Mr Keliang Yang became registered as the proprietor of the land on 1 July 2006. This transfer was kept secret from Mr Jin. Ms Yang said in evidence that it was none of his business. 37 In August 2006, as I infer, Mr Jin prepared another schedule of the costs for the purchase of the unit by copying Ms Yang's figures from the earlier document of 6 September. Mr Jin said that he prepared this document on 6 September 2005 but it contains a reference to a claim for 58 weeks' rent in respect of Ms Yang's nephew. Mr Jin did not say that those words were added on a later occasion. Those words show that the document was prepared much later than September 2005. As I have said, I infer it was prepared in August 2006. 38 Ms Yang added words to the bottom of the page in Mandarin which, when translated, include a reference to, "Owe every three months $1,177". It is clear from the document $1,177 was a calculation of half of bills for electricity, gas, management fees, telephone and water for three months from July to September. Ms Yang also wrote, "In total owe $5,858 plus telephone connection of $30 plus $10" (or the figure might be $100, as it has been cut off on the photocopy). 39 Ms Yang was asked about these words, but did not give a responsive or intelligible answer. Later she addressed other parts of the document written by Mr Jin. In my view, in writing those words she was then asserting to Mr Jin at least that if he were to make a claim for half of rent attributable to her nephew's occupation, he should be surcharged with half of the expenses of the property. There is no reason she should have advanced that contention if, as she says, the payments made by Mr Jin were an absolute gift to her and he had no interest at all in the property. 40 Mr Wilson, who appeared with Ms Kako for Ms Yang, submitted that the question of whether the payments made by Mr Jin were a gift to Ms Yang turned on the credibility of each witness. Certainly their credibility is highly material. However, I do not accept either as a credible witness. Mr Jin gave his evidence through an interpreter. Ms Yang did not give evidence through an interpreter, save for occasional questions, but English is not her first language. I make full allowance for the language difficulties under which both laboured. Notwithstanding that, the evidence of both Mr Jin and Ms Yang was frequently unresponsive and evasive. Both took refuge in professing not to understand questions when, in my view, they were considering where the cross-examiner might be seeking to lead them. 41 Mr Jin has been shown to have made false statements in his affidavits. For example, he denied placing an advertisement for the Milsons Point unit when it was clearly proved that he did so, as he was eventually forced to concede. He appears to have understated substantially his income from his Chinese pension to Centrelink. He deposed that he had ended his relationship with Ms Fu in late 2004 or early 2005, when his diary shows that he had not. Although there was some ambiguity in the words used in his diary as to whether he was describing a continuing sexual relationship with Ms Fu, the context shows that he was. At some time he made "corrections" to an entry in his diary to describe his activity with Ms Fu. His evidence as to his sources of income was confusing and I attribute that, at least in part, to his not being frank in his answers. 42 Ms Yang was also not a credible witness. Apart from the direct contradictions between her affidavit and her oral evidence in relation to her son witnessing her signature to the contract of 27 May (referred to earlier) and her untruthful statement as to what was written in Mandarin characters on the document prepared on 6 September 2005, she gave other evidence I refer to later in these reasons concerning the disposition of sale proceeds of the Ashfield unit and the Canberra property which stretch credulity. 43 Mr Wilson submitted that if I found that neither party was credible then the plaintiff would fail because the plaintiff needed to show that the parties had a common intention that he acquire a beneficial interest in the Ashfield property. Mr Wilson correctly noted that the plaintiff had not alleged that there was a resulting trust and the case was not opened or conducted on that basis. However, I do not accept his submission as to the consequence of finding that neither party is a credible witness. The question is, rather, whether the objective circumstances indicate that the payments were a gift to Ms Yang, or a loan, or were made with a view to both parties sharing the ownership of the property. 44 I venture to repeat what I said in Shepherd v Doolan [2005] NSWSC 42 in relation to "common intention" constructive trusts (at [31] and [34]-[42]): " 31 One class of case where equity will intervene to prevent the unconscientious denial by the legal owner of another party's rights, is where the parties agreed, or it was their common intention, that the claimant should have an interest in the property owned by the other, and the claimant acted to his or her detriment on the basis of that agreement or common intention (e.g Grant v Edwards [1986] Ch 638; Green v Green (1989) 17 NSWLR 343; Maharaj v Chand [1986] AC 898 at 907). ... 34 Where a constructive trust is imposed, based upon the parties' common intention as to the ownership of property upon which the claimant has acted to his or her detriment, the inquiry is as to the actual intention of the parties. The law does not impute a presumed intention to the parties based upon what the Court considers fair and reasonable persons in the position of the parties would have intended had they turned their minds to the issue (Pettitt v Pettitt [1970] AC 777 at 804, 810, 816-817; Gissing v Gissing [1971] AC 886 at 900, 902, 905-909; Allen v Snyder [1977] 2 NSWLR 685 at 690, 698, 701).

35 It is unnecessary to enter the debate as to whether a trust based on the parties' common intention is properly characterised as a constructive trust, or whether it should be characterised as an express trust which is enforceable notwithstanding the want of writing as it would be an equitable fraud for the legal owner to rely on the absence of writing to deny the beneficiary's interest ( Allen v Snyder at 692-3; 699). In later cases, eg Grant v Edwards [1989] Ch 638; Maharaj v Chand [1986] AC 898 at 907; Green v Green (1989) 17 NSWLR 343; Brandling v Weir [2003] NSWSC 723; Parianos v Melluish (2003) 30 Fam LR 524, this class of trust has been classified as a constructive trust, even though it is based on the parties' actual intentions, rather than imposed despite their intentions.

36 The intention to be established need not be that the parties have a specific share of the property. It is sufficient that they intend that the claimant should have a beneficial interest or ' some form of proprietary interest' ( Green v Green at 355, 356; Grant v Edwards at 654; Parianos v Melluish at [31], [39]).

37 The intention may be established in various ways. There may be an agreement between the parties as to how the property should be held. There may be express statements as to their intention. Their intention may be inferred from their conduct. The question of what acts demonstrate an agreement or common intention referable to the beneficial enjoyment of the property is one of evidence, not law ( Allen v Snyder at 691; Green v Green at 355). A common intention that a party have a beneficial interest in a property owned by another will not be inferred merely from their joint occupation of property, nor the carrying out of household duties, nor the bringing up of children on the property, nor the doing of repairs, renovations, maintenance, decoration or improvement, nor the provision of furniture ( Pettitt v Pettitt [1970] AC 777 at 805-6, 811, 818, 826; Gissing v Gissing [1971] AC 886 at 900, 910; Burns v Burns [1984] Ch 317 at 326, 328, 342).

38 The intention may be inferred from financial contributions, direct or indirect, to the acquisition of property, including the paying off of mortgages, or the payment of expenses which free up funds for that purpose ( Burns v Burns at 328-329; Gissing v Gissing at 900, 902-3, 906-907; Grant v Edwards at 647, 648-9, 653-4, 655; Green v Green at 355). This is a wider enquiry than whether a contribution was made to the purchase money such as to give rise to a presumption of a resulting trust. Whilst both enquiries address the inferences to be drawn as to the parties' actual intentions, a contribution to the purchase price creates a presumption of beneficial ownership in the proportion which the amount contributed bears to the price. For a 'common intention' constructive trust, a contribution, direct or indirect, to the costs of acquisition of the property is a matter from which an intention that the claimant have a beneficial interest in the property might be inferred. There is a difference between a fact from which an inference can be drawn, and a fact from which a rebuttable presumption arises. The significance of the difference will depend upon the strength of the presumption. In the case of the 'common intention' constructive trust, there is no presumption that the beneficial interest is in proportion with the contribution to the purchase price.

39 Other evidence from which conclusions may be drawn about the intentions of the parties include declarations of the parties before or at the time of the transaction or so close in time after the transaction as to constitute a part of it. Subsequent declarations of intention are only admissible against interest ( Calverley v Green (1984) 155 CLR 242 at 262 and 269; Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365; Bryson v Bryant (1992) 29 NSWLR 188 at 215).

40 The plaintiff must also show that she acted to her detriment in a way referable to the agreement or intention that she have an interest in the property ( Austin v Keele (1987) 10 NSWLR 283 at 291; Grant v Edwards at 648; Carruthers v Manning [2001] NSWSC 1130 at [124]). Conduct which is insufficient to establish a common intention as to the ownership of the property may be sufficient to constitute relevant actions to the plaintiff's detriment to establish a trust if the common intention is established otherwise. Conduct may be both the evidence from which an intention that the plaintiff have a beneficial interest can be inferred and the act of detrimental reliance ( Green v Green at 355; Grant v Edwards at 647, 652, 655). In Grant v Edwards Nourse LJ said (at 648) that to qualify as acting on the common intention, the conduct must be such that the plaintiff could not reasonably have been expected to embark upon it unless she were to have an interest in the property. In Green v Green (at 357) Gleeson CJ, with whom Priestley JA agreed, approved a less stringent test taken from the judgment of Sir Nicholas Browne-Wilkinson VC in Grant v Edwards (at 657) that: ' ... once it has been shown that there was a common intention that the claimant should have an interest in the house, any act done by her to her detriment relating to the joint lives of the parties is, in my judgment, sufficient detriment to qualify. The acts do not have to be inherently referable to the house. … The holding out to the claimant that she had a beneficial interest in the house is an act of such a nature as to be part of the inducement to her to do the acts relied on. Accordingly in the absence of evidence to the contrary, the right inference is that the claimant acted in reliance on such holding out and the burden lies on the legal owner to show that she did not do so ...'

41 The quantum of the claimant's beneficial interest will be that which the parties agreed upon or intended, if that can be established. In Green v Green and in Parianos v Melluish , it was held that although the parties did not turn their minds to the particular form of title which they intended the claimant to have, the conclusion which best gave effect to the intentions of the parties was that they were beneficially entitled to the property as joint tenants, so that upon the death of the respondent, the claimant became the absolute beneficial owner by survivorship.

42 If the evidence does not permit of a finding as to the precise size, nature and extent of the beneficial interest the parties intended the claimant to have, one starts with the maxim that equality is equity ( Green v Green at 355). But that standard can and should be departed from where the parties make disproportionate contributions to the acquisition of the property. In Baumgartner v Baumgartner , Mason CJ, Wilson and Deane JJ said (at 149-150): 'Equity favours equality and, in circumstances where the parties have lived together for years and have pooled their resources and their efforts to create a joint home, there is much to be said for the view that they should share the beneficial ownership equally as tenants-in-common, subject to adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind.' In Gissing v Gissing , Lord Pearson, who considered the issue was whether there was a resulting trust in favour of the wife by virtue of her contributions towards the purchase of the house, said (at 903): 'I think also that the decision of cases of this kind has been made more difficult by excessive application of the maxim "equality is equity." No doubt it is reasonable to apply the maxim in a case where there have been very substantial contributions (otherwise than by way of advancement) by one spouse to the purchase of property in the name of the other spouse but the proportion borne by the contributions to the total price or cost is difficult to fix. But if it is plain that the contributing spouse has contributed about one-quarter, I do not think it is helpful or right for the court to feel obliged to award either one-half or nothing.'" 45 As noted at [37] and [38] in Shepherd v Doolan, the parties' common intention, which must be an actual and not a presumed intention, may be inferred from their conduct, including by the making of direct or indirect contributions to the acquisition of the property or the paying off of a mortgage. 46 One of the grounds on which Mr Jin disputed that he had made a gift to Ms Yang was that, according to him, the money was not his to give. He said that he got it by borrowing from his daughter and that he, or his estate, would have to be able to repay her eventually. Mr Wilson pointed out that Mr Jin's agreement to remove his name from the contract was inconsistent with his thinking he had any duty to provide security to his daughter so that she could recover any such alleged loan. 47 I am not satisfied that Mr Jin did borrow funds from his daughter. As I have said, his evidence as to his financial affairs was confusing and I do not consider that he gave frank evidence about it. He was in receipt of funds from various sources. Although it does not appear that he got money in his own name, he had access to funds whose beneficial ownership was quite unclear. In a note prepared sometime after June 2005, he recorded having deposited $75,237 into his daughter's account on 31 July 2003. On 29 June 2004, there is an unexplained deposit of $41,180.57 to his daughter's bank account and a further unexplained credit to her and her former husband in the amount of $79,800 on 20 May 2005. In his note earlier referred to, Mr Jin wrote that, "Jin Zhao (his daughter) returned money by cheque, $150,000." 48 However, my rejection of this part of Mr Jin's evidence does not mean that the payments were a gift. I do not believe Ms Yang's evidence as to her conversations with Mr Jin in which he offered the money as a gift. Mr Wilson submitted that it was the kind of offer which was entirely understandable in the context of an older man seeking the companionship and support of a younger woman. That may be, but nonetheless I do not believe Ms Yang's evidence on this topic. Moreover, Mr Jin's diary note of 18 May 2005, whatever be the correct translation, is inconsistent with her case. That note was not challenged and the diary as a whole, apart from an entry which Mr Jin changed, appears authentic. According to that note Ms Yang proposed to proceed to purchase the unit alone unless Mr Jin could obtain his funds. That suggests that if Mr Jin could obtain his funds then the purchase would not proceed by Ms Yang alone. 49 Ms Yang says that when she put Mr Jin's name on the contract she intended to recognise his interest even though he had professed to make a gift, but she says that position changed when Mr Jin insisted on having his name removed. That would depend on the reason for the removal of Mr Jin's name from the contract. I am satisfied that the reason for his name being removed was so that he would not be recorded in a public register as owning property. Even though he may not have known - and I think he probably did not know - exactly whether or how his social security payments or his chance of obtaining public housing would be affected if he were publicly recorded as owning real property, I think it likely that he was concerned that such a public disclosure could affect him adversely. This is not at all to his credit, but it is consistent with his apparent sheltering of money in other names and in my view is the true reason for his name being removed from the contract. 50 For the reasons I have previously given, the documents prepared by Ms Yang on or about 6 September 2005 and her writing on the document prepared by Mr Jin in, I infer, August 2006 are also corroborative of the parties having the common intention of sharing the beneficial ownership of the property in equal shares. Moreover, the actual payments made by the plaintiff approximate 50 percent of the purchase cost, that is, $150,000 and a further $40,000 applied in reduction of the principal of the mortgage. As the cases referred to at [38] of my reasons in Shepherd v Doolan show, the common intention of the parties that they share beneficial ownership of property can be inferred from the making of such payments. 51 I also consider that the secrecy surrounding the sale by Ms Yang of the Ashfield unit to her son provides some further support for this conclusion. Had she not been concerned that Mr Jin would assert a claim to part of the unit and been concerned that there may have been some substance to that claim, she could have been expected to have told Mr Jin that she proposed to sell, and later that she had sold, the unit in which they were both living and to the acquisition of which he had contributed. 52 I do not consider that the payments made by Mr Jin were made as loans even though, according to him, Ms Yang proposed that he lend money to her. Mr Jin did not say that he agreed to make a loan and I think it probable that had the parties intended a loan, that such a loan would have been documented. There was no agreement for the payment of interest and, on any version of the facts, there was no discussion as to when any loan might be repayable. Moreover, Mr Jin's subsequent conduct in equalising approximately the parties' contributions shows that what was intended was that both parties make equal contributions to the purchase, not that the payments made by Mr Jin be by way of loan. 53 Mr Jin acted to his detriment in a way referable to the parties' agreement or common intention by making contributions. Moreover, for the reasons given in the authorities I cited in Shepherd v Doolan at [40], other acts by Mr Jin such as moving into the Ashfield unit, purchasing furniture and contributing to the payment of expenses would also be sufficient acts of detrimental reliance. 54 The quantum of Mr Jin's beneficial interest is that which the parties intended, namely, 50 percent. The variance between his payment of $190,000 and total purchase costs of $388,434 is not a basis for departing from the proportion which it can be inferred was the proportion the parties intended. Even if there were no such precise intention, the slight variance would not warrant a departure from the maxim equity is equality. That is particularly so as there are unresolved questions as to the extent to which Mr Jin purchased furniture and made other contributions to expenses. 55 I therefore conclude that from the time the unit was purchased, Ms Yang held the property on trust for herself and Mr Jin in equal shares. It is unnecessary to consider whether they held it beneficially as joint tenants or as tenants in common. 56 It is unnecessary to decide the plaintiff's claim that a trust arose on the principles in Muschinski v Dodds (1985) 160 CLR 583 at 619-620 and Baumgartner v Baumgartner (1987) 164 CLR 137 at 147-148. The constructive trust, on those principles, arises on a separate basis from a "common intention" constructive trust. A constructive trust on those principles is imposed notwithstanding that the parties have no intention as to how their beneficial ownership of property will be held on their relationship or joint endeavour coming to an end (see generally West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [59], [62] and [74]). Moreover, such a trust arises at the earliest when the relationship or joint endeavour comes to a premature end (West v Mead at [84], Anson v Anson [2004] NSWSC 766 at [34]-[37]). Moreover, such a trust arises only where the relationship has broken down without an attributable fault. The question would arise whether Mr Jin's infidelity was "an attributable fault" within the meaning of this principle. Certainly it was Ms Yang's discovery of his infidelity which brought the relationship to an end. I find it unnecessary to decide this question and I prefer to express no view on it. 57 No defence of unclean hands was pleaded to Mr Jin's claim to enforce a constructive trust. Nor was it submitted that Mr Jin should be refused relief on the ground of unclean hands. It was not suggested that the transaction was rendered illegal by any statute. Mr Jin asserted that the Department of Housing was aware that he was not living in the Milsons Point property and had let it to other tenants. He said that Centrelink had been made aware of Ms Yang's claims and had investigated the matter and raised no issues about it. 58 I do not consider that his right to equitable relief should be made conditional on his taking any particular step in relation to the Department of Housing or Centrelink such as was ordered in Nelson v Nelson (1995) 184 CLR 538. The contrary was not contended. Nonetheless, when my published reasons are available I will direct that a copy be provided to the Department of Housing and to Centrelink. 59 I turn to the transfer of the property from Ms Yang to Mr Keliang Yang. As the registered proprietor, Mr Keliang Yang holds his estate in the Ashfield unit free from Mr Jin's claims unless he acted fraudulently in acquiring his registered title. There were no relevant dealings which would give rise to a "personal equity" which Mr Jin could enforce against him. It would be insufficient for the plaintiff to show that Mr Keliang Yang acquired trust property with notice that the transfer was in breach of trust (Farah Constructions Pty Limited v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89; 81 ALJR 1107 at [192]-[197]). 60 Subsections 42(1) and 43(1) of the Real Property Act relevantly provide: " 42 Estate of registered proprietor paramount

(1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except: ...

43 Purchaser from registered proprietor not to be affected by notice

(1) Except in the case of fraud no person contracting or dealing with or taking or proposing to take a transfer from the registered proprietor of any registered estate or interest shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such registered owner or any previous registered owner of the estate or interest in question is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice direct or constructive of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud. " 61 Fraud, for the purposes of s 42, requires dishonesty or moral turpitude and not what is called constructive or equitable fraud where there is no dishonesty or intention to cheat (Assets Co Ltd v Mere Roihi [1905] AC 176; Butler v Fairclough [1917] HCA 9; (1917) 23 CLR 78; Latec Investments v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265; Bendigo Bank Ltd v Williams [2000] FCA 482; (2000) 98 FCR 377; (2000) 173 ALR 175). 62 In The Presbyterian Church (New South Wales) Property Trust v Scots Church Development Ltd [2007] NSWSC 676; (2007) 64 ACSR 31, Young CJ in Eq, after referring to Heggies Bulkhaul Ltd v Global Minerals Australia Pty Limited [2003] NSWSC 851; (2003) 59 NSWLR 312 at [103] and numerous other cases, said (at [112]): " Despite the fact that the cases I have recently digested may not all be entirely consistent one with another, it seems to me, with respect, that Austin J was correct in Heggies at 339 (quoted earlier) when he said that the additional factor to be superadded to notice to constitute fraud (or alternatively to create a personal equity) was ' some form of acknowledgment of the unregistered interest, or an agreement or undertaking to act in accordance with it, from which the registered proprietor later resiles.'" 63 Mr Wilson did not submit that this was a complete statement of what is required to be proved to establish fraud for the purposes of s 42 and I do not understand his Honour to have so decided. Many cases of clear fraud will involve no acknowledgement of an unregistered interest or undertaking to act in accordance with it. In Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101, Lord Buckmaster, in delivering the judgment of the Privy Council, said (at 106-107): " If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent … It is not, however, necessary or wise to give abstract illustrations of what may constitute fraud in hypothetical conditions, for each case must depend upon its own circumstances. The act must be dishonest, and dishonesty must not be assumed solely by reason of knowledge of an unregistered interest. "

64 Mr Wells submits that the present is a case in which the designed object of the transfer is to cheat the plaintiff of a known existing right. In considering the question of fraud it is relevant that the sale to Mr Keliang Yang was effected secretly. It has often been said that secrecy is a mark of fraud (In Re Telescriptor Syndicate Ltd [1903] 2 Ch 174 at 189; Agip (Africa) Ltd v Jackson [1990] Ch 265 at 294). That is not to say that the fact that the transaction was kept secret from Mr Jin is itself enough to find fraud, but it is a relevant circumstance. 65 The contract of 29 May 2006 provided for the sale to be for a price of $372,000 payable by cash or bank cheque on completion. It did not proceed in that way. Pursuant to an arrangement with her former husband on their divorce in 1993, Ms Yang obtained her former husband's half share in their matrimonial home at 5 Farncomb Place, Gowrie. She became the sole legal owner of the property, but she agreed to hold a 50 percent share on trust for Keliang Yang until he turned 18. He turned 18 in 2000. 66 Ms Yang denied that she approached her son with a view to transferring the Ashfield property to him. She said that he approached her, asking for her to give him money for his half share of the Canberra property. As I have said, her evidence was that it was a coincidence that the approach was made when it was. I do not accept that evidence. If that were the fact Ms Yang could have sold the Canberra property as she did at the end of 2006. I do not accept her explanation that she could not do so in May 2006 because of some unarticulated oral agreement with one or more unidentified persons who were her tenants. 67 On 29 May 2006, the same day as the contracts were exchanged, Mr Keliang Yang signed a note which reads: " I Keliang Yang exchange my 50% equitable interest in 5 Farncomb Place Gowrie ACT as left by my father Quanhe Yang to me on trust held by my mother Wei Yang as part payment of 50% value of full purchase price of $372,000 for the property being sold to me at 82/1 Brown Street Ashfield NSW. I understand the value of the two properties are simular [sic] in price subject to normal market fluctuations. I renounce my equitable rights to 5 Farncomb Place Gowrie ACT as of the settlement for 82/1 Brown Street Ashfield. " 68 At the time of exchange and of completion the second defendant was aware that his mother and Mr Jin were living together as a couple. He had witnessed his mother's signature to a contract which named Mr Jin as a co-owner. He must have been aware that Mr Jin that was not noted on the title as a co-owner. He had notice that Mr Jin had some claim to the property, although I accept that the nature of that claim was probably not precisely known. Of course, notice of a claim or of an interest is not sufficient to establish fraud. 69 Ms Yang attempted to distance herself from her son. She said that she did not have a close relationship with him. Moreover, she said that, "We rarely see each other and do not communicate on any regular basis." The evidence as to her relations with her son in connection with the purchase of the Ashfield property and her son's attendance at the property and the sale of the property is inconsistent with any notion that they were not in regular communication. Ms Yang's evidence was that the only occasion her son visited the Ashfield unit prior to exchanging contracts for its purchase was at a dinner on Father's Day in 2005, some eight months before the sale. That itself would be a suspicious feature, but I do not place reliance on that matter on this question as to whether the transfer can be impugned for fraud because I do not accept Ms Yang's evidence as to the infrequency of her son's visits. Mr Jin's diary records more frequent visits and I accept that it is a more accurate record. 70 The purchase of the Ashfield property was completed on 22 June 2006. According to Ms Yang, the purchase price was paid as to 50 percent by her son relinquishing his half share of the Canberra property and was paid as to the other 50 percent by three payments. Mr Keliang Yang drew down a loan with the National Australia Bank of $150,000. After paying mortgage expenses, $148,621.82 was paid by the National Australia at his direction. $51,440.35 was paid to Perpetual Trustee Company Limited to offset Ms Yang's mortgage. $97,181.47 was paid to Ms Yang and banked to her bank account on 26 June 2008. Ms Yang said that the balance of approximately $37,300 was paid to her in cash. If that sum was paid, it was not banked. Ms Yang said that she spent those moneys, that is to say $37,300, before departing for a trip to America on 18 September 2006. She said that the moneys were spent on treating herself. She said: "Q. How did you treat yourself? A. I buy some clothes, jewellery and clear the debt from time to time, pay the bill, get ready to go for the trip for the holidays. "

71 The sum of $97,181.47 was not repaid to Mr Lee. Instead, between 14 July and 23 August 2006 Ms Yang made nine cash withdrawals in tranches of $5,000, $10,000 and in one tranche of $10,050 and in another of $25,000. These cash withdrawals totalled $90,500. Ms Yang said that she took $10,000 with her on her overseas trip and spent the balance on clothing, jewellery, poker machines, blackjack and unidentified bills. She said some of this money was used to buy her ticket. 72 On 29 June 2006, Ms Yang drew a cheque for $12,250 but denied that this was to reimburse her son for stamp duty. The cheque was not tendered and there was no evidence as to the payee. Ms Yang said she did not recall to whom it was paid and I do not conclude that it was paid to her son. 73 Mr Jin had moved out of the Ashfield unit on 19 August 2006 after an argument. On 16 September 2006, he spoke to Mr Keliang Yang and asked him to "... please pursue your mum to return my money so we can dissolve this relation peacefully." Mr Keliang Yang said, "My mum won't listen to me. How much exactly did you contribute to the unit?" Mr Jin said that he contributed $190,000 and paid for all the furniture. Mr Keliang Yang said the refrigerator was bought by his mother. 74 Mr Keliang Yang did not disclose that he had acquired the unit. Although Mr Jin had moved out, he returned to the unit either every day or at least from time to time to write. On 19 September 2006, that is the day after Ms Yang left for her overseas trip, Mr Jin found that the locks had been changed. Ms Yang denied changing the locks. I infer that the locks were changed by her son, who was then the legal owner. This conduct is consistent with Mr Keliang Yang and his mother acting together to exclude Mr Jin from any claim to the property. 75 Ms Yang returned from America on 18 December 2006. Arrangements were made for the sale of the Canberra property. She said that those arrangements were made with the real estate agent from America. The net proceeds of sale of the Canberra property were paid into her bank account. $341,193.74 was deposited on 30 January and the balance of the deposit of $26,155 was deposited on 2 February 2007. 76 On 5 February 2007, Ms Yang made a withdrawal by bank cheque of $250,000. She said she paid this amount to Mr Lee. She explained that the reason her debt to Mr Lee had increased from $97,181.47 to $250,000 was primarily because she had borrowed more money from him. She said that she borrowed $130,000 or $140,000 from Mr Lee when she was in America for the US trip and for hotel accommodation. Mr Lee was not called to corroborate this evidence. 77 On 6 and 9 February 2007, Ms Yang made two cash withdrawals of $50,000 each. Ms Yang said that she spent that money, but could not remember how she had spent it. There was no documentation or other corroboration of Ms Yang having spent $37,300 in cash allegedly paid to her by her son on 22 June 2006, $90,500 in cash withdrawals between 14 July and 23 August 2006, $130,000 to $140,000 allegedly borrowed from Mr Lee or $100,000 cash withdrawals made on 6 and 9 February 2007. There was no corroboration the $250,000 withdrawal on 5 February 2007 was paid to Mr Lee. 78 Ms Yang's uncorroborated evidence of her expenditure of these moneys lacks any credibility. I do not accept it. Yet, it is clear that Ms Yang no longer has the money. I infer that she transferred the money to someone. The likely transferee is the second defendant. I am not persuaded that that inference could only be drawn if there were evidence as to how the moneys were given to Mr Keliang Yang. The very nature of cash is that its transfer is difficult to trace. That is so a fortiori where the plaintiff has been unable to ascertain his whereabouts. 79 The inference from the fact that at least a substantial part of the proceeds of sale of the Ashfield unit and the Canberra property have found their way back to Mr Keliang Yang is that the sale of the Ashfield unit was collusive and mala fide. Had Ms Yang received money or property to equal value of the Ashfield unit, Mr Jin could trace his beneficial interest into such property. By transferring the Ashfield property to her son, selling the Canberra property and, as I infer, re-transferring substantial amounts of money to her son, Ms Yang would be in a position to defeat such a claim. I can and do infer that her son is a party to that attempt. 80 I can more readily draw these inferences from Mr Keliang Yang's failure to appear in the proceedings. I accept that fraud must be distinctly proved and is not proved by the drawing of inferences from uncertain or equivocal material, but inferences may more readily be drawn where the party against whom fraud may be inferred absents himself. Mr Keliang Yang has not been personally served. Orders for substituted service have been made, pursuant to which the relevant court processes have been served on the managing agent who has been collecting rent for him, on the solicitors for Ms Yang, his mother, and on his grandmother who lives in China and who brought him up as a child. I am satisfied that by these means the court proceedings would have been brought to his notice. This is so a fortiori as Ms Yang gave evidence of having spoken to her son in the middle of February 2007 shortly before the Chinese New Year. In that year Chinese New Year was on 18 February 2007. Ms Yang had been served with the summons naming her son as a defendant on 5 February 2007. Although she gave no evidence of having done so, I find it inconceivable that she would not have alerted him to the pendency of the proceedings. 81 I conclude that the transfer was made to Mr Keliang Yang with the intention, shared by him and Ms Yang, of thereby defeating any claim which Mr Jin might have to the property. The transfer was made pursuant to a purported sale which did not reflect the true purposes of the parties in that by indirect means the consideration paid by Mr Jin has, I infer, in substantial measure, been returned to him. In my view, he became registered as proprietor of the property by fraud within the meaning of s 42. 82 The consequences are that the plaintiff is entitled to an order for the appointment of trustees for sale. The Ashfield property is subject to a mortgage to the National Australia Bank. The finding that the plaintiff has a 50 percent beneficial interest in the property and that Mr Yang's interest in the property is subject to the plaintiff's interest does not affect the rights of the mortgagee. Upon the property being sold the mortgage will need to be discharged. The amount required to discharge the mortgage should be accounted for from Mr Keliang Yang's half share of the net proceeds of sale, so far as that share will extend. 83 The plaintiff is also entitled to an account for half of the rent derived from the property since his exclusion on 19 September 2006. It is unknown at this stage whether the net proceeds of sale of the property will be sufficient to meet those claims. Accordingly, it will be necessary also to reserve the proceedings for further consideration. Depending upon the accounts the plaintiff may be entitled to an order for equitable compensation from Ms Yang for breach of trust. 84 In the originating process the plaintiff sought an order that Ms Yang deliver up to him furniture and personal items described in an annexure to his affidavit. The statement of claim pleaded no claim in relation to that relief. No submissions were made about Mr Jin's claim that Ms Yang appropriated to herself various items of personal property left on the premises. Save for some items which Ms Yang acknowledged having sold for which she said she received $600, there was a dispute between the parties as to whether, as Ms Yang said, Mr Jin or his daughter had themselves collected the items of personal property which Mr Jin says were missing. There was neither cross-examination, nor submissions, nor pleadings in relation to these matters. In any event, having regard to my conclusion as to the lack of credibility of both parties, I would not be persuaded that Mr Jin's version of events in relation to the personal property should be preferred to that of Ms Yang. In my view, the plaintiff's claims in relation to his personal property should be dismissed with this qualification: that unless Ms Yang has already accounted for the $600 which she acknowledges having received from the sale of three items, then there should be judgment for that sum with interest, as there seems to be no issue that the items sold were the plaintiff's property. 85 I will hear the parties on costs and either stand the matter over to a convenient time in order for short minutes to be brought in or, if the parties are ready to hand up short minutes in accordance with these reasons now, I will deal with that issue now.

[Counsel addressed.] 86 I direct plaintiff's counsel bring in short minutes of order in accordance with these reasons at 9.30 am on 24 July 2008.

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