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[2026] ACTSC 338
Supreme Court of the ACT
2026-09-07
Muller J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Qiu v Zhang (No 2) Citation: [2026] ACTSC 338 Hearing Date: 26 August 2026 Decision Date: 7 September 2026 Before: Muller J Decision: See [35] Catchwords: CIVIL PRACTICE AND PROCEDURE – PLEADINGS – Application to strike out pleadings – consideration of principles – reasonable cause of action – whether pleading embarrassing, ambiguous and lacking necessary particularity – quantum meruit – unjust enrichment Legislation Cited: Court Procedures Rules 2006 (ACT), r 425 Cases Cited: Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 Australian Securities and Investments Commission v Marco (No 13) [2023] FCA 83 Calverley v Green [1984] HCA 81; 155 CLR 242 Dencio v Dencio in her capacity as Administrator of the Estate of the late Brian Gordon Dencio, Deceased [2020] ACTSC 250 M Plus Advisers Pty Ltd v Frino [2025] ACTSC 517 McGrath v McGrath [2018] ACTSC 148 Texts Cited: G E Dal Pont, Equity and Trusts in Australia (Thomson Reuters, th 8 ed, 2023) Parties: Haifeng Qiu (Plaintiff) Shuang Zhang (Defendant) Representation: Counsel D Robens (Plaintiff) Self-represented (Defendant) Solicitors Du & Associates Lawyers (Plaintiff) Self-represented (Defendant) File Number: SC 53 of 2026 MULLER J:
Mr Haifeng Qiu and Ms Shuang Zhang are in dispute about the ownership of five residential properties (the properties). Each of the properties was purchased in Ms Zhang’s name: (a) Block 7 Section 74 Gungahlin in Volume 1769 Folio 99 – known as 64 Swain Street, Gungahlin ACT 2912 (purchase completed on 30 November 2021); (b) Unit 33 Block 1 Section 118 Harrison in Volume 2027 Folio 63 – known as 33/134 Flemington Road, Harrison ACT 1912 (purchase completed on 17 December 2021); (c) Unit 1 Block 1 Section 149 Gungahlin in Volume 1776 Folio 71 – known as 47A Mary Gillespie Avenue, Gungahlin ACT 2912 (purchase completed on 24 June 2022); (d) Block 18 Section 30 Lyneham in Volume 472 Folio 48 – known as 119 Brigalow Street, Lyneham ACT 2602 (purchase completed on 13 June 2024); and (e) Block 3 Section 123 Gungahlin – known as 275 Anthony Rolfe Avenue, Gungahlin ACT 2912 (the Anthony Rolfe property).
Mr Qiu says between June 2021 and August 2025 he and Ms Zhang were in a de facto relationship. She does not say there was no relationship between the two, but she does not admit it had the character asserted by Mr Qiu. He asserts during the same period he and Ms Zhang entered into an agreement about the joint operation of a cleaning business, with proceeds from the operation of the business to be used to partially fund the purchase of the properties. Ms Zhang does not deny the existence of some business arrangement between the two, but she disputes the terms asserted by Mr Qiu.
Mr Qiu seeks a declaration of an equitable interest of a half share in the properties. He alleges his interest arises from an oral contract with Ms Zhang to jointly contribute to the property’s deposit or purchase price, with Ms Zhang to be the registered proprietor, to hold the properties on equal trust for Mr Qiu, and to equally apportion income generated from the properties, or alternatively that his interest arises from the conduct of the parties.
Mr Qiu has caveats registered against each of the properties other than the Anthony Rolfe Property – that property having already been sold. I previously dismissed an application made by Ms Zhang seeking security for costs. She now seeks an order that Mr Qiu’s statement of claim be struck out pursuant to s 425(1)(b) of the Court Procedures Rules 2006 (ACT) (the Rules), with leave given to replead. In the alternative she seeks the provision of further and better particulars of the claim together with ancillary orders concerning the filing of an amended defence and the timing for the provision of discovery.
Mr Qiu opposes the application. He contends the pleadings are entirely adequate in their present form, and the matter should be permitted to proceed in the usual way.
In support of her application Ms Zhang reads her own affidavit affirmed on 5 June 2026. Mr Qiu reads his own affidavits filed in respect of the previous application dated 25 March 2026 and 3 April 2026.
Rule 425 of the Rules is in the following terms: 425 Pleadings—striking out (1) The court may, at any stage of a proceeding, order that a pleading or part of a pleading be struck out if the pleading— (a) discloses no reasonable cause of action or defence appropriate to the nature of the pleading; or (b) may tend to prejudice, embarrass or delay the fair trial of the proceeding; or (c) is frivolous, scandalous, unnecessary or vexatious; or (d) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under this rule. (3) If the court makes an order under this rule, it may also make any other order it considers appropriate, including, for example— (a) if the court makes an order under subrule (1) (a)—an order staying or dismissing the proceeding or entering judgment; and (b) an order about the future conduct of the proceeding. (notes omitted by this court)
Why should the plaintiff’s pleading be struck out?
Ms Zhang relies on a number of grounds in support of her application. They are summarised below: (a) no reasonable cause of action is disclosed; (b) the property and resulting trust claims are embarrassing, ambiguous and lacking necessary particularity; (c) the alleged oral agreements are not adequately particularised; (d) the material facts supporting the allegation of an equal equitable interest in the properties are not disclosed; (e) the rental relief claimed depends on a resulting trust or a one-half beneficial interest in the properties. The resulting trust is not pleaded, and the beneficial interest is not calculated; (f) the business-related claim pleads no basis for a one-half entitlement and otherwise fails to quantify the relief claimed; (g) there is a failure to identify the material facts which support each individual claim for relief; (h) the claim itself includes internal inconsistencies; and (i) to the extent Mr Qiu relies upon the need for further discovery to explain pleading shortcomings that reliance is misplaced.
It will be necessary to deal with each of those grounds in turn, but before doing so there is merit in reflecting upon the principles applying in an application to strike out a pleading.
When will a pleading be struck out?
In M Plus Advisers Pty Ltd v Frino [2025] ACTSC 517 I set out the relevant principles at [34]-[36]: The power under r 425 is a discretionary one and should only be sparingly applied, so as to avoid depriving a plaintiff of the opportunity to have their case tried properly: Twining v Curtis [2009] ACTSC 106; 3 ACTLR 174; General Steel at 128-129. In particular, the court must be satisfied that the pleading is defective in substance, and not merely in the manner in which the claim has been stated, such that it is clearly untenable: McColley v Commonwealth [2014] ACTCA 21 at [34]; Carlisle v Filaria Pty Ltd [2002] ACTSC 33 at [16]. An order striking out all or part of a pleading will only be made in a plain and obvious case: Davis v Commonwealth (1986) 61 ALR 18; 61 ALJR 32 at 23. It follows that a very clear case will be required before a plaintiff will be prevented from pleading a case on the basis that no reasonable cause of action is disclosed: McGuirk v University of New South Wales [2009] NSWSC 1424 (McGuirk) at [37]. If a reasonable cause of action is disclosed, but the pleaded case is weak or has a low prospect of success, it will not warrant striking out the pleadings: Coe v Commonwealth (1979) 24 ALR 118; 53 ALJR 403 at 127. Whether a statement of claim discloses a reasonable cause of action is a question of law, to be assessed on the assumption that every fact pleaded by the plaintiff is true: McColley at [29], [31]; Galovac Pty Ltd v ACT [2010] ACTSC 132; 19 ACTLR 238 at [5]. The lack of a cause of action must be “clearly demonstrated”: General Steel at 129. If a pleading does not allege the material facts on which it relies with certainty, such that a clear conception of the case being made is conveyed, the pleadings will be embarrassing in the legal sense: Gunns Ltd v Marr [2005] VSC 251. The circumstances in which a court may find that a pleading is embarrassing or prejudicial have been described in McGuirk at [30]: A pleading is embarrassing where it is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”: Meckiff v Simpson [1968] VR 62 at 70; Gunns Limited v Marr at [14]- [15].
Importantly the identified defect must be of substance and not merely an issue arising from the form of words used.
No reasonable cause of action is disclosed
The primary complaint in this category is the use of legal concepts in the pleading without identifying the material facts relied upon to make out Mr Qiu’s case. Ms Zhang says she is as a result unable to understand the case she is required to meet. Ms Zhang relies on four particular structural defects she identifies in the pleading: (a) there is confusion between a pleaded oral agreement creating a 50% equitable interest in both the profits of the business and in each of the purchased residential properties, and the claim made for ½ share of each of the properties based on a resulting trust. The route to each asserted equitable interest is unclear; (b) no plaintiff-specific acquisition contribution is pleaded for any property, and no acquisition loan liability is pleaded against Mr Qiu, leaving no pleaded legal path from acquisition to the 50% contribution claimed; (c) the business claim combines an express contract, implied terms, a trust claim, unjust enrichment and quantum meruit without separating those concepts in any meaningful way; and (d) the originating claim and statement of claim contradict each other and themselves as to property, date, period and amount.
Dealing with the first of the four identified defects, Ms Zhang points to the materially different nature of the claim for a resulting trust compared with a claim for an equitable interest in the property arising from an express agreement. It is well-established that in order to create an express trust three matters must be established with certainty: (a) the intention of the parties; (b) the subject matter of the trust; and (c) the object of the trust – that is, it’s beneficiary or purpose.
See in particular Dencio v Dencio in her capacity as Administrator of the Estate of the late Brian Gordon Dencio, Deceased [2020] ACTSC 250 at [45] and Australian Securities and Investments Commission v Marco (No 13) [2023] FCA 83 from [95].
As for a constructive trust, G E Dal Pont observes in Equity and Trusts in Australia th (Thomson Reuters, 8 ed, 2023) at 16.20: The court imposes a constructive trust…where, according to the principles of equity, it would be a “fraud” for the person in whom the court imposes the trust (the constructive trustee) to assert beneficial ownership as to the property in issue, or otherwise not to account for a gain or compensate another for a loss as if he or she were a trustee of an express trust.
The presumption of a resulting trust was described by Deane J in Calverley v Green [1984] HCA 81; 155 CLR 242 at 266 in the following way: …where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it.
Returning to the relevant portion of the pleading for each of the properties, the 3 elements of an express trust are pleaded for the Swain Street property at clause 8, for the Harrison property at clause 13, for the Mary Gillespie property at clause 18, for the Anthony Rolfe property at clause 23 and for the Lyneham property at clause 30.
There is no express pleading of a constructive trust in relation to any of the properties. A resulting trust is pleaded in a conclusory way at clause 38. The question is whether the earlier pleading sets out the material facts relied upon in support of the existence of a resulting trust. In respect of each of the properties it is pleaded that Mr Qiu contributed towards the purchase of the property (at paragraphs 10, 15, 20, 25 and 32). Those pleadings do not detail the financial contribution made by Mr Qiu to the purchase of each property although the expression “jointly contribute” is used in each case. I do not accept that the absence of a pleaded contribution sum is a defect of the kind warranting striking out the pleading. It is certainly a matter about which there is a reasonable basis for the seeking of further and better particulars, but it does not warrant striking out of the claim.
As to the second complaint it has two elements. First the failure to particularise the actual value of the purchase contribution. I have dealt with that failing above. The second is the absence of evidence to the effect that Mr Qiu has acquired a liability pursuant to the loan agreement. Ms Zhang spent some time in submissions emphasising that she is the only person registered on the title to the properties and that she was solely responsible for negotiating the relevant loans and is solely liable pursuant to the loan agreements. That much does not appear to be contested. Nor does it constitute a barrier to the making of an equitable claim. If it is the case Mr Qiu made a real financial contribution to the purchase of each of the properties as he asserts in his statement of claim, and it is the case that funds generated from their joint business enterprise were used for the purchase of the properties, and to fund the loan liability, as Mr Qiu asserts in his statement of claim, the material facts supporting a claim for a resulting trust are established.
The third complaint relates to the asserted business contract. Mr Qiu asserts an express oral agreement, the basic terms of which are set out in his pleading. He then pleads, in the alternative that the terms of the contract between the parties may be implied from their conduct and at paragraph 6 the conduct relied upon is set out. I see no difficulty with that form of pleading. It is clear the assertions based on terms implied by conduct are pleaded in the alternative to the express contractual terms asserted above. As to the use of the language of unjust enrichment and quantum meruit, they are terms sometimes used interchangeably, albeit unhelpfully. A quantum meruit claim is founded in the supply of goods or services where the supplier asserts an entitlement to recompense for the reasonable value of the goods or services provided notwithstanding the lack of a formal or enforceable contract. Unjust enrichment on the other hand is the pursuit of compensation, notwithstanding the absence of an express contractual entitlement, where one party unfairly secures a benefit at the other party’s expense.
The use of the language of unjust enrichment is, in the circumstances of this claim, unhelpful. Taking paragraph 7 by way of example, if by that paragraph Mr Qiu intends to assert in the alternative to the claim in contract particularised previously, that he has an alternative entitlement on the basis of principles of unjust enrichment, that should be made clear and the material facts supporting the claim founded in unjust enrichment set out. I will therefore strike out paragraph 7 and give leave to replead. Similarly in paragraph 51, reference is made to a quantum meruit assessment for the first time. Mr Qiu does not articulate in the earlier pleading that a claim is made in the alternative on a quantum meruit basis and he does not articulate the material facts relied upon in support of that claim. As a consequence, I will strike out paragraph 51.
As to the fourth point, there are some factual inconsistencies internal to the pleadings. Counsel for Mr Qiu conceded as much in the course of oral submissions describing them as typographical errors. It seems to me they are matters that may be raised between the parties in the form of correspondence with a view to the pleading being regularised at an appropriate time. They are not such as to warrant the striking out of that portion of the pleading.
The property and resulting trust claims are embarrassing, ambiguous and lacking necessary particularity
This is addressed above. I am satisfied that the express trust is adequately pleaded as is the existence of a resulting trust as an alternative claim.
In McGrath v McGrath [2018] ACTSC 148 at [42] McWilliam AsJ (as her Honour then was) quoted with approval the following passage concerning the presumption of a resulting trust from the decision of Ward CJ in Eq from Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 at [163]: The presumption of a resulting trust is…a presumption as to a declaration of trust, premised on a presumed intention to create an equitable (beneficial) interest in the acquired property in someone other than, or in addition to, the person in whom legal title is vested. Once the primary fact giving rise to the presumption is established (for example, that one or more persons has or have provided part or all of the purchase price but the legal title has been vested in another), the burden falls on the party disputing the existence of a resulting trust …to rebut the presumed fact on the balance of probabilities…Where that party fails to rebut the presumption, the court “upon consideration of all circumstances presumes there was a declaration [of trust] though the plain and direct proof thereof be not extant”. (citations omitted)
The absence from the pleading in its present form of a specified money sum contribution made by Mr Qiu is not fatal to his claim. That is particularly so in circumstances where, at least in part, he asserts his money contribution is in the nature of proceeds from the business in respect of which he claims a joint entitlement. Further particulars are required of the money contributions he asserts but, the absence of those particulars is not fatal to the pleading. I am satisfied the material facts are set out and the issue should be addressed in the form of a request for further and better particulars.
Oral agreements are not adequately particularised
The material facts supporting the allegation of an equal equitable interest in the properties are not disclosed
I do not accept this submission for the reasons set out above. The basis for the equal equitable interest is contended to be an oral agreement between the parties to that effect. Ms Zhang clearly disputes the existence of an oral agreement, or at least an oral agreement in those terms. Mr Qiu is not called upon at this stage to prove the existence of the agreement, merely to set out the factual basis upon which his claim for relief is founded. He has done that in the present form of pleading. The rental relief claimed depends on a resulting trust or a one-half beneficial interest in the properties
That which Ms Zhang describes in her application as the “rental/accounting relief” claim appears to arise from paragraphs 12, 17, 22, 29, 34 and 45 of the statement of claim. In each of those paragraphs Mr Qiu seeks either an account of profits or, in the case of the Anthony Rolfe property, payment of his equitable portion of the proceeds of sale. Paragraph 45 is a “catch all” pleading seeking an account of profits for the rental income received from each of the properties. A basis for the asserted entitlement to a share of the profits is articulated for each of the properties. For example, in relation to the Harrison property at paragraph 13 Mr Qiu pleads: (a) an oral agreement to jointly purchase the property; (b) on the basis of a joint contribution to the required deposit and associated costs; (c) the funding of the balance of the purchase price by way of mortgage; (d) the registration of the property in Ms Zhang’s name; (e) the rental of the property; and (f) the receipt of rental income by Ms Zhang whereby an equal portion of that income would be held on trust for Mr Qiu.
An express agreement is pleaded. It may be in respect of that express agreement Mr Qiu asserts an entitlement to an accounting of profits. However, if that connection is sought to be made, it is not articulated in paragraph 45 and that paragraph should be struck out.
The business-related claim pleads no basis for a one-half entitlement and otherwise fails to quantify the relief claimed
The primary basis asserted in the pleading for the business claim is an express oral agreement to the effect the parties would jointly enter into and administer a service-based business providing a range of domestic services, primarily cleaning services, and as a term of the agreement the parties would be equally entitled to share in all the profits received through the business. It is not correct to say the material facts underpinning the one-half entitlement are not set out in the statement of claim. Mr Qiu asserts an agreement in the terms I have described. It is not necessary for the purpose of pleading the material facts of his claim that he pleads all of the particular facts justifying an entitlement to a one-half share. The agreement may be reached in circumstances where 90% of the productive effort is provided by one party. The issue to be addressed in assessing the pleading is whether a reasonable cause of action is disclosed. Accepting the pleaded facts as true, Ms Zhang has not established a failure on the part of Mr Qiu to disclose a reasonable cause of action in the form of pleading he has used.
For the reasons given above, I accept the claim for unjust enrichment is problematic and paragraph 7 is to be struck out.
There is a failure to identify the material facts which support each individual claim for relief
The claim itself includes internal inconsistencies
To the extent the plaintiff relies upon the need for further discovery to explain pleading shortcomings that reliance is misplaced
The inability of a plaintiff to access documents otherwise likely to be reasonably available to the defendant, and ultimately available to the plaintiff through a process of discovery, is not a basis upon which a party may avoid its obligation to plead a claim with sufficient particularity for the defendant to understand the substantive case they must meet. Where a plaintiff is unable to plead its substantive case because of the lack of access to documentation reasonably thought to be available to another party the rules allow for preliminary discovery, giving a prospective plaintiff the opportunity to access documents before proceedings are commenced. To the extent I have found Mr Qiu’s pleading to be deficient, it is not an answer to those deficiencies to say there are documents prospectively available through discovery that will fill the gaps.
Ms Zhang has enjoyed partial success in her application, but as an unrepresented party she is not entitled to recover any legal costs. In those circumstances I propose to make no order as to costs. Orders
For the reasons set out above I make the following orders: (1) Pursuant to r 425 of the Court Procedures Rules 2006 (ACT), the following paragraphs of the plaintiff’s statement of claim are struck out: (a) Paragraph 7; and (b) Paragraphs 38 to and including Paragraph 51. (2) The plaintiff has leave to replead, and if choosing to do so has 28 days to file and serve any amended statement of claim. (3) Upon receipt of any amended statement of claim, the defendant has leave to file and serve any amended defence within 14 days. (4) The defendant has leave to seek further and better particulars within 28 days of receipt of any amended statement of claim (5) I make no order as to costs.
I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller.
Associate: MG Malouf Date: 7 September 2026
Qiu
Zhang (No 2)
[2014] ACTCA 21
(1986) 61 ALR 18
(1979) 24 ALR 118