Qu v Kuang [2008] NSWSC 727 | Case summary

The issues 1 A property at Taren Point in New South Wales was purchased in the name of the plaintiff, Wei Li Qu. The defendant, Anna Xue Kuang, the mother of Ms Qu, registered a transfer of the land to herself. She forged the signature of Ms Qu as transferor. Ms Kuang said she was entitled to do so as she was the owner of the property. Ms Kuang subsequently increased the mortgage over the property. Ms Qu seeks an order that Ms Kuang discharge the mortgage and transfer the title to the property to her. To the extent to which she is successful in her claim, Ms Kuang seeks, by way of cross-claim, an account of monies due for her contributions to the acquisition of the property, repayment of the initial mortgage, contributions to the maintenance and improvement of the property, and the payments to Ms Qu to acquire her interest in the property. In the alternative, Ms Kuang seeks an order that Ms Qu reimburse her for the above payments. The conflicting testimonies 2 The evidence of Ms Qu and Ms Kuang was diametrically opposed. Ms Kuang said it was she who paid for the Taren Point property. Ms Qu said that her husband provided Ms Kuang with the funds from which she made the payments. 3 There was no documentary evidence that supported one version of events against the other. Ms Qu and Ms Kuang were subjected to wide ranging cross-examination as to credit. The early history 4 Evidence of the relationship between Ms Kuang and Ms Qu before the purchase of the Taren Point property has little relevance to the resolution of the issues. But some of it goes to the issue of credit. 5 Ms Qu lived with her paternal grandparents in Guangzhou, China until she commenced a de facto relationship with Wei Tong Liu. He subsequently became her husband. They lived in an apartment above their supermarket, which he managed. Ms Qu said she managed the businesses of Mr Liu's family that comprised a range of interests including retail shops, restaurants, nightclubs, hotels and office space. Mr Liu said her role was at a lesser level. She assisted him in the day to day running of the businesses. 6 In 1994 Ms Kuang visited her daughter in China. Ms Qu said her mother asked for money and Mr Liu gave her 200,000 renminbi (RMB) that she gave to her mother who left soon afterwards to return to Sydney. Ms Kuang denied receiving cash from her daughter whether RMB 200,000 or any other amount. Mr Liu corroborated Ms Qu's evidence. He said he provided approximately RMB 200,000 in cash to help Ms Kuang pay the mortgage on her house in Auburn, Sydney. Neither Ms Qu nor Mr Liu was shaken from this testimony in cross-examination. 7 Ms Qu first came to Australia in March 1995. In order to obtain a visa she and Ms Kuang met with an Australian official in Guangzhou. She told the official the only work she had done was work experience at school. She did not mention payment by Mr Liu for assisting him. The official recorded an answer to the question "Who pays living expenses?" as "Her mother". Ms Qu said, however, that her mother did not pay any money to her. Ms Kuang did not say she did. She said she sent money to her mother who she thought gave Ms Qu some money and bought things for her. It is not clear on the evidence whether Ms Qu or Ms Kuang gave the answer. As appears later in these reasons, I found Ms Kuang to be a domineering person whom Ms Qu was unable to contradict. Nevertheless, the evidence established that Ms Qu was prepared to deviate from the truth to support her visa application. 8 From 1995 until early 2002 Ms Qu made many trips to Australia. She visited Australia three times in 1995. She said she carried with her between 50,000 Hong Kong dollars (HKD) and HKD 60,000 of which she said she gave her mother about HKD 40,000 to help her pay her home loan and meet living expenses. Ms Kuang said she had no money dealings with Ms Qu except that Ms Qu sometimes bought food for the house or gave her small amounts of money to cover expenses. Mr Kuang denied receiving HKD 40,000. 9 Ms Kuang's first marriage to Ms Qu's father ended in divorce in 1992. She married Barry Hancock from whom she was divorced in 1999. Ms Qu said that in 1995 or 1996 her mother telephoned her from Australia and said that Mr Hancock had bought a second hand motor vehicle but it kept breaking down. Ms Qu said she would send some money. Ms Kuang denied the conversation and denied that Ms Qu offered to provide HKD 100,000 or any other amount to assist in buying a motor vehicle. 10 Ms Qu and Mr Liu established a system with Lau Wai Kit, a cousin of Mr Liu who lived in Hong Kong. Money provided to Mr Kit he banked into an account in Hong Kong from which he electronically transferred monies to Ms Kuang's Colonial State Bank account in Sydney. In 1996, RMB 100,000 was transferred to Ms Kuang's account. She said it was the purchase price of lotions and shampoo and items for a body shop that Ms Qu set up in Guangzhou. Ms Qu said it was to assist her mother in set up costs of a business of her mother's importing seafood and pineapples into Australia. Ms Qu said she had not sold body lotions. She ordered some dried flowers from Australia and her mother assisted her with freight and carriage, which Ms Qu reimbursed. 11 Ms Qu married Mr Liu in 1997. In January 1998 they came to Australia for the birth of their first child. Ms Qu was heavily pregnant at the time. Ms Kuang bought the airline tickets. Ms Qu said it was cheaper than buying them in China and she reimbursed her mother when they arrived. They stayed with her and Mr Hancock in their Auburn property. The acquisition of the Taren Point property 12 The four of them inspected the property at Taren Point. Ms Kuang said that she had seen an advertisement for the property and rang the real estate agent who told her the $480,000 purchase price had been dropped to $430,000 as an earlier sale had not proceeded and the vendors had the deposit. Ms Qu said that they had inspected other properties and she had suggested something near water. They went to the real estate agent and saw the property advertisement in the window. But her mother may have made an earlier telephone call. Mr Liu said they drove around and he was attracted by a for sale sign at the property. 13 Ms Kuang said she was interested in purchasing the property because she was concerned about the school her son Daniel Kuang was attending and the friends he was making in Auburn. She did not think Ms Qu would want to live at Taren Point because she and Mr Liu had said they did not want to live in Australia. 14 Ms Kuang said that in a family discussion after each said they liked the house, she said she wanted to buy it, it would be good for Daniel for schooling, there was a selective high school just across the road and it would also be good for her retirement house. She said her daughter said she had some money and she was prepared to put money in too and if the house were in her name it would support a visa application for Mr Liu to come to Australia because China might become dangerous. They would not live at Taren Point. It was just so that a visa application could be made. Ms Kuang said that Ms Qu also said that she could help pay the mortgage. 15 Ms Qu said she decided straight after inspecting the Taren Point property that she would like to buy it. 16 Mr Hancock did not give evidence. He was in gaol but no attempt was made to have him brought to court. 17 Ms Kuang made no attempt to enrol Daniel at the Taren Point selective school. While she said she went to three different selective schools in the Concorde area, she did not seek to enrol him there. Daniel said that his mother never raised with him her unhappiness about him attending a local public school. He attended Auburn Primary School until year 6 when he went to Macquarie Boys High School from year 7 to year 9. He said his mother enrolled him in the Holy Cross College, which he attended in years 10 to 11. He left after one semester of year 11 to go to Taipei, Taiwan to play representative basketball. 18 Ms Qu said she and her mother went to Wizard Home Loans to raise finance. Ms Kuang said Mr Hancock also attended. A proposal issued by Wizard named the three as borrowers. Ms Qu said that they were advised that Ms Kuang should be guarantor under the loan and the Auburn property should be used as security. The proposal from Wizard made no provision for guarantors but included the Auburn property as well as the Taren Point property as security. 19 Ms Kuang denied that she said after the meeting that she would not mortgage her property. She said that she told her daughter that because the house would be put in her name to get a visa for Mr Liu to come to Australia the loan should be put in her name as well. Ms Qu said that she and Mr Liu decided to raise the additional funds to purchase the property themselves without guarantee by Ms Kuang and she would sign the contract. They had purchased property in China that had been put in her name alone. Mr Liu returned to China to arrange finance for the purchase. 20 Ms Kuang said Mr Hancock paid a holding deposit of $17,000 and a cheque stub was produced. Ms Kuang said she paid the balance of the deposit, a further $26,000. 21 Ms Kuang agreed that Mr Kit transferred $39,251.29 to her personal account at Colonial State Bank in February 1998. But she said she understood the money was for a number of purposes: to contribute to Ms Qu's medical costs, to contribute to the expenses of Ms Qu, Mr Liu and members of Mr Liu's family living in her house at Auburn and to contribute to the costs of purchase of the Taren Point property. But Ms Qu had her baby in a public hospital, which was free even if she needed a Caesarean section and Mr Liu's parents provided Ms Kuang with monies for their stay in Sydney. Portion of the funds were used to purchase a station wagon and to purchase furniture and fittings for the Taren Point property. 22 Shortly after his return to China, Mr Liu sold a property for about RMB 600,000, about $110,000. At about the same time Ms Kuang went to China on business. Ms Qu said her husband told her that he had given her mother RMB 560,000 in cash. Ms Kuang denied it. Mr Liu affirmed it. He said he provided approximately RMB 500,000 in cash to Ms Kuang. He said Ms Kuang had telephoned him to say that he needed to pay money to purchase the house otherwise he would lose the deposit. Ms Kuang said: "Give me cash. I will take the money to Hong Kong and then transfer it to Australia." 23 Ms Qu said the monies transmitted by Mr Kit were for mortgage payments on the Taren Point property. There was no need to contribute to medical costs, and there was no need to contribute to the expenses of staying with Ms Kuang as Mr Liu's parents had provided funds. 24 Ms Kuang said she received further funds from Mr Kit but she understood that they were for the three purposes she had mentioned with respect to the first transfer. 25 Ms Qu and Mr Liu said they and Mr Liu's family who had come to Australia for the birth renovated the Taren Point property and moved in. Ms Qu said she remained at the Auburn property because of the Chinese tradition that a pregnant woman should not change beds. After the birth of their daughter, Ms Qu moved into the Taren Point property to be with her husband and members of his family. While Ms Kuang organised the payment for materials, Ms Qu said Mr Liu's family provided the funds. She conceded that Mr Hancock may have paid for the hire of a floor sander. Ms Kuang said it cost $148.10. 26 Ms Kuang said she often referred to the Taren Point property as her house or her retirement house. Daniel said that on one occasion his mother said: "The Taren Point property will be my retirement home". He replied: "Isn't that house belong to sister? Is she willing to give it to you?" to which his mother said: "Why not?" 27 Ms Kuang maintained that 90.51 per cent of the purchase price of the Taren Point property was paid by her and 9.49 per cent was paid by Mr Hancock. Ms Qu and Mr Liu maintained that while Ms Kuang made the payments, they were made from funds supplied by Mr Liu. Mortgage repayments 28 Mortgage repayments were made by automatic debit against Ms Kuang's Colonial State Bank account. Electronic transfers by Mr Kit were intermittent but Mr Liu maintained they were sufficient to cover the mortgage payments bearing in mind that from 1999 the Taren Point property was leased out. Ms Kuang said that those funds totalled $84,148.18. Ms Kuang also said that she made capital reductions from time to time. Subsequent events 29 Ms Qu, Mr Liu and their baby returned to China in about mid-May 1998. Ms Qu left the station wagon with Ms Kuang. She has since registered, maintained, insured it and used it. 30 A decision was made to lease the Taren Point property. Ms Qu and Mr Liu opened a joint account with Colonial State Bank into which rental payments were deposited and from which mortgage instalments were made. Ms Kuang executed the lease documentation in her daughter's name. The bank card and account book were given to Ms Kuang to operate. From about March 1999 Ms Kuang changed the direct debit from her personal Colonial State Bank account to the joint account in the names of Ms Qu and Mr Liu. 31 In about October 1998 Ms Kuang acquired, in Ms Qu's name, a business called Lily's Supermarket. The takings from that business were deposited into the joint account of Ms Qu and Mr Liu. Ms Kuang said the idea of putting the business in Ms Qu's name came from her. Ms Qu said it was her mother's idea. Her mother was in receipt of social security payments that she did not want to jeopardise. 32 Ms Qu was aware that her mother purchased the business in her name. In interlocutory proceedings she swore an affidavit in which she said she was shocked to find that the business that she owned was being sold without her knowledge or consent. Ms Qu was assisted by a lawyer in swearing this affidavit and said she did not believe that anything in it was inaccurate. She had lent her mother $60,000 to acquire the business. 33 Ms Kuang said she signed in her daughter's name because Ms Qu had told her solicitor that her mother could sign in her name. Ms Kuang said this occurred in the presence of the solicitor. In cross-examination she said that because she had the consent at the time the solicitor did not say anything. 34 Under her daughter's name, Ms Kuang refinanced the Taren Point property by a loan of $304,000 from Westpac, $257,000 of which Ms Kuang said paid out the Wizard Home Loan and the balance was used by Ms Kuang to buy the business, to pay for stock and generally. The loan application stated that Ms Qu was employed full time and earned $2,928 net per month. Ms Kuang said she was unaware of this information and relied upon the broker to fill out information that she provided to him. 35 Ms Kuang said she obtained her daughter's approval to knock down the house at Taren Point and build a new two storey building and she got her daughter's approval for refinancing the property with Westpac. Ms Qu said she was unaware of the refinancing until later. 36 Ms Kuang requested Ms Qu to provide a power of attorney so that she could transfer Lily's Supermarket to herself. Ms Qu went to a notary in Guangzhou who advised her that the power of attorney allowed her mother to do anything. The notary prepared a document in Chinese limiting the power of attorney to the management of the business of Lily's Supermarket. Ms Kuang was not satisfied with that document and requested her daughter come to Australia to execute a power of attorney before a solicitor. This was done. The power of attorney in general terms without the limitation of the Chinese document was executed by Ms Qu. 37 Ms Qu said she requested information about the Taren Point property from her mother without success. Ms Qu said she would have no choice but to sell the property. Mr Liu recalled Ms Kuang discussing a plan of developing the Taren Point property with a two storey building but nothing eventuated. Shortly before his divorce from Ms Qu he tried to sell the Taren Point property to a friend but Ms Kuang refused to hand over documentation. Ms Qu also said that she had difficulty with her mother in placing the property for sale. 38 In about 2001 Ms Qu and Mr Liu had agreed to separate. In about April 2002 she moved back to Sydney with her daughter while her husband remained in China. In about July 2002, Mr Liu came to Australia to formalise their divorce. It was agreed that Ms Qu should keep the Taren Point property and he would keep the property in China. Mr Liu had an argument with Ms Kuang about her refusal to provide documentation with respect to the Taren Point property. The argument ended with him pounding his head with a crystal vase. 39 After the argument Ms Kuang paid Mr Liu $30,000 and asked him to leave. Ms Kuang said that she had a discussion with her daughter in which Ms Qu said they needed money to help Mr Liu's family and they should sell the Taren Point property. Ms Kuang said she would not do that as she wanted to live in the house when she retired but she would organise money to pay them back. 40 Ms Qu signed a contract to buy a property at Homebush. Ms Kuang repaid the $60,000 lent to acquire Lily's Supermarket by paying the deposit on the townhouse to the real estate agent and the balance to Ms Qu. A Don Grassick who sat in court during the whole of the trial provided Ms Qu with a further cheque for $20,000. He did not give evidence and his part in events was not explained. 41 In Ms Qu's name, Ms Kuang executed a transfer of the Taren Point property to herself. She was asked why she did not use the power of attorney and said because she had transferred Lily's Supermarket into her own name without the power of attorney she did the same with the Taren Point property. Her purported signature of Ms Qu was witnessed by Mr Hancock. The signature of Ms Kuang as transferee was witnessed by Mr Grassick. 42 Ms Qu said she became suspicious in about March 2005 and conducted an internet title search of the Taren Point property. She said it was then that she first became aware that the property had been transferred into her mother's name. She said she did not authorise the transfer and did not give permission for the forging of her signature. Nor did she authorise her mother to refinance the property. Ms Kuang said she did not tell her daughter that she was going to transfer the property into her name before she did so nor afterwards. She said she understood that the property had been released to her upon the payment of $30,000 to Mr Liu and $80,000 to Ms Qu. 43 In October 2004, Ms Kuang borrowed $800,000 from ING Bank secured on the Taren Point property. Resolution 44 It was put to Ms Qu that by agreeing to the Lily's Supermarket business being put in her name she was assisting her mother's dishonesty in maintaining her claim to social security benefits. Ms Qu replied that she had no choice, she had to obey. That answer impressed me. Her mother was a determined woman who exhibited a domineering attitude in the witness box. In one of her letters to her mother Ms Qu said she was not able to convince her as she was always in the wrong, that her mother knew very well how to protect herself and would not consider her children even for a bit. She had prepared topics to speak about with her mother but once she saw her she "swallowed her words". I can well appreciate these sentiments. 45 Of particular significance in the resolution of this difficult case is the expenditure of monies provided by Mr Liu and his family for the renovation and installation of furniture and effects at the Taren Point property. If the property belonged to Ms Kuang why would Mr Liu's parents spend monies on it? I accept the submission that it was more likely that the property was being prepared for Ms Qu and her newborn daughter to live in as her property. Again, if the property was Ms Kuang's, why did Mr Liu and Ms Qu continue to send monies via Mr Kit for the mortgage repayments? 46 The subsequent events are of little assistance in resolving the issue. They do establish, however, that Ms Qu was correct in stating that her mother knew very well how to protect herself. Her transferring the Lily's Supermarket business and the Taren Point property into her own name by forging her daughter's signature demonstrated a ruthlessness on her part. 47 Ms Qu's credit is not without blemish. She told an immigration officer in August 1999 that she had established a small business in Australia that was run by her family in her absence. While Lily's Supermarket was registered in her name she always regarded it as her mother's business. 48 Ms Qu was precise in her recollection of dates and events in cross-examination although there were a few occasions when she could not remember detail. 49 Mr Liu had no interest in giving evidence for his ex-wife yet he did so. He readily conceded in cross-examination that his recollection was not crystal clear on certain matters. He said: "It's a kind of impression". I have no reason to doubt the evidence of Mr Liu. 50 Likewise, I have no reason to doubt the evidence of Daniel. Cross-examination of him was perfunctory and he was not cross-examined on what he said to his mother about Taren Point being his sister's house or her response. 51 On the other hand it is open to me to draw an adverse inference from the lack of evidence from Mr Hancock and Mr Grassick under the principle in Jones v Dunkel (1959) 101 CLR 298. 52 Of significance in the resolution of the conflicting testimonies is the fact that evidence of Mr Liu and Daniel corroborated aspects of Ms Qu's evidence in conflict with that of Ms Kuang while her evidence was not corroborated in any respect. 53 Taking the above matters into account, I prefer the evidence of Ms Qu to that of her mother. I accept that the source of the funds to pay for the Taren Point property on settlement came from the loan in Ms Qu's name alone and from funds provided by Mr Liu. 54 While the mixing of funds in various bank accounts and their operation by Ms Kuang makes it difficult to ascertain the source of the funds for mortgage payments, the obligation under the mortgage remained that of Ms Qu and I see no basis upon which equity should grant a beneficial interest in the Taren Point property in favour of Ms Kuang for any mortgage payments made from her funds. 55 Mr Liu and Ms Qu ceased to make any payments toward mortgage instalments after Ms Qu learned that the property had been transferred into her mother's name. Payments made by Ms Kuang thereafter were offset to a certain extent by the receipt of rent and, again, I fail to see a basis for Ms Kuang obtaining a beneficial interest in the Taren Point property on that ground. 56 It was submitted that the random nature of the payments made by Mr Kit suggested that it was more likely that they were general payments to compensate Ms Kuang for accommodation expenses when Ms Qu and Mr Liu visited Australia than for mortgage repayments. I reject that submission. The electronic payments were dependent upon Mr Liu providing Mr Kit with cash either in China or in Hong Kong and that depended upon Mr Kit being in China or Mr Liu being in Hong Kong. The inference to be drawn is that the sporadic nature of the payments was because of the sporadic attendance of one or other of the gentlemen in the other's country. 57 In my view Ms Qu has made out a case for orders that the existing mortgage over the Taren Point property be discharged and the property be transferred to Ms Qu. Cross-claim 58 Gerard Abrams, a chartered accountant, gave evidence of the contributions made by Ms Kuang with respect to the purchase and subsequent mortgage repayments. But as Mr Abrams said, he did not carry out any investigations as to the original source of funds within Ms Kuang's bank account from which the major contribution was made to the initial purchase of the property. 59 Mr Abrams made an assessment of Ms Kuang's contributions to mortgage payments from June 2002 to be applied to the original loan and to the new funds borrowed from that date. If he had attributed the payments towards the discharge of the first mortgage his assessment of Ms Kuang's contributions would be less. In my view, had an account been an appropriate remedy to Ms Kuang, it should have been taken on the basis of discharging the first mortgage before any attribution to the discharge of the new funds borrowed in 2002. 60 But Ms Kuang asserts no equitable right in respect of which an account is necessary to give effect to the right. Nor does she assert a common law right. The remedy of account is inappropriate. This is not, however, a case of presumption of advancement between a mother and a daughter. If Ms Kuang made mortgage repayments from her own funds she did so with no intention of benefiting Ms Qu. Ms Qu comes to equity and must do equity. In my view the proper course is that Ms Qu reimburse Ms Kuang for any payments she made from her own funds under the original mortgage of the Taren Point property and any outgoings with respect to the property. 61 If the figures deduced by Mr Abrams are accurate there would appear to be a contribution by Ms Kuang of $187,181.36 when the original Wizard home loan was paid out together with mortgage repayments of $4,330.56 in 1998, $31,090.88 in 1999, $95,050.00 in 2000 and $49,300.00 in 2001, a total of $366,952.80. If the outgoings for rates, water rates, land tax, insurance and repairs and maintenance that Mr Abrams found are accurate, her contributions increase to $426,033.52. On the other hand, Ms Qu is entitled to payments through Mr Kit and a Mr Ton that I have found were for mortgage repayments. If Mr Abrams figures are correct they totalled $84,148.18 and if his rent figures are accurate, Ms Qu is entitled to a further $75,901.53 together with any other rent that was received from 2006 onwards. As the owner of the Taren Point property she was entitled to its rents. In the absence of proof of any other contributions from either party, the result would be an entitlement in Ms Kuang for reimbursement of $265,983.81 reduced by any additional rent not shown in Mr Abrams' Annexure 5. 62 In my view Ms Kuang has made out an entitlement to an order that Ms Qu reimburse her to the extent determined by an Associate Judge for any contributions made from her own funds to the loan from Wizard Home Loans together with outgoings on the Taren Point property. Costs 63 In my view each party has been successful in claim and cross-claim. The evidence in relation to the cross-claim was not nearly so extensive as that in relation to the claim. In these circumstances I see no reason for a departure from the general rule that costs follow the event. Orders 64 I order the defendant to discharge the mortgage over the property being lot 33, section 6 in deposited plan 6451, known as 82 Woodlands Road, Taren Point, New South Wales recorded as dealing number AB79072. I order the defendant to transfer that property to the plaintiff. If the parties do not agree upon an amount for reimbursement of the cross-claimant within 14 days, I order that the cross-defendant pay to the cross-claimant such amount, if any, as an Associate Judge determines to have been contributed by the cross-claimant from her own funds to payments under the mortgage of the above property to Wizard Mortgage Corporation Ltd together with payments of rates, water rates, land tax, insurance, repairs and maintenance and any other outgoings on that property. I order the defendant to pay the plaintiff's costs of the claim. I order the cross-defendant to pay the cross-claimant's costs of the cross-claim if liable to reimburse the cross-claimant otherwise the cross-claimant pay the cross-defendant's costs of the cross-claim. I stand the matter over before the Registrar at 9.15 am on Thursday 31 July 2008. **********

Qu v Kuang

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Judgment (9 paragraphs)

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