Tran v Tran

File Number(s): 2024/00343994

Publication restriction: Nil

JUDGMENt (EX TEMPORE REVISED FROM TRANSCRIPT)

1. The plaintiffs are husband and wife. The first plaintiff is the sister of the defendant.

2. The plaintiffs and the defendant are co‑owners of a property located at X Curtin Street Cabramatta, New South Wales (Property). The interests of the parties recorded on the title to the Property are each of the plaintiffs having a one‑quarter share, with the defendant having a one‑half share.

3. By summons, filed on 17 September 2024, the plaintiffs sought orders appointing trustees for sale of the property under s 66G of the Conveyancing Act 1919 (NSW), together with related relief.

4. On 19 March 2025, the defendant filed a cross‑claim pursuant to orders made by me on 7 February 2025. In that cross‑claim, the defendant sought, relevantly, the following relief:

1 A declaration that the Cross‑Defendants hold their combined half‑share in the property situated at X Curtin Street Cabramatta New South Wales 2166, being the land described as Lot X in deposited plan X (Property), on trust as to 71.39% for the Cross‑Claimant by reference to express, implied, constructive or resulting trust principles.

2 An order that title to the Property be rectified on the register of land titles maintained by the Registrar‑General to record that the Property is held by the Cross‑Claimant and Cross‑Defendants in the following shares:

a) the Cross‑Claimant as to 71.39%;

b) the First Cross‑Defendant as to 14.305%;

c) the Second Cross‑Defendant as to 14.305%.

5. On 21 March 2025, the Court made orders appointing trustees for sale of the Property. The defendant was represented by lawyers at this time. The orders made required the defendant to vacate the Property by 16 May 2025. That date was an extension, sought by the defendant's solicitor, from the date proposed by the plaintiffs.

6. It was accepted by the solicitor appearing for the defendant on 21 March 2025, that even if the defendant's cross‑claim succeeded, such that the defendant's interest in the Property was approximately 71%, and not 50%, there would not be any basis to oppose the appointment of trustees for sale as the parties are relevantly co‑owners.

7. Vacant possession was not provided by the defendant by 16 May 2025, and the trustees thereafter obtained a writ of possession, which the Sheriff executed on 18 July 2025. The defendant has informed the Court that he is presently living in a hotel. It also appears that a number of the defendant's personal belongings remain at the Property.

8. The defendant ceased to be represented on, or about, 16 May 2025. In early May 2025, when the defendant remained represented, I made orders that the parties attend a settlement conference. That, obviously enough, did not settle the proceedings.

9. On 16 May 2025, I made orders that the defendant serve any further evidence on which he intended to rely, by 30 May 2025. The defendant appeared for himself on that occasion with the assistance of an interpreter. He also handed to the Court, on 16 May 2025, some documents which he indicated he wished to rely on at the final hearing.

10. No further evidence was filed by the defendant pursuant to the orders made on 16 May 2025.

11. On 6 June 2025, when the matter was next before the Court, the defendant appeared for himself, again with the assistance of an interpreter. I listed the matter for final hearing before me today.

12. The hearing before me today has proceeded with Mr J Horowitz of counsel appearing for the plaintiff, and the defendant appearing for himself with the assistance of an interpreter.

13. Conscious of what was recently said by the Court of Appeal in Chalik v Chalik [2025] NSWCA 136 at [66]‑[72] per Bell CJ, Payne and Free JJA, I have sought to ensure that a fair trial has taken place. I have sought to explain to the defendant, through the interpreter, what was to occur in the hearing and at various junctures I have explained the issues by reference to the orders sought by the plaintiffs today.

14. The process today has included the Court taking an adjournment of about 30 minutes, to enable the defendant to read the short affidavit material on which the plaintiffs rely. The material previously provided to the Court by the defendant was admitted into evidence. The defendant was also affirmed and given an opportunity, which he availed himself of, to give any further evidence in relation to the orders sought by the plaintiffs, or the relief sought by the defendant in the cross‑claim. The defendant was then cross‑examined by counsel for the plaintiffs. Each party then made submissions to me.

15. During the course of his evidence, the defendant referred to the fact that he had spent in the order of $11,000 in carrying out certain demolition work at the property. It appeared that the defendant wanted to claim this money from the plaintiffs, or at least have the Court take it into account as a setoff against the other claims made by the plaintiffs against the defendant.

16. Mr Horowitz objected to the defendant being able to make this claim, essentially on the basis that it had not been made until now. It should have been made earlier, and he was not in a position to deal with it today.

17. The defendant did not provide any documents or other material in support of the claim, although he said that he had provided this material ‑ including photographs and receipts ‑ to his former solicitors.

18. I ruled that the defendant should not be permitted to make this claim. In my view, the defendant has had ample opportunity to make this claim if he wished, and it would not be in the interests of justice to allow it to be made now, in circumstances where an adjournment of the hearing would be necessary.

19. I proceed now to consider each of the issues for determination. It is convenient to do this, broadly, by reference to the orders which are sought by the plaintiffs.

20. It is important for the parties to understand that the role of the Court is to determine the issues on the evidence placed before the Court. I am satisfied that the parties have each been given an adequate opportunity to bring forward any claims which they wish, and any evidence in relation to those claims.

21. I should also deal at the outset with an aspect of the defendant's overarching contention, that he had been tricked by his sister, and wanted the Court to allow him to return to his own home. It is important for the defendant to realise that even on his best case set out in the cross‑claim, the plaintiffs are 29% co‑owners of the Property. On this basis alone, the plaintiffs were entitled to orders for the appointment of trustees for sale, as was accepted by the solicitor for the defendant on 21 March 2025, when I made the orders appointing the trustees for sale. It is thus not possible for the Court to order that the defendant be permitted to return to reside in his home.

The Ownership Interests in the Property

22. The plaintiffs contend that the respective interests in the Property are as recorded on the title ‑ the plaintiffs collectively as to 50% and the defendant as to 50%.

23. By his cross‑claim, the defendant contends that the respective interests are, in broad terms, the defendant, essentially, 71% and the plaintiffs (cross‑defendants), essentially, 29%.

24. The essence of the claim made by the defendant in the cross‑claim is that his sister engaged in unconscionable conduct. This is premised on the fact that the defendant had, and continues to have, very limited English skills, and wholly relied on and trusted the information provided to him by his sister (who then apparently held a power of attorney from the defendant). It is contended that the defendant relied upon his sister in signing the relevant documents, and never, in fact, agreed to, nor intended to transfer, a half‑share in the Property to the plaintiffs’ daughter.

25. The evidence discloses that on or about 10 December 2018, the defendant transferred to the plaintiffs' daughter a one‑half share of the Property. The defendant put into evidence a statutory declaration made by him dated 11 October 2018 which records that the plaintiff's daughter (the defendant's niece) had paid to the defendant $400,000 for the purchase of 50% of the Property. The statutory declaration goes on to record that the $400,00 will be used for the following purposes:

A Pay out and cancel the line of credit facility with Commonwealth Bank of Australia approximately $30,000.00;

B Pay my ex‑wife pursuant to Family Court Orders dated 28 August 2018 the sum of $257,500.00;

C Pay legal costs of approximately $11,000.00;

D Pay Stamp Duty of $15,760.00;

E Pay the HELP debt of Francesca Tran in the amount of $25,909.90;

F Pay Thi Mai Tran the sum of $53,830.10;

G Lender fees and charges of approximately $6,000.00.

26. I will return to the statutory declaration shortly.

27. The first plaintiff gave evidence of a discussion with the defendant in May 2021 to the effect that she was going to take over her daughter's share of the Property. She and her husband then entered into a contract with their daughter to buy her share for $400,000, and a mortgage with the National Australia Bank was taken out for this purpose. Settlement occurred in August 2021.

28. The essence of the defendant's unconscionable conduct claim ‑ as confirmed by him in the evidence which he gave before me today ‑ is that he was tricked by his sister into parting with a 50% share in 2018 in circumstances where he only received money, or had money paid for his benefit, entitling his niece to an approximately 29% share of the Property.

29. An essential aspect of the evidence given by the defendant was that he did not understand the statutory declaration that I have referred to above, and only agreed to (A), (B) and (C), contained in it, and not otherwise. I am not satisfied that the defendant has made good his unconscionable conduct claim. The statutory declaration is clear on its face as conveying a 50% interest. The defendant's signature to the statutory declaration is witnessed by Mr Vincent Margiotta (Mr Margiotta), who is recorded in the certificate to the statutory declaration as a Justice of the Peace, but is also a solicitor. The defendant agreed that Mr Margiotta acted for the defendant in the transaction with his niece. The plaintiff also tendered a tax invoice from Mr Margiotta, addressed to the defendant, dated 23 November 2018.

30. The narrations to the invoice read:

To our costs in attending upon you; in taking instructions; in organising valuation of the property; in preparing the Contract for Sale; in preparing the Transfer document and attending upon you to sign same and thereafter forwarding the Transfer to J. A. Buda & Associates for their attention; in attending upon you to sign the Discharge Request Form with the Commonwealth Bank; in forwarding the discharge request form to the Commonwealth Bank for their attention; in arranging discharge with the mortgage with the Commonwealth Bank;

Attending upon you in the presence of a certified interpreter to explain the mortgage documents to you, our costs greatly …

31. The invoice also includes a number of disbursements, including for interpreters' fees.

32. I am thus not satisfied that there is any basis to disturb what appears to be the case on the face of the statutory declaration that the defendant sold 50% of the Property to his niece. I am thus not satisfied that there is any basis to disturb the percentage interests recorded on the title to the Property. This conclusion also means that the cross‑claim should be dismissed. There is no reason why costs should not follow the event.

Costs of the Summons

33. The plaintiff seeks an order that the parties' costs of and incidental to the summons (excluding the cross‑claim) be paid from the proceeds of sale of the Property. This is a standard order in proceedings of this nature, and I see no reason why it should not be made.

Failure to Account for Rent

34. Order 3 sought by the plaintiffs is to the effect that the sum of $11,152.31 be deducted from the defendant's share by the Trustees and paid to the plaintiffs, on account of rent received by the defendant and owing to the plaintiffs.

35. The evidence discloses that in or about 21 June 2021, the defendant commenced to rent out part of the Property to a tenant. At that time, the first plaintiff and the defendant agreed that they would share the rent received from the tenant residing at the Property, with the defendant retaining a small additional amount for outgoings. Between July and November 2021, the defendant paid the first plaintiff $800 every second fortnight as her share of the rent.

36. Between December 2021 and May 2022, the defendant paid the first plaintiff $900 every second fortnight as her share of the rent.

37. Between June 2022 and March 2024, the defendant paid the first plaintiff $700 every second fortnight as her share of the rent.

38. The defendant ceased sharing the rent with the first plaintiff after 15 March 2024. It seems clear, however, that the tenant has continued to reside in the Property, at least until the defendant ceased to reside at the Property on 18 July 2025.

39. The plaintiffs seek payment of their share of the rent for the period from 15 March 2024 to 16 May 2025, being the date the defendant was ordered to vacate the Property. This consists of 15 missed payments of $700 each. Appended to the submissions provided by the plaintiffs is a spreadsheet setting out the calculation of the amount sought.

40. I did not understand the defendant to contend that monies had not been received from the tenant. Rather, I understood the defendant's position to be that he had spent the $11,000 that he referred to in his evidence in relation to demolition works. As noted above, I am not satisfied that it is open to the defendant to run this issue at the hearing today.

41. Accordingly, I see no reason why order 3 sought by the plaintiffs should not be made.

Occupation Fee

42. Order 4 sought by the plaintiffs is to the effect that the sum of $2,700 be deducted from the defendant's share by the Trustees and paid to the plaintiffs, as damages by way of mesne profits for the defendant's occupation of the Property between 17 May 2025 and 18 July 2025.

43. The period 17 May 2025 to 18 July 2025 is the period after which the defendant was ordered to provide vacant possession pursuant to the orders that I made on 21 March 2025, until the date when the defendant was evicted pursuant to the writ of possession on 18 July 2025.

44. In support of the claim the plaintiffs rely upon the decision of the Court of Appeal in Foundas v Arambatzis [2020] NSWCA 47 at 108, as applied by Ward, CJ in EQ (as the learned President then was) in Smith & Hillig v Gao [2021] NSWSC 1016 (Gao) at [46] and following.

45. Having regard to the principles set out in those two cases, I am satisfied that an allowance should be made for rent for the period claimed. The weekly rent claimed is supported by a rental appraisal for the property from Raine & Horne Cabramatta.

46. Accordingly, I propose to make the allowance sought in order 4.

Defendant's Liability for Unnecessary Costs

47. Order 5 of the orders sought by the plaintiffs is to the effect that the defendant's share alone be burdened by those unnecessary costs, remuneration and expenses of the Trustees arising from the defendant's failure to vacate the property by 16 May 2025. In support of this order, the plaintiffs also rely upon what was said by Ward CJ in EQ in Gao at [56] and following.

48. I am not satisfied that it is appropriate to make such an order at this stage. In my view, the appropriate time to make such an order is if the Trustees are instructed in due course that there have been unnecessary costs that have been incurred which should be deducted against the defendant's share.

49. The appropriate course, in those circumstances, is for the trustees to either seek directions to the effect that they would be entitled to deduct those unnecessary costs from the defendant's share ‑ as was the situation in Gao ‑ or to seek an order pursuant to the liberty to apply.

50. I therefore do not propose to make proposed order 5.

Proposed Orders 6 to 8

51. Proposed orders 6 to 8 are to the effect that the cross‑claim be dismissed, that the defendant pay the plaintiffs' costs of the cross‑claim, and that the plaintiffs' costs of the cross‑claim, as agreed or assessed, be deducted from the defendant's share by the trustees and paid to the plaintiffs.

52. As stated above, in light of the conclusions that I have reached, the appropriate order is that the cross‑claim be dismissed, and I see no reason why costs should not follow the event. I also accept that it is appropriate in the circumstances of the present case, to order that the plaintiffs' costs of the cross‑claim be paid out of the defendant's share of the proceeds of the sale, so that the plaintiffs do not suffer the risk that the defendant might put himself in a position where he cannot pay those costs: see Marilyn Joy Lucy Brown v Michael James Brown [2018] NSWSC 41 at [9].

Liberty to Apply

53. As is usual in cases such as this, liberty to apply should be granted, including to the trustees, to apply for any further or consequential orders that may be necessary. This will obviously include, if so instructed, any application by the trustees in relation to any unnecessary costs incurred.

54. The remaining orders sought by the plaintiffs are to the effect that all costs orders may be assessed forthwith, and that these orders be entered forthwith. I am satisfied that it is appropriate for these orders to be made.

55. The orders that I have indicated I will make above have been incorporated in a revised minute of order that was provided to me by counsel for the plaintiffs, shortly prior to my delivering judgment. I am satisfied that the orders handed up are in the form that gives effect to the reasons that I have just given. Accordingly, in my view, it is appropriate to make the orders set out in the orders which I sign and date today's date.

Orders

56. The orders of the Court are:

57. Subject to the orders below, order that the proceeds of the sale of the property located at X Curtin Street, Cabramatta, New South Wales (the Property), following the payment of commission and other expenses of the real estate agent, the legal expenses of the Trustees in respect of the sale, the costs payable to the Trustees pursuant to Order 4 made on 21 March 2025, and any other legitimate expenses of the Trustees, be applied as follows:

(a) 50% to the Plaintiffs, less the amount paid to the National Australia Bank in discharge of the mortgage; and (b) 50% to the Defendant (Defendant's Share).

2. Order that the parties' costs of and incidental to the Summons (excluding the Cross-Claim) be paid from the proceeds of sale of the Property.
3. Order that the sum of $11,152.31 be deducted from the Defendant's Share by the Trustees and paid to the Plaintiffs, on account of rent received by the Defendant and owing to the Plaintiffs.
4. Order that the sum of $2,700 be deducted from the Defendant's Share by the Trustees and paid to the Plaintiffs, as damages by way of mesne profits for the Defendant's occupation of the Property between 17 May and 18 July 2025.
5. Order that the Cross-Claim be dismissed.
6. Order that the Defendant pay the Plaintiffs' costs of the Cross-Claim.
7. Order that the Plaintiffs' costs of the Cross-Claim, as agreed or assessed, be deducted from the Defendant's Share by the Trustees and paid to the Plaintiffs.
8. Grant the parties, including the Trustees, liberty to apply on 2 days' notice for any further or consequential orders that may be necessary in the implementation of these orders and/or the orders made on 21 March 2025, including an order that the Defendant's Share alone be burdened by any unnecessary costs, remuneration and expenses of the Trustees arising from the Defendant's failure to vacate the Property by 16 May 2025.
9. Order that all costs orders may be assessed forthwith.
10. Order that these orders be entered forthwith.

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