Zhang v Metcalf; Metcalf v Zhang [2020] NSWCA 228

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Zhang v Metcalf; Metcalf v Zhang [2020] NSWCA 228 Hearing dates: 27 August 2020 Decision date: 23 September 2020 Before: Gleeson JA at [1] Payne JA at [139] White JA at [140] Decision: (1) Appeal allowed in part as to ground 4. (2) Appeal otherwise dismissed. (3) Cross-appeal dismissed. (4) Vary orders 2, 3, 4 and 5 made by the primary judge on 19 December 2019 by: (a) deleting all references to the figure "$447,899.38" and inserting in its place the figure "$422,709"; (b) deleting all references to the figure "$469,712.78" and inserting in its place the figure "$443,010.95"; (c) deleting the reference to the figure "$26,587.52" and inserting in its place the figure "$25,076.07"; (d) extending the date in order 5 from "5 February 2020" to "7 October 2020"; such that orders 2, 3, 4 and 5 as amended, with effect from 19 December 2019, are as follows: (2) Declare that: (a) the Plaintiff as against the Defendant is entitled to an award in the sum of $422,709.00 on his claim for the balance of his entitlement to such net proceeds of sale; and (b) the Defendant as against the Plaintiff is entitled to an award in the sum of $4,774.12, on her claim for an account for the benefits flowing from her advance of $60,000 to the mortgage offset account in respect of the said land. (3) Judgment and order for the Plaintiff against the Defendant in the sum of $443,010.95 comprising: (a) the balance of the awards in 2(a) and (b) above, namely $417,934.88; and (b) interest on such balance from 16 September 2016 up to judgment but only for three years for the reasons indicated at the rate of 2% per annum, namely $25,076.07. (4) Order that the Freezing Order of the Court made in proceedings 2016/371835 on 12 or 15 December 2016 be varied only so as to enable funds in the sum of $443,010.95 to be paid or transferred to the Plaintiff from [account No. 1856]. (5) Order that the Defendant take any necessary steps and sign all necessary documents to procure the payment of such sum of $443,010.95 into the Trust account of the solicitors for the Plaintiff by 4.00 pm on 7 October 2020. (5) No order as to costs of the appeal or cross-appeal, to the intent that the parties bear their own costs of the proceedings in this Court. Catchwords: EQUITY – trusts and trustees – resulting trusts – purchase money trusts – where de facto partners purchased commercial property as tenants in common in equal shares – whether presumption of resulting trust rebutted – where contemporaneous deed evidencing actual intention of parties to hold property beneficially in equal shares – appropriate division of net sale proceeds of the commercial property EQUITY – trusts and trustees – resulting trusts – purchase money trusts – where de facto partners purchased residential property as joint tenants – whether presumption of resulting trust rebutted – whether constructive trust arising after purchase of property – significance of conduct of parties after purchase Legislation Cited: Civil Procedure Act 2005 (NSW), ss 29, 30, 98 Conveyancing Act 1919 (NSW), s 66G Family Law Act 1975 (Cth) Property (Relationships) Act 1984 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Black Uhlans Incorporated v New South Wales Crime Commission [2012] NSWSC 1060 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 Bryson v Bryant (1992) 29 NSWLR 188 Calverley v Green (1984) 155 CLR 242 Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353; [1956] HCA 28 CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Currie v Hamilton (1984) 1 NSWLR 687 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Equuscorp Pty Ltd v Glengallen Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 Ferguson v Hyndman [2006] NSWSC 538 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 Isbester v Knox City Council (2015) 255 CLR 135; [2019] HCA 20 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Lee v Lee [2019] HCA 28; (2019) 372 ALR 383 Micallef v ICI Operations Pty Ltd [2001] NSWCA 274 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Morris v Morris (1982) 1 NSWLR 61 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Napier v Public Trustee (WA) (1980) 32 ALR 153; 55 ALJR 1 Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19497 West v Mead [2003] NSWSC 161; [2003] 13 BPR 24431 Category: Principal judgment Parties: Lijuan Linda Zhang (Appellant / Cross-Respondent) Lex Metcalf (Respondent / Cross-Appellant) Representation: Counsel: In person (self-represented) (Appellant / Cross-Respondent) G W McGrath SC (Respondent / Cross-Appellant)