Supreme Court New South Wales Medium Neutral Citation: Tingting Wang v Chun Kai Yang [2022] NSWSC 1757 Hearing dates: 16 December 2022 Date of orders: 16 December 2022 Decision date: 16 December 2022 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Plaintiff's summons dismissed; Plaintiff to pay Defendant's costs of the proceedings Catchwords: LAND LAW – Caveats – Caveatable interest – Serious question to be tried – Balance of convenience – Summons must seek final relief – No issue of principle Legislation Cited: Real Property Act 1900 (NSW) Category: Principal judgment Parties: Tingting Wang (Plaintiff) Chun Kai Yang (Defendant) Representation: Counsel: C Fung (Plaintiff) (Solicitor) K Dyon (Defendant) Solicitors: Prudentia Legal (Plaintiff) Katsikaris Family Lawyers (Defendant) File Number(s): 2022/377125 Publication restriction: Nil EX TEMPORE Judgment (REVISED) 1. HIS HONOUR: The plaintiff (Ms Wang) and the defendant (Mr Yang) are married but now separated. This judgment disposes of an application by Ms Wang for the extension of a caveat which she has lodged over a property at Marsfield (the property) of which Mr Yang is the sole registered proprietor. 2. Mr C Fung, Solicitor, appeared for Ms Wang. Ms K Dyon of Counsel appeared for Mr Yang. 3. The essential background facts were not in dispute for the purposes of today's application. Mr Yang is the sole registered proprietor of the property, which is encumbered by a registered mortgage to the Commonwealth Bank of Australia. Mr Yang purchased the property in or around September 2005. That was well before he met Ms Wang. Ms Wang and Mr Yang commenced a relationship in around November 2011, commenced cohabiting in 2013 and married in Australia in May 2015. There are two children of their relationship. They separated in late 2021, and I was informed by Ms Dyon that her client has documents prepared for the purposes of shortly commencing family law proceedings to bring the marriage to a legal end. 4. Turning to contested matters, it appears from the evidence that for a considerable period of time Mr Yang did not reside with Ms Wang in the property. Ms Wang's claim is that from early 2015 there was a joint bank account established to make mortgage payments in respect of the property, and for other expenses to be met in relation to the family. Mr Yang, through an affidavit sworn by his solicitor, disputes that Ms Wang contributed to the mortgage repayments. Ms Wang also alleges that she was responsible for overseeing substantial renovations to the property, the costs of which she alleges were paid jointly by herself and Mr Yang. 5. Ms Wang's caveat (the caveat) claims an estate in fee simple (Ms Dyon took no point about that description) by virtue of "beneficial interest in trust". The "details supporting the claim" in the caveat are "resulting trust and/or constructive trust". Mr Yang has issued a lapsing notice in respect of the caveat, and the parties agree that the caveat, in the absence of order otherwise, will lapse next Wednesday, being during the first week of the Court vacation. 6. The Court will dismiss the summons for the following reasons. 7. First, the summons is itself defective, as it claims no final relief. That is sufficient to justify the dismissal of the summons, however there are more substantial problems with her claim which Ms Wang has failed to overcome. 8. Second, the "details supporting the claim" are wholly inadequate. No information of the kind usually annexed to a caveat is given about the primary facts relied on to make out the alleged trusts. 9. Third, recalling that what she must demonstrate for the purposes of obtaining an extension of the caveat, being in the nature of an interlocutory injunction, is that Ms Wang has a claim to an interest in the property which "has or may have substance" (Real Property Act 1900 (NSW), s 74K), it seems to me there is a fundamental difficulty in her way. As Ms Dyon submitted, that difficulty is that Mr Yang purchased the property with his own funds and subject to a mortgage for which he was solely liable, several years before their relationship began. This is not a case where a couple entered into the purchase of a property together and both parties to the extant relationship made payments or other contributions but only one was registered as the proprietor. 10. The fourth problem follows from that. While it might be accepted that Ms Wang may have an action for some kind of compensation in relation to the contributions she says she has made, and no doubt those contributions would in any event have to be taken into account in any family law proceedings, Ms Wang's evidence does not go so far as to establish a proper basis to raise a seriously arguable question as to how, whatever contributions she made, give her an interest in the property. 11. Ms Wang offers no evidence of any conversations, or any other arrangements that might support an interest in the property being found in equity, by reason of whatever contributions she may have made to the mortgage, or the improvement of the property, years after it had been purchased. Her case as put to the Court today seems to rise no higher than she made the payments in the course of a relationship which became a marriage. That is not sufficient in and of itself to support the inference of a mutual intention that she was to obtain an interest in the property. 12. In reaching that conclusion, it must be remembered that I am not making a final finding of fact. Those are matters which will no doubt have to be ventilated and properly proven in the family law proceedings. Ms Wang's difficulty, for present purposes, is that, in my respectful view, the evidence she has filed, such as it is, does not disclose a sufficiently arguable case of such an interest in the property by reason of whatever contributions she has made. 13. Looking at the matter beneficially to Ms Wang, and assuming for the sake of the argument that she had demonstrated even a weak question to be tried, I would nevertheless have dismissed the summons on the balance of convenience. That is because Mr Yang has provided evidence through his solicitor that he currently owes debts to the Australian Taxation Office (ATO), and expects further such debts, so that he will have obligations of at least $360,000 to the ATO, and his only means of satisfying that is from dealing with the property. As the sole registered proprietor and mortgagee of a property bought a number of years before their relationship began, the balance of convenience favours Mr Yang being entitled to deal with the property and satisfy his debts. 14. Finally, while I note that the caveat, correctly, did not assert any interest by reason of pending family law proceedings, it is plain that the proper venue for the dispute between these two parties, and the resolution of their respective interests, is in the Federal Circuit and Family Court of Australia. 15. The orders of the court are: 1. Summons dismissed. 2. The plaintiff to pay the defendant's costs of the proceedings. ********** Amendments 19 December 2022 - Name of solicitor for the Defendant changed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2022