Le v Le [2023] NSWSC 622

Supreme Court New South Wales

Medium Neutral Citation: Le v Le [2023] NSWSC 622 Hearing dates: 22-29 May 2023 Date of orders: 13 June 2023 Decision date: 13 June 2023 Jurisdiction: Equity Before: Darke J Decision: Proceedings ordered to be dismissed, with costs. Order made for plaintiff to withdraw caveat. Catchwords: EQUITY – trusts and trustees – constructive trusts – common intention – where plaintiff alleges existence of oral agreements whereby his now deceased step-father agreed to give him $100,000 to assist with the purchase of a property and agreed to purchase the property to be held on trust for him – alleged oral agreements not made out on the balance of probabilities – common intention constructive trust not established – claim dismissed Legislation Cited: Evidence Act 1995 (NSW), ss 128, 140 Cases Cited: Bovaird v Frost [2009] NSWSC 337 Plunkett v Bull (1915) 19 CLR 544 Shepherd v Doolan [2005] NSWSC 42 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: Vince Le (Plaintiff) Thi Thon Le (First Defendant) Van Nem Nguyen (Second Defendant) Representation: Counsel: Mr P Lonergan (Plaintiff) Mr J R B Pearson (First Defendant)

Solicitors: Kammoun Sukari Lawyers (Plaintiff) Quy Lawyers (First Defendant) File Number(s): 2021/00039719 Publication restriction: None

Judgment

Introduction 1. This case concerns the ownership of a property at 20 Garden Street, Mount Pritchard ("the Property"). The plaintiff, Vince Le (sometimes known simply as Tam), seeks a declaration that the first defendant, Thi Thon Le, holds it on trust for him. The first defendant is the plaintiff's mother. She is also the administrator of the estate of her late husband, Cong Thanh Huynh who died on 1 April 2018. He remains the registered proprietor of the Property. Cong Thanh Huynh will henceforth be referred to as "the deceased". The deceased was the step-father of the plaintiff. 2. The Property was acquired by the deceased on about 31 August 2012. The plaintiff claims that this occurred pursuant to two agreements he made in 2012 with the deceased whereby the deceased: 1. agreed to give $100,000 to the plaintiff to assist him in purchasing a property; and 2. agreed to purchase the Property, to be held in the deceased's name, but beneficially owned by the plaintiff who would make all repayments due pursuant to a mortgage over the Property, and pay all outgoings and other liabilities in respect of the Property. 1. The alleged agreements are oral agreements said to have been made in early 2012 and about mid-2012 respectively. 2. The plaintiff commenced the proceedings on 11 February 2021 by the filing of a Summons. Orders were made on 12 February 2021 and 11 March 2021 extending the operation of a caveat (AQ 418410) the plaintiff had lodged against the title to the Property in October 2020. The latter order extended the operation of the caveat until further order. 3. The plaintiff filed a Statement of Claim on 8 April 2021, and the first defendant filed a Defence on 22 April 2021. The plaintiff filed a further Statement of Claim on 9 June 2022, that deleted a claim for a family provision order under the Succession Act 2006 (NSW), and introduced new claims against a second defendant (Van Nem Nguyen). The claims against Van Nem Nguyen were resolved prior to the final hearing. For simplicity, the first defendant will henceforth be referred to as "the defendant". 4. The plaintiff no longer presses two of the claims that are pleaded in the Statement of Claim. These are the claim in contract and the proprietary estoppel claim. Of the remaining claims, the principal one is that the Property is the subject of a common intention constructive trust (see Shepherd v Doolan [2005] NSWSC 42 at [30]-[40] per White J, as his Honour then was). 5. It is alleged that in or about mid-2012 the plaintiff and the deceased formed the common intention that: (a) the Property would be purchased for the Plaintiff; (b) the Deceased would: (i) obtain a loan and mortgage in his name; and (ii) put the Property in his name; (c) the Plaintiff would make the mortgage repayments, and pay other outgoings in relation to the Property; (d) the Property would be owned by the Plaintiff, and would be held by the Plaintiff in name only; (e) the Deceased would convey the Property to the Plaintiff upon request that he do so on the basis that he meet the costs. 1. It is further alleged that, in reliance upon the common intention, the plaintiff has acted to his detriment, including by undertaking renovation works at the Property, making payments sufficient to meet the payments due under the mortgage, paying rates and outgoings in respect of the Property, and maintaining and improving the Property. It is alleged that it would be unconscionable in all the circumstances for the defendant, as administrator of the deceased's estate, to deny that the Property is held on trust for the plaintiff. 2. The plaintiff also claims, in the alternative to his principal claim, an equitable charge or a resulting trust. The former claim essentially rests upon the same facts as are alleged in support of the common intention constructive trust claim. The resulting trust claim is essentially based on the contention that the plaintiff contributed the sum of $100,000 towards the purchase of the Property. 3. The defendant denies all of the claims made against her. In short, she contends that the plaintiff has failed to establish, as matters of fact, the alleged agreements and common intention. She contends that the Property is held free of any interest of the plaintiff. 4. The central witnesses in the plaintiff's case are the plaintiff himself, and his partner, Thi Viet Cuc Luu (often referred to as Stephanie Luu, or simply as Cuc). They claim to have been party to discussions with the deceased and the defendant in which oral agreements, concerning a gift of $100,000 to the plaintiff and a purchase of the Property for the plaintiff, are said to have been made. The defendant is the central witness in her case. 5. The alleged oral agreements are said to have been made more than a decade ago, with a person who is now deceased. It is perhaps trite, but nonetheless important, to observe, that claims based on evidence of arrangements made with persons who are now deceased must be closely scrutinised (see Plunkett v Bull (1915) 19 CLR 544 at 548-9 per Issacs J), although it remains the case that the ordinary civil standard of proof (as now embodied in s 140 of the Evidence Act 1995 (NSW)) applies (see Bovaird v Frost [2009] NSWSC 337 at [45] per Brereton J (as his Honour then was)). That the critical conversations occurred so long ago in itself calls for the evidence to be considered with particular care, given the fallibility of human memory (see Watson v Foxman (1995) 49 NSWLR 315 at 319 per McLelland CJ in Eq). 6. The presence or absence of corroborative evidence generally assumes importance in cases of this character. Contemporaneous documentary evidence that corroborates the plaintiff's claims is lacking, although some later documents, including rental agreements and bank statements, are advanced as corroborative of the plaintiff's case. 7. The plaintiff further relies upon the testimony of a number of witnesses who claim to recall events or conversations that are consistent with the existence of the alleged agreements, or the plaintiff's account of events more broadly. Some of these witnesses gave evidence of statements made by the deceased. In many cases, these witnesses gave evidence of events that occurred several years ago. The principles referred to above apply to at least some degree in relation to the evidence given by each of those witnesses, just as they do in relation to the evidence given by the defendant and the witnesses she called in her case. I note that many of the witnesses gave evidence with the assistance of a Vietnamese language interpreter. 8. In addition, it should be noted that the testimony of a number of the witnesses suffered from particular difficulties which led me to conclude that little or no weight could be placed upon the evidence they gave. 9. I have of course endeavoured to consider and weigh the totality of the evidence (having regard to my assessments of each witness) in reaching my conclusions.