Saba v Xu [2004] NSWSC 858

Reported Decision : (2004) DFC 95-299

New South Wales Supreme Court

CITATION : Saba v Xu [2004] NSWSC 858 HEARING DATE(S) : 11 and 12 November 2003, 14 and 15 April 2004 JUDGMENT DATE : 28 September 2004 JURISDICTION: Equity Division JUDGMENT OF : Master McLaughlin at 1 DECISION : (1) I stand the proceedings over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes and, if desired, for argument as to costs.

CATCHWORDS : Family Law. - De facto relationship. - Whether or not such a relationship existed. - Marriage contracted by Plaintiff during the course of alleged de facto relationship. - Whether such marriage was a contrived marriage. - De facto relationship was of a short duration. - Respective contributions of parties. LEGISLATION CITED : Property (Relationships) Act 1982 (New South Wales) Baumgartner v Baumgartner (1987) 164 CLR 137 CASES CITED : Davey v Lee (1990) 13 FamLR 688 Muschinski v Dodds (1985) 160 CLR 583 PARTIES : Louis Saba Ai Ying Xu FILE NUMBER(S) : SC 3113/02 COUNSEL : Ms P. Carr (Plaintiff) Ms P. Nash (Defendant) SOLICITORS : Carters Law Firm (Plaintiff) J Kartsounis & Co (Defendant)

- 32 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 28 September 2004

3113/02 LOUIS SABA -v- AI YING XU

JUDGMENT 1 MASTER: By statement of claim filed on 12 June 2002 the Plaintiff Louis Saba claims relief pursuant to the Property (Relationships) Act 1982 and relief in respect to an asserted resulting trust and in respect to an asserted constructive trust. On 11 November 2003, Justice Palmer, by consent, ordered that the claims of the Plaintiff in respect to such trusts be heard and determined before a Master. 2 The Plaintiff asserts that he was in a de facto relationship with the Defendant Ai Ying Xu from about May 1999 until 17 March 2002. During that period a house property situate at and known as 22 Koala Road, Greenacre ("the Greenacre property") was purchased in the name of the Defendant. The purchase price of $224,000 was, according to the Plaintiff, funded by contributions from the Plaintiff by way of loans obtained by him from his sister Lina Chami of $27,947.88 (towards the purchase price) and $2,168.10 for stamp duty, and by way of a contribution of $20,000 from the Defendant. The balance of the purchase price was raised by way of a housing loan from Perpetual Trustees of Victoria Limited, secured by mortgage, in an amount of $178,075.50. 3 According to the Plaintiff, shortly before the exchange of contracts on the purchase of the Greenacre property, the Plaintiff, at the behest of the Defendant, agreed that the property would be registered in the name of Defendant alone. That was, in fact, done, the Defendant being registered as proprietor and as mortgagor. 4 The Defendant concedes that from May 1999 to 9 August 2001, the Plaintiff resided with her at rented premises at 7/55 Fairmont Street, Lakemba, and subsequently, from 9 August 2001 to 17 March 2002 at the Greenacre property. The Defendant's son was residing with her throughout those periods. The Defendant, however, denies that she and the Plaintiff ever lived in a de facto relationship. 5 It is asserted by the Plaintiff that he made financial contributions towards the purchase of the Greenacre property, that he purchased various items of furniture and other household chattels for that property, and that he contributed his personal efforts towards renovations and improvements of that property. 6 The Plaintiff did not pay any rent or occupation fee whilst he was residing with the Defendant in the Greenacre property. However, he asserts that he contributed towards the household expenses. 7 At the commencement of the alleged relationship the Plaintiff, who stated that his occupation was that of a self-employed handyman, was in receipt of benefits from Centrelink, in an amount of $376 a fortnight (I assume some form of a disability benefit). He also performed light duties and casual work at a service station at Campsie, for which he alleged that he earned up to $400 - $500 a week. The Plaintiff said that he had been involved in two motor vehicle accidents, on 25 August 1995 and 21 March 1998, and in a work related accident on 23 June 1998. 8 At the time when he commenced to reside with the Defendant the only substantial asset of the Plaintiff was an expectation that he would receive a lump sum payment as compensation for the injuries which he had sustained as a result of the foregoing accidents. 9 According to the Plaintiff, at the time when they commenced to reside together he provided furniture and furnishings for himself and for the Defendant. Those items of furniture and furnishings included a new bedroom suite, a new refrigerator, a new large television and a smaller older television, a smaller television stand, a sound system, and a microwave oven. The costs of those various items are set forth in the statement of claim. 10 According to the Plaintiff, he was enabled to make the foregoing contributions towards the residence of himself and the Defendant as a result of borrowings from his sister Lina Chami. 11 It was the evidence of the Plaintiff that whilst he and the Defendant were residing in the Lakemba property (in which he said that he had previously been residing before she moved in) the Plaintiff paid the totality of the rent, in an amount of $140 a week. Originally the lease of that property was in the name of the Plaintiff. However, as will later emerge, the terms of that lease were subsequently altered to show the Defendant as lessee. It was not in dispute that it was the Plaintiff who had paid the rental bond.