Chao v Chao (No 3) [2008] NSWSC 1166

New South Wales Supreme Court

CITATION : Chao v Chao (No 3) [2008] NSWSC 1166

HEARING DATE(S) : 8-15 May; 26 August 2008

JUDGMENT DATE : 4 November 2008

JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

Plaintiff is beneficial owner of house, pursuant to common intention trust, or alternatively pursuant to resulting trust. Plaintiff is liable to account to defendant for unreimbursed balance of his expenditure, charged on property. $190,000 drawdown was transaction of defendant exclusively for his account. Extension of home loan for Ferrari was transaction of defendant exclusively for his account, to which plaintiff did not consent. Defendant is responsible to exclusion of plaintiff for whole of amount presently secured, and is bound to indemnify plaintiff in respect of, and procure discharge of, mortgage. 1. Declare that defendant holds property upon trust for plaintiff, but subject to charge securing to defendant principal sum of $140,896.77 and interest at 10% per annum from 1 November 1999 which as at this date amounts to $126,807.09, totalling $267,703.86. 2. Declare that defendant is bound to indemnify and keep indemnified and exonerate plaintiff and property in respect of all liability under mortgage. DECISION : 3. Order that within 42 days (or such further time as parties may agree): 3.1 plaintiff pay defendant said sum of $267,703.86; 3.2 defendant procure discharge of Mortgage and execute and deliver to plaintiff transfer in registrable form to her of all his right title and interest in and to property, unencumbered. 4. Reserve liberty to apply. 5. Order that defendant pay plaintiff's costs.