Kwan v Kwan [2008] NSWSC 465

New South Wales Supreme Court

CITATION : Kwan v Kwan [2008] NSWSC 465

HEARING DATE(S) : 14/04/2008, 15/04/08

JUDGMENT DATE : 8 July 2008

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

CATCHWORDS : Equity. Trusts. Resulting trusts in respect of use by mother of son's interest in property. - Family Provision. Application by son. Majority of estate transferred to another son before date of death. Order for provision and designation of property as notional estate.

PARTIES : Tony Thomas Kwan v Kent Benjamin Kwan

FILE NUMBER(S) : SC 3444/2006

COUNSEL : Mr J Loofs for plaintiff Mr D Alexander for defendant

SOLICITORS : Craddock Murray Neumann for plaintiff Lai & Co for defendant

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

Associate Justice Macready

Tuesday 8 July 2008

3444/06 - TONY THOMAS KWAN v KENT BENJAMIN KWAN JUDGMENT 1 HIS HONOUR: This is the hearing of proceedings in which the plaintiff seeks to enforce trusts in respect of various properties which had been held in the family that was constituted by the plaintiff, his mother and his brother, the defendant. In the event that such claim is unsuccessful the plaintiff also claims under the Family Provision Act 1982 in respect of the estate of his mother Eppie Mei Luen Kwan who died on 4 January 2005. Family History 2 The deceased and her husband met in 1959 and they were married in Hong Kong in April 1961. In 1963 they moved to the Solomon Islands and set up a trading store. They had three children Josephine Ruhlum Cavedon, born April 1965 and now resident in Switzerland; the plaintiff Tony Thomas Kwan born December 1966 and the defendant Kent Benjamin Kwan born February 1970. 3 In 1976 the family moved to Australia from the Solomon Islands in order to avoid the approaching independence of that country. Before the move the deceased had come to Australia on a visit. As a result she and her husband had arranged the purchase in 1973 of a property at Boonal Street, Baulkham Hills. 4 Shortly after their arrival they moved to and purchased a property at Parraweena Road, Baulkham Hills. In 1981 the deceased and her husband purchased a property at Donald Street, North Ryde and the family moved there in 1982. The deceased and her husband separated in the same year. She and the children remained at Donald Street and her husband moved to live at their rented Chinese take away shop. 5 On 27 July 1984 the deceased and her husband entered into a maintenance agreement which was a deed under s 86 of the Family Law Act 1975. At that stage the deceased and her husband owned four premises.