Shi v Ou [2009] NSWSC 1471

New South Wales Supreme Court

CITATION : Shi v Ou [2009] NSWSC 1471 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 4 - 5 June 2009 & 9 - 10 December 2009

JUDGMENT DATE : 31 December 2009

JUDGMENT OF : Gzell J

DECISION : Loan made by parents to daughter and her partner. Partner held interest in property in trust for his parents. Judgment debt not enforceable against net proceeds of sale of the property.

CATCHWORDS : CONTRACTS - General Contractual Principles - Offer and Acceptance - moneys provided to daughter and her partner - whether gift or loan - EQUITY - Equitable Doctrines and Presumptions - judgment obtained against daughter and her partner - partner removed from title to property held with his parents - whether partner held his interest in trust for his parents by oral declaration of trust - whether the raising of the need for writing under the Conveyancing Act 1919, s 23C(1)(b) would amount to a cloaking of a fraud - whether judgment debt could be enforced against one third of net proceeds of sale

LEGISLATION CITED : Conveyancing Act 1919 Uniform Civil Procedure Rules 2005

CATEGORY : Principal judgment

Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538 Wratten v Hunter (1978) 2 NSWLR 367 CASES CITED : Barnes v Addy (1874) LR 9 Ch App 244 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1987-1988) 165 CLR 107

Jin Cheng Shi (First Plaintiff) Run Lian Ma (Second Plaintiff) PARTIES : Somnit Ou (First Defendant) Siyong Ou (Second Defendant) Bounxay Phanthavong (Third Defendant)