Lai See Law by her Tutor the Protective Commissioner of New South Wales v Yan Mo [2009] NSWSC 639

New South Wales Supreme Court

CITATION : Lai See Law by her Tutor the Protective Commissioner of New South Wales v Yan Mo [2009] NSWSC 639

HEARING DATE(S) : 23, 24 and 25 June 2009

JUDGMENT DATE : 15 July 2009

JURISDICTION : Equity

JUDGMENT OF : Bergin CJ in Eq

DECISION : Transfer set aside. Judgment on cross-claim for $154,000

CATCHWORDS : UNDUE INFLUENCE - Whether presumption of undue influence where plaintiff transfers substantial property to defendant/carer for $1 - Whether presumption rebutted - CONTRACT - Whether contract between plaintiff and defendant to transfer property - CROSS-CLAIM - Whether defendant entitled to recover amount for renovations - Whether defendant entitled to recover amount for care provided to the plaintiff

Johnson v Buttress (1936) 56 CLR 113 CASES CITED : Khoury v Khouri (2006) 66 NSWLR 241 Maddison v Alderson (1883) 8 App Cas 467

PARTIES : Lai See Law by her Tutor the Protective Commissioner of New South Wales (Plaintiff) Yan Mo (Defendant)

FILE NUMBER(S) : SC 3215 of 2008

COUNSEL : AJ McInerney (S Robertson) (Plaintiff) P Jeffriess (Defendant)

SOLICITORS : Lee & Lyons Lawyers (Plaintiff) Maxim Legal Pty Ltd (Defendant)

- 1 -

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BERGIN CJ IN EQ

15 JULY 2009

3215 OF 2008 LAI SEE LAW BY HER TUTOR THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES v YAN MO JUDGMENT 1 The plaintiff, Lai See Law, brings proceedings by her tutor, the Protective Commissioner of New South Wales, (known as the New South Wales Trustee and Guardian from 1 July 2009) against the defendant, Yan Mo, for orders including the setting aside of the Transfer of the property at 9 Connemara Avenue, Killarney Heights (the Property) to the defendant in November 2005 for $1 (the Transfer). Although the plaintiff's claim was put on a number of bases the real issue at trial was whether there was undue influence over the plaintiff at the time of the transfer of the Property. 2 The defendant, Yan Mo, brings a cross-claim for an order that, if the Transfer is set aside, the plaintiff should pay her $350,000 representing her indebtedness to Westpac Banking Corporation under a mortgage registered number AC28827L over the Property. The defendant claims that such monies were used to renovate the Property with a view to listing it for sale and to meet the living and medical expenses of the plaintiff, the defendant and her family.