Tan v Tan [2009] NSWSC 976

New South Wales Supreme Court

CITATION : Tan v Tan [2009] NSWSC 976

HEARING DATE(S) : 10/09/09

JUDGMENT DATE : 10 September 2009

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 10 September 2009

1. Make orders in accordance with the short minutes of order signed by the parties and their solicitors, initialled and dated today by his Honour and placed with the papers; DECISION : 2. Order that the plaintiffs' statement of claim be otherwise dismissed; 3. Direct the Registrar to send a copy of the judgment of today's date to the Commissioner of Taxation.

CATCHWORDS : PROCEDURE - judgments and orders – court asked to make consent orders to dispose of proceedings – prima facie evidence that plaintiff transferred money to reduce tax bill without suggesting lawful explanation as to how tax would thereby be reduced – consent orders made – direction made that judgment be sent to Commissioner of Taxation

CASES CITED : Carantinos v Magafas [2008] NCWCA 304

Pearlita Socorro Sison Tan & 1 Or PARTIES : v Lester Simon Sison Tan

FILE NUMBER(S) : SC 1187/09

COUNSEL : Plaintiffs: A Fernon Defendant: L Fermanis

SOLICITORS : Plaintiffs: Low Doherty & Stratford Defendant: Berrigan Doube Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WHITE J

Thursday, 10 September 2009

1187/09 Pearlita Socorro Sison Tan & 1 Or v Lester Simon Sison Tan JUDGMENT 1 HIS HONOUR: In these proceedings, the plaintiffs sought declarations that their son, the defendant, holds funds previously contained in a Citibank Term Deposit account number 9014661206 and in a BankWest Term Deposit account number 973003575-5 in the defendant's name on trust for them. They also sought injunctions restraining the defendant from dealing with those funds. Interlocutory injunctions were made on 21 January 2009 and 3 February 2009. 2 The moneys formerly held in the BankWest Term Deposit have been repaid to the plaintiffs. Pursuant to orders made on 3 February 2009, moneys formerly in the Citibank Term Deposit account (which had been transferred by the defendant to an ANZ Bank in his own name) have been transferred to a trust account of his solicitor's. 3 These proceedings were listed for hearing today of the claims for final relief. Pursuant to the usual procedures, affidavits were filed and objections to affidavits were notified. I have read the affidavits. 4 This morning the parties announced that they had reached a settlement of the proceedings. They asked the court to make orders by consent to dispose of the proceedings. Ordinarily no question would arise when the court is asked to take that course. 5 The parties have agreed to orders that the defendant deliver to the plaintiffs a cheque for the moneys held by his solicitors together with any accrued interest; that the defendant pay the plaintiffs' costs in the nominal sum of $1; and the defendant's cross-claim be dismissed. I understand that the plaintiffs' statement of claim is to be otherwise dismissed. 6 The only issue that troubles me concerns the evidence of the first plaintiff in her affidavit of 20 January 2009 filed in support of the summons concerning the plaintiffs' purpose in investing their moneys in their son's name. I should say that the evidence shows that the defendant, who is in his early twenties, has not derived any substantial income. The first plaintiff deposed that sometime prior to 28 December 2007, she said to the defendant: " We have transferred $100,659.83 of our moneys into your account. We want to invest our moneys into a term deposit but we want the term deposit in your name. I only want it in your name to reduce tax from the income that will be earned from it. Citibank have quoted me 7.75% for 6 months. Telephone your relationship manager and find out the best rate from him. "