Chong v Chanell [2009] NSWSC 765

New South Wales Supreme Court

CITATION : Chong v Chanell [2009] NSWSC 765

HEARING DATE(S) : 19-25 & 28 May 2009 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 25 May 2009

DECISION : Plaintiff entitled to judgement against the first defendant. Plaintiff entitled to a charge over the first defendant's property. Judgment for second defendant. First defendant to pay plaintiff's costs. No order as to costs as between plaintiff and second defendant.

CATCHWORDS : TRUSTS AND TRUSTEES - Plaintiff advances funds from China to first defendant in Australia to be applied in accordance with his directions – where first defendant applies moneys in payment to second defendant and in reduction of her home loan – whether in accordance with instructions of the plaintiff – questions of fact – where first defendant claims plaintiff authorised her application of trust funds – Onus of proof – Held: first defendant bears onus of proof and must account for moneys admittedly received as trustee. - REMEDIES – Tracing – Whether funds transferred from the first defendant to the second defendant can be traced in equity - whether second defendant aware of breach of trust - whether second defendant was a volunteer - whether assets still exist in a traceable form - Held: not established that second defendant aware of breach of trust - plaintiff failed to establish that property still exists in traceable form – Where funds used by the first defendant to pay down her own mortgage - Held: plaintiff entitled to equitable charge over first defendant's property. - RESTITUTION – moneys had and received – tracing – whether in personam remedy available against second defendant – defence of change of position – where second defendant gambled away moneys advanced to him – Held: change of position established – not established that second defendant did not act in good faith - restitutionary remedy not available. - COSTS: Departing from general rule – Bullock order – where effect would be to create asset and corresponding liability of husband and wife who are engaged in family property adjustment proceedings.