Fan v Han [2016] NSWSC 1488

Supreme Court New South Wales

Medium Neutral Citation: Fan v Han [2016] NSWSC 1488 Hearing dates: 21-23 September 2016 Decision date: 25 October 2016 Jurisdiction: Equity Before: White J Decision: Direct counsel for the plaintiff to bring in short minutes of order in accordance with these reasons. Catchwords: CONTRACTS — Plaintiff contends that he and the defendant made an oral agreement following their divorce that the defendant would transfer her interest in the family home to the plaintiff on the plaintiff paying to the defendant an agreed sum of money — Plaintiff asserts that he performed his part of the agreement by borrowing funds to purchase a unit which was acquired solely in the name of the defendant — Defendant did not transfer her share of the family home to the plaintiff — Whether the defendant agreed to transfer her interest in family home to the plaintiff — Agreement that defendant would transfer her interest in family home to the plaintiff not established — Defendant willing to allow plaintiff to acquire a unit on her behalf — Defendant understood unit was not intended as a gift — Alleged agreement unenforceable by virtue of Conveyancing Act 1919 (NSW) s 54A — No acts of part-performance that would displace the operation of s 54A of the Conveyancing Act — Whether alleged agreement contrary to public interest as a binding agreement for the division of matrimonial assets — Alleged agreement not a financial agreement within s 90D of the Family Law Act — Not contrary to public policy EQUITY — Trusts and Trustees — Implied trusts — Resulting trusts — When arising — Plaintiff intended the defendant to have full beneficial ownership of a purchased unit — Plaintiff's intention conditioned on becoming the full beneficial owner of the family home — Presumption that the beneficial ownership of property is held in the proportions in which the parties contributed to the purchase money not rebutted as condition of plaintiff's intention that the defendant have full beneficial ownership not realised — Plaintiff beneficially entitled to a share of the purchased unit proportionate to his contribution to the purchase price Legislation Cited: Conveyancing Act 1919 (NSW) Family Law Act 1975 (Cth) Limitation Act 1969 (NSW) Cases Cited: Baloglow v Konstantinidis [2001] NSWCA 451; (2001) 11 BPR 20,721 Callow v Rupchev [2009] NSWCA 148; (2009) 14 BPR 27,533 Calverley v Green (1984) 155 CLR 242 Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 Currie v Hamilton [1984] 1 NSWLR 687 Forgeard v Shanahan (1994) 35 NSWLR 206 Ingram v Ingram [1941] VLR 95 Regent v Millett (1976) 133 CLR 679 Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,497 Senior v Anderson (2011) 250 FLR 444 Shephard v Cartwright [1955] AC 431 Sivritas v Sivritas (2008) 23 VR 349 Category: Principal judgment Parties: Yi Jun Fan (Plaintiff) Rui Han (Defendant) Representation: Counsel: A Macauley (Plaintiff) A Gruzman (Defendant)