Szeto v Situ [2017] NSWCA 136

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Szeto v Situ [2017] NSWCA 136 Hearing dates: 16 May 2017 Date of orders: 15 June 2017 Decision date: 15 June 2017 Before: Bathurst CJ at [1]; Macfarlan JA at [35]; Leeming JA at [36] Decision: 1. Appeal allowed.

2. Set aside the orders made by the primary judge.

3. Order a retrial of the proceedings before a judge nominated by the Chief Judge of the Equity Division.

4. Order the respondent pay the appellant's costs of the appeal and have a certificate under the Suitors' Fund Act 1951 (NSW) if eligible.

5. Costs of the proceedings in the Court below abide the outcome of any new trial. Catchwords: EQUITY – residential property purchased in name of respondent using loan moneys acquired on the application of appellant and respondent siblings – appellant alleged oral agreement that property would be held beneficially in equal shares – entitlement asserted on the basis of an unconscionable denial of interest under Muschinski v Dodds (1986) 160 CLR 583 and/or on the basis of a resulting trust under Calverley v Green (1984) 155 CLR 242 – absence of direct, corroborative evidence – whether primary judge erred in declaring that the appellant had no right, title or interest in the property – whether primary judge erred in preferring the evidence of the respondent and his wife over that of the appellant – whether primary judge erred in giving significance to differences in the interest failing to have regard to documentary evidence that appellant contributed to purchase price – whether primary judge should have accepted that a letter prepared by respondent's solicitor constituted an "admission" of appellant's interest Legislation Cited: Suitors' Fund Act 1951 (NSW) Cases Cited: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3 Category: Principal judgment Parties: Livy Szeto (Appellant) Liming Situ (Respondent) Representation: Counsel: I Tam / T Yeh (Appellant) R Cavanagh SC / P Cutler (Respondent)