Duong v Duong [2018] NSWSC 1696

Supreme Court New South Wales

Medium Neutral Citation: Duong v Duong [2018] NSWSC 1696 Hearing dates: 6 and 7 November 2018 Date of orders: 09 November 2018 Decision date: 09 November 2018 Jurisdiction: Equity Before: Pembroke J Decision: Summons dismissed Catchwords: EQUITY – presumption of advancement – mother causes property to be purchased jointly with son – evidence insufficient to rebut presumption Cases Cited: Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Papas v Co [2018] NSWSC 1404 State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 Wilcox v Wilcox [2012] NSWSC 1138 Category: Principal judgment Parties: Tuky Duong - first plaintiff Tuky Duong as representative of the deceased estate of A Mui Ly – second plaintiff Tu Thanh Duong - defendant Representation: Counsel: Mr G A Moore – for the plaintiffs Mr M W Young SC – for the defendant

Solicitors: Sydney Solicitors – for the first and second plaintiff Phoenix Attorneys – for the defendant File Number(s): 2017/191734

Judgment

Introduction 1. The plaintiff and the defendant are sons of the late Mui Ly who died in October 2016. The dispute between them relates to the ownership of a property that their mother caused to be purchased in 1984 in the joint names of herself and the defendant. The title records them as being joint tenants. 2. The plaintiff is the sole beneficiary of the mother's will. The will provides that he should receive the mother's 'entire estate'. If the estate does not include the property, there will be almost nothing for the plaintiff. He contends that the presumption of advancement in favour of the defendant should be rebutted; that I should infer that the mother did not intend the defendant to have a beneficial interest in the property; that the defendant was a mere nominee; and that the defendant should not take the whole of the property in accordance with the right of survivorship following the mother's death. 3. The applicable legal principle in circumstances such as these is well-known and well understood: Calverley v Green [1984] HCA 81; (1984) 155 CLR 242. The principal witnesses were the four children of the mother – the plaintiff and the defendant (born in 1969 and 1965 respectively), their older brother, Cun Tac (born in 1956) and their younger sister Nikki (born in 1975). They were all born in Vietnam, of Chinese heritage and came to Australia as refugees. 4. I have treated the uncorroborated evidence of each of them with reserve. I was not convinced that any of them was entirely reliable on the essential questions. The plaintiff and the defendant each had a vested interest in the outcome and gave competing and irreconcilable accounts. Nikki clearly had an animosity toward the plaintiff and wished to help the defendant. While the eldest son, Cun Tac, wished to support the plaintiff. 5. In a case such as this, the more reliable evidence is the undisputed objective evidence of the events that occurred; the context and sequence in which they took place; and the inferences, having regard to the probabilities, that follow from those events. Only then is it useful to have regard to the contentious assertions of each of the children. Their evidence will be more or less probative depending on the extent to which it is consistent with the inferences to be drawn from the objective facts, their sequence and context and the overall probabilities: State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306; Papas v Co [2018] NSWSC 1404 at [56]-[61]. 6. In addition, all of the principal witnesses gave evidence that the mother said certain things. Such evidence can sometimes be particularly unreliable. As I said in Wilcox v Wilcox [2012] NSWSC 1138 at [10]: … the need for caution is even greater in relation to uncorroborated statements attributed to a deceased person where the deceased is, or would have been, the only person in the world capable of rebutting the accuracy of what is attributed to him or her. Here again, self-interest is an important factor reinforcing the need for caution and sometimes scepticism. A recent statement of this principle was made by Brereton J in Ashton v Pratt (No 2) [2012] NSWSC 3 at [18]: In the case of a claim against a deceased estate founded on the oral utterances of the deceased, which only the deceased could have denied, the court scrutinises the claimant's evidence closely (Plunkett v Ball (1915) 19 CLR 544 at 548-549 (Isaacs J); Bovaird v Frost [2009] NSWSC 337, [45]; Varma v Varma [2010] NSWSC 786, [418]-[422]), and although there is no absolute legal requirement for it, ordinarily looks for some corroboration (Re Hodgson (1886) 31 Ch D 177; Weeks v Hrubala [2008] NSWSC 162, [20] (Young CJ in Eq)). See also Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789 (McLelland CJ in Eq).