Lioe v Davidson [2019] NSWSC 721

Supreme Court New South Wales

Medium Neutral Citation: Lioe v Davidson [2019] NSWSC 721 Hearing dates: 12 and 13 June 2019 Date of orders: 13 June 2019 Decision date: 13 June 2019 Jurisdiction: Equity Before: Pembroke J Decision: Judgment for plaintiff Catchwords: EQUITABLE CHARGE – imposed to secure repayment of indebtedness – principles applicable – flexible Cases Cited: Tadrous v Tadrous [2012] NSWCA 16 Category: Principal judgment Parties: Rita Lestari Lioe – plaintiff Leonard Davidson – first defendant Lelly Mariana Purwa – second defendant Representation: Counsel: Mr V Bedrossian with Ms A Smith – for the plaintiff Mr S O'Brien with Mr C Street – for the first and second defendants

Solicitors: Kydon Segal Lawyers – for the plaintiff Fusion Legal – for the first and second defendants File Number(s): 2018/296907

Judgment

Introduction 1. The plaintiff claims an order for the repayment of approximately $280,000 plus interest together with an equitable charge to secure that sum over an apartment property at Zetland. The registered proprietor of the property is the first defendant. The second defendant is his mother. There is no dispute about the amount of $96,893.62. The defendants consented to judgment in that amount on the first day of hearing without prejudice as to their submissions as to interest or the claimed equitable charge. 2. The remaining factual dispute relates to whether there has been satisfactory proof that the plaintiff paid the balance of the moneys to the defendants, or one of them. For reasons that I will explain, I am quite satisfied, whatever the amount, that the known or agreed purpose of the payments by the plaintiff was to assist directly or indirectly with the purchase and possibly the maintenance, of the Zetland property. I am satisfied that the first defendant knew of that purpose. 3. There were only two satisfactory witnesses. They were Mrs Rosemary Tang and her daughter, Elena Loh. They had no financial interest in the outcome and were clearly independent. Both were articulate and intelligent. I thought both were entirely honest and credible. Their evidence, taken together with the proved facts and the sequence of events, is decisive in determining what is more likely than not, having regard to the realistic probabilities. They support the plaintiff's claim. It is not possible to discount or disregard their evidence on any logical or reasonable basis.