Perry v Gao [2019] NSWSC 1022

Supreme Court New South Wales

Medium Neutral Citation: Perry v Gao [2019] NSWSC 1022 Hearing dates: 24, 25, 27, 28 June 2019 Date of orders: 02 August 2019 Decision date: 02 August 2019 Jurisdiction: Equity Before: Rein J Decision: 1. Plaintiff's gift of the Parramatta Property to the Defendant set aside on grounds of undue influence and, alternatively, unconscionable conduct. Plaintiff thereby entitled to a 50% interest in the Parramatta Property (50% being all that he seeks).

2. In the alternative, Plaintiff able to have the s 90UB Financial Agreement set aside for impracticability pursuant to s 90UM, thus allowing an order to be made pursuant to s 90SM of the Family Law Act 1975 (Cth) that he be entitled to a 50% interest in the Parramatta Property.

3. Trustees appointed for sale of the Parramatta Property pursuant to s 66G of the Conveyancing Act 1919 (NSW). Catchwords: EQUITY – Trusts and trustees – Constructive and resulting trusts – Family and domestic relationships – Where a de facto husband advanced the full purchase price for a house of which the de facto wife became the sole registered proprietor; whether the de facto wife held the property on trust for the de facto husband – Held: there was no trust, as the de facto husband intended to, and did, make a gift of the property to the de facto wife (although the transaction was set aside on other grounds).

EQUITY – Undue Influence – Unconscionable conduct – Special disability or disadvantage ­– Where the Plaintiff is a lonely, elderly man and the Defendant is a much younger woman; where parties are in a de facto relationship; where the Plaintiff spoke of committing suicide if the Defendant would not enter into, and remain in, a relationship with him; where the Plaintiff sold his house and, at the Defendant's behest, used the proceeds to buy another house which she became the sole registered proprietor of; where the Plaintiff did not receive independent legal advice about the transaction – Held: transaction set aside on grounds of undue influence and, alternatively, unconscionable conduct. Plaintiff thereby entitled to a 50% interest in the property (50% being all that he seeks).