Fan v Han [2016] NSWSC 1488

Fan v Han [2016] NSWSC 1488

No enforceable oral agreement was found for the transfer of the defendant’s share in the family home: the evidence did not establish an intention for a binding contract and, even if it had, the lack of a memorandum in writing and absence of unequivocal acts of part performance rendered the alleged contract unenforceable. The plaintiff was found beneficially entitled to a resulting trust in the Auburn property in proportion (33.1%) to his contribution, given the presumption was not rebutted. He is also entitled to contribution for mortgage payments, subject to accounting for rent and occupation fees.

Parties
Plaintiff: Yi Jun Fan; Defendant: Rui Han
Jurisdiction
Australia
Judgment Date
25 October 2016
Procedural Posture
Principal Judgment / Decision, Post Hearing; Orders to Be Formulated
Outcome
Plaintiff partially succeeds; directions given for final orders, declarations as determined
Legal Topics
Oral Agreements and Part Performance, Resulting Trusts, Matrimonial Property, Constructive Trusts, Contribution for Mortgage Payments, Part Performance Under Conveyancing Act 1919 (nsw) S 54 a
Contract Law Equity Trusts and Trustees Oral Agreements and Part Performance Resulting Trusts Matrimonial Property Constructive Trusts Contribution for Mortgage Payments +1 more

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Parties

Yi Jun Fan

Plaintiff

Rui Han

Defendant

Procedural Posture

Principal Judgment / Decision, Post Hearing; Orders to Be Formulated

Legal Issues

  1. 1 Whether an enforceable oral agreement existed for the transfer of the defendant's interest in the family home to the plaintiff
  2. 2 Whether the agreement fails for want of writing (s 54A Conveyancing Act 1919 (NSW))
  3. 3 Whether acts of part performance displace the statutory requirement

Ratio Decidendi

No enforceable oral agreement was found for the transfer of the defendant’s share in the family home: the evidence did not establish an intention for a binding contract and, even if it had, the lack of a memorandum in writing and absence of unequivocal acts of part performance rendered the alleged contract unenforceable. The plaintiff was found beneficially entitled to a resulting trust in the Auburn property in proportion (33.1%) to his contribution, given the presumption was not rebutted. He is also entitled to contribution for mortgage payments, subject to accounting for rent and occupation fees.

Court Disposition

Plaintiff partially succeeds; directions given for final orders, declarations as determined

Orders

  • Plaintiff beneficially entitled to 50% of funds from sale of North Parramatta property and interest thereon;
  • Defendant similarly entitled to 50% of funds from sale and interest;