DU LING TRUSTEE LIMITED AS TRUSTEE OF THE DU LING FAMILY TRUST v C AN AND ALL IN ONE ASSET MANAGEMENT LIMITED [2017] NZHC 1938

DU LING TRUSTEE LIMITED AS TRUSTEE OF THE DU LING FAMILY TRUST v C AN AND ALL INONE ASSET MANAGEMENT LIMITED [2017] NZHC 1938 [17 August 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2017-404-000225[2017] NZHC 1938BETWEEN DU LING TRUSTEE LIMITED ASTRUSTEE OF THE DU LING FAMILYTRUSTPlaintiffAND CHAO ANFirst DefendantAND ALL IN ONE ASSET MANAGEMENTLIMITEDSecond DefendantHearing: 15 June 2017(And following receipt of further submissions in July as toadmissibility of evidence)Appearances: R B Hucker for the PlaintiffR Reed/A Manuson for the First DefendantJ Strauss for the Second DefendantJudgment: 17 August 2017JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSENThis judgment was delivered by me on17.08.17 at 10:30am, pursuant toRule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateThe application[1] The plaintiff as trustee of the Du Ling Family Trust (the trust) applies forsummary judgment upon its proceeding to recover $744,000 it says was wrongfullytaken by the first defendant (Mr An), Ms Du's former husband, from the trust including$440,000 which she says he used to purchase a shareholding in the second defendantcompany (All In One).The claim[2] The claim is supported by the affidavits filed by or on behalf of Ms Du and MrAn. Issue was taken with the admissibility of Ms Du's affidavit. Mr Strauss for AllIn One submitted that Ms Du's affidavit filed in support, was not in the correct form,as HCR 12.4(4)(a) required. Her affidavit was in English yet she claimed she neitherspeaks nor understands English.[3] After a consideration of submissions by counsel the Court ruled that it wasuneasy about accepting a process by which a person is deposing to the truth of adocument in a language which she herself cannot read and understand.[4] In the circumstances the Court agreed to give Ms Du an opportunity to file anaffidavit in substitution for that previously filed.[5] On 20 July 2017 an affidavit of Jun Shi was filed. He deposed he was afreelance interpreter and translator specialising in interpreting and translating fromboth English to Mandarin and Mandarin to English languages.[6] Mr Jun has a Bachelor of Business Studies from Massey University in 2003and a Graduate Diploma in Interpreting Studies (Legal and Medical) from AucklandUniversity of Technology in 2015. Mr Jun deposes having worked in the interpretingand translation field for approximately three years and he became a full member ofNZSTI (New Zealand Society of Translation and Interpreting) in March 2016.[7] He deposes having previously prepared translations from Mandarin intoEnglish for High Court civil proceedings. He confirmed having read both theMandarin language affidavit of Ms Du sworn in support of her current summaryjudgment application, and the Mandarin language affidavit which Ms Du swore inreply. He confirms having prepared English translations for both Mandarin affidavits.[8] On behalf of All In One Mr Strauss submits the affidavits recently supplied arenot proper affidavits in support of the application. Counsel submits there is a bigquestion mark over the value of an affidavit prepared by a solicitor and then sworn bythe deponent as opposed to evidence given by the deponent.[9] A memorandum on behalf of the first defendant supports that position andnotes the translator content in English is the same as provided by the plaintiff'sprevious affidavit. Also counsel indicates concerns that the translator has simplytranslated the original English affidavit to Mandarin, the contents of which Ms Du hasconfirmed.[10] In the Court's view there has been sufficient compliance with Rule 1.15 HCR.[11] There can be no foundation to the allegation that the interpreter has simplysworn an affidavit that is untrue. Nor does it appear there is any basis for the Court togo behind the affidavit of the interpreter or to allege that the document is other than aproper translation.Ms Du's case[12] Ms Du is the sole trustee of the trust which was settled by a deed of trust dated26 November 2015, by Ms Du and Mr An.[13] The plaintiff was the registered proprietor of the Oak Terrace property and anInkster Street property in Auckland. The plaintiff pleads the Inkster Street propertywas originally purchased in 2011, in the name of Mr An, utilising funds that had beenprovided she says, from another property of hers. The Oak Terrace property waspurchased by the trust in 2014 and was also registered in the name of Mr An. The trustwas formed on 2 November 2015. The plaintiff was incorporated on 10 December2015.[14] Mr An was authorised to complete transactions on the trust's bank accounts.On January 2016 Mr An submitted a mortgage application form on behalf of theplaintiff to raise mortgage finance against the Inkster Street property and the OakTerrace property on behalf of Ms Du. Ms Du said she never completed any applicationfor a further loan even though a document bearing her signature was subsequentlyproduced by the ANZ Bank.[15] On 26 January 2016 the ANZ Bank entered into a facility agreement with thetrust in the amount of $1,191,000 to assist with the purchase of the Inkster Streetproperty, using both the Oak Terrace and the Inkster Street properties as security. On29 January 2016 the trust acquired the Inkster Street property from Mr An utilising aANZ Bank loan for $1,191,000. Ms Du signed the loan documents as a trustee. Shesays she has no recollection of signing the documents or for which purpose they weresigned.[16] Ms Du says she cannot speak nor understand English and at all material timeswas unaware that the mortgages were being raised against the Oak Terrace and InksterStreet properties and that Mr An had transferred the Inkster Street property fromhimself to the trust utilising the funds of the trust.[17] Ms Du claims that on 8 December 2016, and without her knowledge, Mr Andirected the ANZ Bank to make two payments each of $150,000 from the trust's bankaccount into bank accounts bearing his name only.[18] Ms Du further claims:(a) On 29 January 2016 and without her knowledge, Mr An directed theANZ Bank to make payment from the account of the trust to the accountof All In One in the amount of $440,000 causing the account of the trustwith the ANZ Bank to become overdrawn in the amount of $438,950;and(b) On 23 February 2016 and again without her knowledge Mr An arrangeda home loan from ANZ Bank in the sum of $440,000 using the trustproperties as security, and directed the bank to transfer the loanproceeds into the account of the trust to clear the overdrawn account ofMs Du.[19] It is pleaded Mr An is a 40 per cent shareholder in All In One and that companyowns a property at Hobson Street, Auckland. It is claimed those funds paid from thetrust by Mr An on 29 January 2016 (i.e. $440,000), and for which he on or about 23February 2016 arranged for a ANZ home loan using the trust properties as security, inorder to replace those funds earlier paid to All In One, were used by Mr An to acquirea personal interest in All In One and in turn the property at Hobson Street.[20] For Ms Du it is claimed the transfer of those funds were not utilised for thepurposes of the trust and nor did she authorise the transfer of those funds.[21] On 1 December 2016 Mr An lodged caveats against the trust properties at OakTerrace and Inkster Street maintaining a claim under the Property (Relationships) Act1976.[22] Ms Du says she has entered into a sale and purchase agreement for an Epsomproperty and has paid a 10 per cent deposit of $270,500. She says however thatbecause of those caveats lodged over the trust properties, she is unable to raise thefinance to settle the purchase of that Epsom property.[23] Ms Du seeks a declaration that:(a) Mr An's interest in All In One is because of a resulting or constructivetrust requiring him to account to Ms Du for monies wrongfullytransferred from the trust to All In One; and Mr An's shares in All InOne are held for the benefit of Ms Du.(b) That he holds those sums totalling $300,000 paid from Ms Du's bankaccount into his bank accounts on a constructive resulting trust infavour of Ms Du.[24] In the alternative it is pleaded that by Mr An's actions and conduct he hascommitted the tort of conversion by transferring those monies to himself.[25] Against All In One it is claimed that company through its directors knew orought to have known those funds received were not from the account of Mr An butwere from the Ms Du's trust account, and therefore All In One has knowingly assistedin the breach of trust committed by Mr An, and therefore holds those shares on aresulting or constructive trust in favour of Ms Du and therefore is liable to pay$440,000 to Ms Du.A summary of Ms Du's evidence[26] Ms Du says she and Mr An were married for nine years until 29 April 2016.He was a mortgage broker. They emigrated from China under the investor category.She said she provided the funds to purchase the Oak Terrace property prior to leavingfor New Zealand. Part of those funds were she said transferred by her to Mr An'saccount. She said funds were also transferred to relatives in China who then depositedthem into the account of Mr An. This was done because of restrictions on transferringmonies out of China.[27] This exercise was she says repeated to purchase the Inkster Street property.[28] She said Mr An was the principal applicant under the investor category forpermanent residence in New Zealand, and Ms Du was granted permanent residency asan accompanying person. She said she provided the funds to Mr An to acquire bothproperties. She says in late 2015 Mr An arranged for his solicitors to preparedocuments that she has subsequently become aware were trust documents, and thoseshowed her appointment as a trustee of a family trust. She was not, she says, awarethat there were mortgages over the Oak Terrace or Inkster Street properties. She saidMr An's lawyers completed the paperwork that was put in front of her to sign. Noarrangement was made for independent lawyers to be appointed to assist. She says itappears her trust acquired the properties by raising a mortgage over them and makingpayment to Mr An to acquire those properties notwithstanding he had used the moneyshe originally provided towards the purchase of those properties.[29] Ms Du does not recall signing any mortgage applications. She says thesignature against her name on those documents was not hers.[30] She and Mr An had discussed his interest in the Hobson Street propertyinvestment in or around November 2015. She said she did not agree to the investment.When later she was aware he had purchased an interest in that property she said hetold her it had been paid for entirely by a loan to All In One. Her enquiries later withthe ANZ Bank confirmed that on 29 January 2016, Mr An requested funds from thetrust to be transferred to All In One, which he had an interest in, and the amount inquestion was $440,000. Later the ANZ Bank provided All In One with a home loandrawn in that same amount which was used to repay the $440,000 taken from thetrust's bank account. Ms Du says she did not authorise these transactions.[31] Ms Du said she only became aware that there were mortgages on the OakTerrace and Inkster Street properties when she recently entered into a sale andpurchase agreement for an Epsom property, to be closer to a school her daughter wasto attend.[32] On 20 December 2016 Ms Du instructed her solicitors to seek repayment ofthose funds transferred All In One. In the course of those investigations she becameaware that on 8 December 2016 $300,000 had been transferred from the trust's bankaccount into Mr An's personal bank account.[33] In all she claims to be due a repayment of $740,000 which she needs tocomplete her purchase of the Epsom property.Notice of opposition and Mr An's evidence[34] Mr An's position is that all these issues properly fall under the Property(Relationships) Act 1976 and in respect of which the High Court has no jurisdiction inthe first instance.[35] Ms Du and Mr An were married on 16 January 2007 and on 13 May 2016around the time of their separation they entered into a private agreement drafted byMr Du showing how the relationship properties were to be divided.[36] Mr An asserts that during their relationship they jointly acquired the OakTerrace and Inkster Street properties and as well the shares in All In One which ownsthe Hobson Street property, even though those were acquired solely in his name.[37] Mr An asserts mortgages were registered over the Inkster Street and OakTerrace properties when those were first purchased in 2011 and 2014. He says thoseproperties are relationship property.[38] The trust, set up in November 2015 acquired the main relationship assets ofMs Du and Mr An being the Oak Terrace and Inkster Street properties. If thatdisposition of those properties to the trust has the effect of defeating Mr An's claimunder the Property (Relationships) Act 1976 then he will lodge a claim pursuant toss 44 and 44C either for the disposition to be set aside or for compensation to be paid.[39] It is submitted on behalf of Mr An that ownership of those funds must bedetermined under the Property (Relationships) Act 1976 before any claims ofresulting/constructive trust, conversion, and dishonest assistance can proceed.[40] Mr An deposes that he and Ms Du are still legally married. He was the oneresponsible for managing their relationship properties and investments and Ms Duaccepted that.[41] He came to New Zealand in 2011 and purchased the Inkster Street property(not then the Oak Terrace property as Ms Du claims) with funds from their relationshipsavings in China and also from a loan from a Chinese bank. That property was settledin his name. After they succeeded with their application under the investor categoryfor residency in New Zealand they started to transfer funds to New Zealand to satisfyimmigration requirements and to buy the Oak Terrace property which was nearby theschool they wished to enrol their children at.[42] The Oak Terrace property was likewise settled in his name solely because hedeclared his income for the purposes of the mortgage application. Mr An says thatafter moving into the Oak Terrace property Ms Du wanted to separate. He did notwant that as their daughter was 5 years old and their son was 3 years old at the time.[43] He said Ms Du asked him to sign an agreement that she had prepared for bothof them to see a therapist. He signed that because he said it was best for theirrelationship and the children. That agreement provided that the parties would dividetheir family assets and that Mr An would own 15 per cent and Ms Du 85 per cent ofthose assets and that he would agree to a transfer of his interests prior to April 2017.It also noted Mr An would pay 30 per cent of his income for the children's educationand other major expenses.[44] Mr An said they did not separate after they signed that agreement because hewanted to start a business and that was when the All In One company was set up; andbecause of this business endeavour they wanted to protect the financial interests of thefamily and they then agreed to set up a family trust. He said they went to see Mr Chena lawyer. Later by email dated 24 April 2015 Mr Chen confirmed his instructions fromthem to establish a family trust for the purpose of their asset protection and to have theOak Terrace and Inkster properties, presently in the name of Mr An, to be put into thefamily trust by gifting. Mr Chen noted that for the purpose of establishing the familytrust forms were included requesting all the details to be provided.[45] Mr An says Mr Chen was fluent in Chinese and that Ms Du had contacted MrChen on a number of occasions before they went to see him together. He said it hadbeen intended that both of them would be trustees of the trust but later Ms Du insistedon being the sole trustee – which he agreed to.[46] He says the mortgage on Inkster Street had been refinanced from the ChineseBank HSBC to the ASB Bank in 2015 and when it was transferred into the trust hedecided it would be easier to use the same bank i.e. the ANZ Bank to provide financefor the Oak Terrace property purchase. He said the ANZ Bank consented to themortgages being in the name of the trust provided he was the guarantor of the loans.He said he was made a nominated signatory of the trust bank account so that he couldcontinue his responsibility of managing the relationship properties.[47] He set up and invested in All In One together with others to purchase theHobson Street property. He says there was no question but that his interest in theshares of All In One is relationship property.[48] He says in early 2016 he discovered Ms Du was having an affair but for thesake of the children he did not make this a big issue. In May 2016 she asked him tosign a divorce agreement that she had prepared by which she would get all of theproperties and $300,000 cash. The relationship property specified included the OakTerrace and Inkster Street properties worth $3M, his shares in All In One worth over$440,000, and New Zealand bonds with a value of $1.5M. He said they also had cashin the sum of $570,000.[49] Mr An said he thought that if he signed the agreement giving relationshipproperty to her, that "we could keep peace in the family". After they both signed it hesaid Ms Du gave him $130,000 of the cash they had and she kept the rest. She thentravelled overseas, he believes, with her boyfriend. He said she spent approximately$70,000 on that trip. He was concerned about this and withdrew two amounts in thesum of $150,000 on 8 December 2016 from the home loan account to ensure that dailyexpenses, children's education fees and credit card expenses, were met.[50] He has since taken legal advice and understands now that the set up of the trustdefeats claims under the Property (Relationships) Act 1976. He has lodged claims onthe Oak Terrace and Inkster Street properties under the Act. He believes Ms Du'spurchase of the Epsom property was for her to move in with her new boyfriend andthat she paid the deposit of $270,500 from their relationship funds without his consent.[51] Mr An confirms that the mortgages on the Inkster Street and Oak Terraceproperties were registered when the properties were first purchased and before theywere transferred into the trust. The application for a mortgage was only to refinancethe mortgage against Inkster Street from the ASB Bank to the ANZ Bank.[52] Contrary to Ms Du's claim otherwise, Mr An says Ms Du can speak andunderstand English and that she initialled 20 pages of the loan agreement with ANZBank personally as a director of the trust.[53] Mr An says Ms Du was fully aware of the $440,000 investment in All In Onesince at least May 2016, and that a beneficial interest in that also belonged to her.[54] He believes the Inkster Street and Oak Terrace properties belong to them bothand that the trust was set up to protect their financial interests. Only now does heunderstand that the trust legally removes his control over the properties. He says thiswas not intended and that he continues to manage those as relationship property as hehas done so for many years.Review summary[55] Mr An's position is that their issues ought to be the subject of Property(Relationships) Act 1976 proceedings. Mr Hucker for Ms Du submits that the trust'sproceeding does not attempt to divide relationship property which is a separate issueto be resolved. There is he says no contemporaneous documentation suggesting MrAn was to be a signatory on the account of Ms Du and, that there is no suggestionthere was a distribution to Mr An as a discretionary beneficiary of the trust. Mr Huckersubmits All In One acknowledged or was wilfully blind to the source of funds for MrAn's subscription shares.Legal principles[56] If summary judgment is to be granted the Court must be left without any realdoubt or uncertainty concerning the plaintiff's claim. A plaintiff has the task ofshowing there is no defence.1 The Court will not normally resolve material conflicts1 Eng Mee Yong v Letchumanan [1980] AC 331 P.C.of evidence but should not accept uncritically evidence inherently lacking incredibility.2[57] The Court may take a robust and realistic approach where the facts warrant it.3Considerations[58] Mr Hucker submits there is no division of relationship property that arises as aresult of the proceeding. Rather Ms Du seeks to recover monies she says has beenmisappropriated and to which Mr An had no entitlement. The fact that the trustproperty may be subject to a future claim does not prevent recovery. Therefore s 4(4)of the Property (Relationships) Act 1976 has no application to this proceeding forrights under that Act do not constitute existing equitable estates or interests in property.Also any property rights do not exist until an order of the Court in relationship propertyproceedings has been made or the parties have reached an agreement. Therefore anduntil that happens each party is free to enforce its rights under conventional propertyprinciples. Mr Hucker submits that an order for return of misappropriated funds wouldnot affect the ability of the Family Court to make orders regarding the status anddivision of relationship property.[59] Mr Hucker submits Ms Du and Mr An created the trust as a separate entity,distinct from themselves. Ms Du is, counsel submits, under a positive obligation toprotect trust assets and a failure to do this will likely be a breach of trustee duties. Alsothe Act specifically preserves the law relating to trustee's obligations pursuant to s4(B). That section appears to confirm that the Act cannot cut across a person's rights,obligations and duties when acting in their capacity as a trustee.[60] The first cause of action asserts Mr An holds the funds he appropriated fromthe trust account on a resulting or constructive trust in favour of Ms Du because therewas no exercise of a trustee power that entitled Mr An to those funds that Mr An wasnot a trustee but even if he had been he would have had a duty to execute the trust inaccordance with its terms and a duty of loyalty and to preserve trust property. Instead2 Pemberton v Chappells [1987] 1 NZLR 1.3 Piblie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).it is claimed Mr An used these funds for non trust purposes. He has, it is claimed,knowingly obtained trust property in breach of trust or alternatively has meddled intrust property and has not applied those in accordance with the trust deed but insteadhas used them to acquire property for his own benefit. There is evidence Mr Huckersubmits from a forensic expert indicating that Ms Du's signature on the bankingmandate and the mortgage application form may have been forged.[61] There is, counsel submits, no evidence to indicate by his purchase of sharesthat Mr An intended to confer any beneficial interest to the trust in those sharespurchased in All In One.[62] The plaintiff's claim of conversion is about recovering money from that personor entity that has received it from Ms Du when there was no intention on her part totransfer that to the recipient. Mr Hucker submits in the present case the recipients arethe defendants and the cause of action is completed upon receipt of the money. Itmatters not submits Mr Hucker that Mr An's justifications for withdrawing funds areimmaterial to a cause of action in which money had and received has been made out.Further and as counsel notes Mr An does not allege Ms Du was aware of or directlyauthorised the transfer of funds to All In One.[63] The claim of knowing assistance against All In One concerns a person whodishonestly assists another's breach of trust, whether or not those funds have beenmisapplied because a stranger to a trust will be treated as a constructive trustee and befound liable to account if that person knowingly assisted in the dishonest fraudulentdesign to misapply trust funds. Mr An was a shareholder of All In One and the natureof that relationship, submits Mr Hucker, clearly implies knowledge by All in One ofthe circumstances by which Mr An obtained the funds for investment in his company.[64] Noting that the Court has a residual discretion to decline summary judgment,Mr Hucker submits this is not the sort of case where the use of summary judgmentmay result in some injustice. Also, a proceeding has been commenced in respect ofthe relationship's remaining assets. Case authority does not, he submits, stand for aprinciple that where there is a property dispute between spouses relating to allegedrelationship property, the Court must decline to grant summary judgment.Conclusions[65] Ms Du's account of all factual considerations is, the Court considers, far frombeing clear by the evidence she has provided.[66] Also it is clear that Ms Du's recall of events effecting the purchase of the OakTerrace and Inkster Street properties is not correct. It was not the Oak Street propertythat was first purchased. Also the Hobson Street property was acquired by All In Onebefore the trust was set up. Ms Du claims having no knowledge of the acquisition ofthis property.[67] The trust was set up by a lawyer Mr Chen who apparently acted for both MsDu and Mr An. Ms Du gives evidence now that she never intended to create the trust,and Mr An now gives evidence he was not advised about the legal consequences ofthe trust, particularly in not becoming a trustee himself.[68] The properties in question were transferred to the trust by Mr An without himreceiving any consideration for those. The evidence does not suggest anythingimproper regarding mortgage arrangements undertaken when the title to thoseproperties were reregistered in the name of Ms Du's trust.[69] There is a clear denial of Ms Du's claims of signature forgery. Mr An says MsDu's signature was fixed on those documents electronically and with her authority.Ms Du denies having an electronic signature but that denial should be viewed in thecontext where she said did not authorise for there to be any mortgage over theproperties, but she signed a home loan contract with ANZ when Mr Chen was herwitness.[70] Ms Reed for Mr An submits the forensic document expert did not find that thesignature on the home loan contract is unlikely to be that of Ms Du's. Why then, MsReed asks, did she sign a home loan contract with ANZ Bank if she did not authorisefor there to be mortgages over the properties. Also the clear evidence is that Mr Anwas the guarantor of the home loan as the bank would only allow the mortgages to bein the name of the trust if he was the guarantor.[71] The parties disagree regarding who prepared the divorce agreement in Chineseby which Ms Du would receive all relationship property (purported to be valued atabout $5.5M) save for $300,000 in cash. That document signed in May 2016 clearlyrefers to Mr An's shareholding in All In One. It seems Ms An was aware of theexistence of that asset more than a year before.[72] The parties are in disagreement about when it was that they separated. It issubmitted for Ms Du this occurred in January 2015. The Court is informed that in aparenting proceeding before the Family Court Ms Du deposed that the separationagreement was made in May 2016.[73] There are a number of significant matters including important facts upon whichthe parties disagree.[74] What is clear in this case is that the property transferred to the trust wasformerly relationship property. When the trust was created Mr An said he expected tobe a trustee but agreed he would not. He deposes having not understood how thatwould affect his interest in that property in the trust; that no issue was taken by hiseffective control of the trust thereafter until Ms Du recently purchased the Epsomproperty and professed to finding out that there were funds taken which she did notauthorise. Yet, it is clear by the parties' earlier agreement in May 2015 that she wasaware of the shareholding in All In One.[75] The important issue upon Ms Du's proceeding is proof of claims of a specificintention to defeat her rights to trust property. In this case the properties in questionhad been registered in Mr An's name before registration was transferred to the trust.It may be, the Court considers, that the evidence of the lawyer involved Mr Chen,would likely be of assistance here. It is curious that in the circumstances that separatelawyers were not engaged as the evidence indicates the parties' relationship was not astable one.[76] Counsel for Mr An says a relationship property application will be initiatedunder the Property (Relationships) Act 1976 in conjunction with which an applicationunder s 40 of the Property (Relationships) Act 1976 will be filed to set aside thedisposition of relationship property to the trust.[77] It is curious that Ms Du relies on terms of a trust written in a language she doesnot understand. Mr An provides evidence about not having understood how his legalposition would be affected by signing that trust document.[78] It is the plaintiff's case that there were no trust resolutions detailing anyauthority given to the first defendant to deal with the ANZ Bank. However the trustdeed did not require such.[79] Counsel for Mr An submits the evidence provided by Ms Du raises morequestions than it resolves. The Court agrees with that observation.[80] Of importance to this case is the Court's view that it cannot be found that MrAn did not have authority to operate the trusts and/or to use the funds to acquire theinterest he did in All In One.[81] Ms Du and Mr An were the settlors of the trust and they retained the power toappoint and remove discretionary beneficiaries and trustees. Clause 2 of thememorandum of wishes recorded that the trust had been set up:For the general purpose of ensuring that (their) family's wealth is ownedthrough one coherent ownership vehicle and to ensure that members of (their)family are able to benefit from the capital and income of the trust from timeto time.[82] As Mr Strauss for the second defendant comments, the trust was establishedjust before All In One was established and according to Mr An the new businessventure prompted the decision to establish the trust to protect the family's financialinterests – and Ms Du does not challenge this account.[83] When the properties were acquired Ms Du and Mr An were married. Thosewere registered in Mr An's name and were mortgaged at the time they were acquired.There can be no issue but that those were then relationship property.[84] Over a period of about three months from the time the trust was created twoproperties were transferred to the trust, All In One was incorporated which thenpurchased the Hobson Street property, and Mr An acquired an interest in All In One.[85] The financing of all of these is interrelated. It is not clear from availableevidence about how those transactions relate to relationship property. Mr An claimshis holding in All In One is relationship property. Later their "divorce" agreementdated 13 May 2016 refers to relationship property as including shares in All In One.[86] The Court accepts the submission of Mr Strauss that no distinction is made inthat agreement between relationship and trust property which is consistent with howthe parties conducted their financial affairs. The setting up of the trust therefore andthose transactions is not inconsistent with Mr An's version of the events. Nor has MsDu offered any explanation for why Mr An would have transferred the two propertiesto the trust and assume personal liability for the trust's liabilities to the ANZ Bank.[87] If in May 2016 Ms Du completed an agreement listing an interest in All In Oneas relationship property how is it then that she can now contend that Mr An had notbeen authorised to use the funds for that purpose.[88] Notwithstanding Mr Hucker's submissions for this matter to be considered inisolation from relationship property rights this Court is of the view that the underlyingissues in the present proceeding appear to be essentially about relationship property.[89] Whether right or wrong in that regard, the Court is of the view that this is notan appropriate case to grant summary judgment. There is no reliable evidence tosupport claims of dissipation of trust assets, or of the circumstances obliging Ms Duto assume trustee obligations.[90] There are many factual differences that cannot be resolved by the affidavitevidence. Ms Du's claims of misleading conduct by Mr An are not supported. Thetrust deed is possibly open to challenge and the Court considers any such proceedingought to be filed and served promptly.[91] The Court also considers it appropriate for Mr An to provide an undertaking toretain the shares in All In One and to ensure their value is not adversely affectedmeanwhile.[92] If requested the Court will convene a telephone conference to discuss howthese matters ought to be addressed.Result[93] The summary judgment application is dismissed.[94] Costs are reserved for determination upon application made in due course, onceMr An's Family Court proceeding has been filed.Associate Judge Christiansen