Hang v Wang

The plaintiff commenced these proceedings by summons filed on 5 January 2023. The plaintiff subsequently filed a statement of claim on 20 April 2023. The defendant filed a defence on 23 July 2023 and subsequently filed an amended defence and a cross-claim on 19 June 2024. The plaintiff claims to be entitled to a beneficial interest in or an equitable charge over property purchased in the name of the defendant, or restitution in respect of an alleged increase in the value of the property that is said to be attributable to the plaintiff’s alleged contributions to the acquisition, maintenance and improvement of the property. The defendant’s cross-claim seeks damages against the plaintiff for alleged sexual assault.

On 8 December 2025, the plaintiff filed a notice of motion seeking an order that the defendant’s defence and cross-claim be struck out for want of due dispatch and default judgment in favour of the plaintiff on the plaintiff’s claim.

That notice of motion came before me in the Applications List on 27 February 2026. Having reviewed the pleadings, I informed counsel for the plaintiff that I considered that the statement of claim was liable to be struck out for disclosing no reasonable cause of action and for being embarrassing. Accordingly, even if I accepted the plaintiff’s submissions that the defendant’s delay in prosecuting the cross-claim warranted striking out the defence and cross-claim for want of due dispatch, I would not enter default judgment in favour of the plaintiff in circumstances where the statement of claim did not disclose a reasonable cause of action in relation to at least some of the plaintiff’s claims. I disclosed the reasons for my view of the statement of claim in some detail. The plaintiff sought and was granted an opportunity to amend the statement of claim. Orders were made requiring the plaintiff to file and serve any application for leave to amend by 9 March 2026 for hearing in the Applications List on 13 March 2026.

In accordance with those orders, the plaintiff filed a notice of motion on 9 March 2026 seeking leave to amend the statement of claim. The notice of motion also sought orders striking out the defence and cross-claim for want of due dispatch. For reasons articulated by counsel for the defendants and further reasons articulated by me at the next hearing in the Applications List on 13 March 2026, the plaintiff’s proposed amended statement of claim did not address all of the deficiencies in the existing statement of claim, and introduced certain new deficiencies. Orders were made dismissing the plaintiff’s notices of motion filed on 8 December 2025 and 9 March 2026 with costs. The plaintiff was given a further opportunity to amend its pleading by an order granting leave to the plaintiff to file and serve any notice of motion for leave to amend by 20 March 2026.

The plaintiff took up that opportunity by filing and serving a notice of motion on 27 March 2026 for leave to amend by filing an amended statement of claim in the form annexed to an affidavit sworn by the plaintiff’s solicitor Mr William Chan on 26 March 2026.

The defendant opposes the plaintiff’s application for leave to amend. The defendant filed her own notice of motion on 1 April 2026 seeking an order pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) dismissing the plaintiff’s application for leave to amend and, in addition, an order dismissing the proceedings or striking out the plaintiff’s existing statement of claim. I proceed on the basis that the defendant relies on r 14.28 in support of her contention that the proposed amended statement of claim would be liable to be struck out and so should not be the subject of a grant of leave to amend, on r 13.4 in support of her application for an order dismissing the proceedings, and on r 14.28 in support of her alternative application for an order striking out the existing statement of claim. At the hearing of the motions in the Applications List on 10 April 2026, counsel for the defendant informed the Court that the order sought for dismissal of the proceedings extended to dismissal of the defendant’s cross-claim which she does not wish to pursue if the plaintiff’s claims are dismissed.

At the conclusion of that hearing, I made orders dismissing the proceedings pursuant to r 13.4 of the UCPR on the basis that my reasons would be published as soon as practicable. These are those reasons.

Rule 13.4 of the UCPR provides:

Rule 14.28 of the UCPR provides:

In order to be summarily dismissed as disclosing no reasonable cause of action, each of the plaintiff’s claims in the existing statement of claim, taken at their highest, must be demonstrated to be “manifestly groundless” or “so obviously untenable that it cannot succeed”. If there is an arguable issue to be tried, summary dismissal should be refused. [1]

The other concepts in rule 13.4(1) overlap with one another and with the principles to be applied in determining whether no reasonable cause of action is disclosed. Proceedings that are “frivolous” within the meaning of r 13.4(1)(a) includes proceedings that a plaintiff has no reasonable prospect of successfully prosecuting because the proceeding is “so obviously untenable that it cannot succeed”. Proceedings will be “vexatious” if they are productive of serious and unjustified trouble or harassment, including where they are an abuse of process. The concept of abuse of process cannot be exhaustively defined, but includes cases in which the Court’s procedures have been invoked for an illegitimate purpose, or are being used in a manner that is unjustifiably oppressive to one of the parties, and cases where the Court’s procedures are being used in a manner that would bring the administration of justice into disrepute. [2]

The same principles apply to an application to strike out a statement of claim as disclosing no reasonable cause of action (r 14.28(1)(a)) or on the grounds of abuse of process (r 14.28(1)(c)). A pleading has a tendency to cause prejudice, embarrassment or delay in the proceedings (r 14.28(1)(b)) if it fails to serve the essential function of a pleading by giving the defendant sufficient notice of the case that it must meet. That may be the case, for example, if a statement of claim is unintelligible, ambiguous or imprecise in identifying the material factual allegations on which the plaintiff relies as supporting the pleaded claims, or if it contains allegations that are inconsistent (and not pleaded as alternatives), confusing or irrelevant. [3]

Paragraphs 1 to 5B of the proposed amended statement of claim plead that the plaintiff and the defendant, who were both born in China, lived together in Sydney in a de facto relationship between 2019 and September 2022. The plaintiff pleads that he and the defendant purchased a property at Potts Hill in 2019 after they made an oral agreement between themselves that they would each contribute their respective available funds to acquire the property, that the property would be acquired in the defendant’s name, and that money would be raised by way of loan secured by mortgage against the property. The plaintiff pleads that it was an express or alternatively an implied term of the alleged oral agreement that the plaintiff and defendant would each have a 50% beneficial interest in the property to be acquired in the name of the defendant.

The plaintiff pleads in paragraph 5C that the Potts Hill property was acquired in the defendant’s name in 2019 for a price of $1,150,000.

In paragraph 6 of the proposed amended statement of claim, the plaintiff pleads that he made substantial direct financial contributions towards the acquisition of the property, and towards its conservation and improvement following acquisition. The plaintiff particularises those contributions as follows:

In paragraph 6A of the proposed amended statement of claim, the plaintiff pleads in the alternative to paragraph 6 that:

In paragraph 7 of the proposed amended statement of claim, the plaintiff also pleads that he made direct and continuing financial contributions to the parties’ joint living expenses.

In paragraphs 8 to 11 of the proposed amended statement of claim, the plaintiff pleads that the parties separated and he ceased living at the property on about 5 September 2022 and that he was subsequently deported to China on expiry of his visa.

In paragraphs 12 and 13 of the proposed amended statement of claim, the plaintiff pleads that he “has made demand” on the defendant to acknowledge his interest in the property, but she has “unconscientiously denied the Plaintiff’s entitlement to any claim to or interest in the Potts Hill Property”.

The plaintiff’s claims for relief in the proposed amended statement of claim are formulated as follows:

Paragraphs 1 to 6 of the proposed amended statement of claim might arguably be understood as a claim that the defendant holds the property on express trust for the plaintiff as to 50% pursuant to the alleged oral agreement which he performed by making the financial contributions referred to above. However, this is not expressly pleaded, and the declaration sought in prayer 1 does not identify an express trust as the source of the claimed 50% beneficial interest. Indeed, prayer 1 is silent as to the basis, or alternative bases, on which the plaintiff claims a declaration that he has a 50% beneficial interest in the property.

Paragraph 6A of the proposed amended statement of claim is expressed as being in the alternative to “paragraphs 6A, 6B and 6C above”. However, there are no paragraphs 6A, 6B and 6C above. The plaintiff may be intending to refer to paragraphs (a) to (c) of the particulars to paragraph 6 which set out details of the plaintiff’s alleged financial contributions to the acquisition of the property prior to settlement. The uncertainty surrounding paragraphs 1 to 6 which I have explained immediately above gives rise to the question in relation to paragraph 6A: alternative to what?

Further, the defendant is left to guess whether proposed paragraph 6A(b) is simply re-pleading the alleged oral agreement pleaded in paragraphs 1 to 6 or is pleading additional “conversations between the parties prior to the acquisition of the property”. No details of the alleged conversations (date, substance etc) are pleaded or particularised.

By the use of the word “accordingly”, proposed paragraph 6A(c) leaps to alternative assertions of constructive trust and resulting trust. As to the asserted constructive trust, it is not clear from the proposed amended statement of claim whether the plaintiff means to claim a common intention constructive trust or (as the submissions made by the plaintiff’s counsel at the hearing on 10 April 2026 indicated) a joint endeavour constructive trust, or both in the alternative. If the claim is intended to be one of constructive trust, the substance of the alleged common intention and the facts relied on in support of it are unclear due to the ambiguity affecting paragraph 6A(b), and there is no pleading of reliance or detriment. [4] If the claim is intended to be one of joint endeavour constructive trust, then I acknowledge that paragraphs 4 and 5 plead what might be characterised as a joint endeavour and paragraphs 8 to 11 plead that the parties’ relationship came to an end in September 2022. However, there is no pleading that their relationship failed without attributable blame and that, unless the defendant holds the property on constructive trust for the plaintiff as to 50%, the defendant will enjoy the benefit of the plaintiff’s alleged contributions in circumstances where it was neither specifically intended or provided by the parties that she should do so. [5] That is a glaring omission in circumstances where the defendant alleges in her cross-claim that their relationship came to an end after the plaintiff sexually assaulted her. As to the assertion of a resulting trust as to a 50% interest in the property, the proposed amended statement of claim does not articulate the reasons why the defendant is alleged to hold the property on resulting trust for the defendant as to 50% in circumstances where he claims to have made contributions of only $165,000 to the purchase price of $1,150,000. [6] These pleading deficiencies are not overcome by proposed paragraph 13 which asserts that the defendant’s denial of the plaintiff’s claimed 50% beneficial interest in the property is unconscientious, unsupported by any pleading of the matters relied on in support of that contention. [7]

For completeness, I note that the proposed amended statement of claim does not articulate any connection between the plaintiff’s alleged contribution to the parties’ joint living expenses pleaded in paragraph 7 and any of the claims for relief.

Due to the ambiguity in the proposed amended statement of claim as to the factual and legal basis on which the plaintiff claims to be entitled to a 50% beneficial interest in the property, the proposed amended statement of claim does not give the defendant sufficient notice of the case that she must meet in relation to that claim and thereby fails to serve the essential function of a pleading. This is illustrated by the written submissions made by Ms Winfield of counsel in support of the plaintiff’s application for leave to amend. Ms Winfield has appeared for the plaintiff at each hearing in this matter in the Applications List, save for the hearing on 10 April 2026 at which Ms Bridger of counsel appeared. Ms Winfield’s written submissions dated 8 April 2026 describe the plaintiff’s claims in a way that differs materially from the proposed amended statement of claim in several respects. For example, the submissions refer to a representation in specific terms as the foundation for the claimed constructive trust, but no such representation is pleaded in the proposed amended statement of claim. The submissions also refer to proprietary estoppel, but the proposed amended statement of claim does not plead any claim by reference to the elements of proprietary estoppel.

For those reasons, paragraphs 1 to 7 and 13 of the proposed amended statement of claim and prayer 1 of the claims for relief would be liable to be struck out under r 14.28 as embarrassing. Leave to amend in respect of those paragraphs and prayer 1 should therefore be refused. The same applies in relation to prayer 4, which I assume is a claim for an order appointing trustees pursuant to s 66G of the Conveyancing Act 1919 (NSW) predicated on the plaintiff being a co-owner of the property by reason of his claimed 50% beneficial interest in the property.

Prayer 2 of the proposed amended statement of claim is a claim for a declaration that the plaintiff holds an equitable charge over the defendant’s interest in the property for a sum equal to the contributions made by the plaintiff to the acquisition, maintenance and improvement of the property between 2019 and 2022. The declaration claimed in prayer 3 appears to be ancillary to prayer 2 in that it seeks to quantify the amount allegedly secured by the claimed equitable charge. Prayer 5 is ancillary to prayers 2 and 3, judicial sale being the standard remedy of an equitable chargee upon default by the chargor. [8]

The proposed amended statement of claim does not disclose any reasonable cause of action in respect of the plaintiff’s claim for a declaration that he holds an equitable charge over the property. The proposed amended statement of claim pleads no facts that are capable of supporting a contention that the defendant was obliged to repay the plaintiff’s alleged financial contributions and that the parties intended to create an immediate right of recourse against the property in favour of the plaintiff to secure the defendant’s performance of that obligation. [9]

The plaintiff’s application for leave to amend must therefore be refused to the extent that the proposed amended statement of claim includes prayers 2, 3 and 5 of the claims for relief.

The claim for restitution in proposed prayer 6 is for “a sum equivalent to the increased value of the Potts Hill Property in consequence of the contribution attributable to the Plaintiff’s expenditure for its acquisition, and for its maintenance and improvement since the date of acquisition”. However, none of the post-acquisition contributions particularised in paragraph 6 of the proposed amended statement of claim are described as having been made for, or applied to, the maintenance and improvement of the property. The proposed amended statement of claim does not plead that the property has increased in value as a result of any such contributions.

For those reasons, proposed prayer 6 discloses no reasonable cause of action for restitution and would be liable to be struck out or summarily dismissed. Leave to amend in respect of proposed prayer 6 must therefore be refused.

For all of those reasons, there will be an order dismissing the plaintiff’s notice of motion for leave to amend filed on 27 March 2026.

The refusal of leave to amend will leave the plaintiff’s existing statement of claim standing unless orders are made striking it out pursuant to r 14.28 or summarily dismissing the proceedings pursuant to r 13.4 of the UCPR.

The existing statement of claim fails to disclose a reasonable cause of action for the reasons that I articulated in my exchange with the plaintiff’s counsel at the hearing on 27 February 2026. In short, the plaintiff claims a declaration that he holds an equitable charge over the property for a sum representing the expenditure made by the plaintiff upon acquisition, maintenance and improvements upon the land in the period between 2019 and 2022 (prayer 1) and an order for sale of the land (prayer 2), but no facts are pleaded that are capable of supporting a contention that the defendant was obliged to repay the plaintiff’s alleged expenditure and that the parties intended to create an immediate right of recourse against the property in favour of the plaintiff to secure the defendant’s performance of that obligation. The only other claim for relief in the existing statement of claim is a claim for “restitution from the Defendant for a sum equivalent to the enhanced value of the land in consequence of the Plaintiff’s expenditure in acquisition of, maintenance and improvement thereon”. However, it is not pleaded that the value of the land has been enhanced as a result the plaintiff’s alleged expenditure. Nor does the existing statement of claim identify any qualifying or vitiating factor that would render it unjust for the defendant to retain the benefit of any increase in the value of the land (if any). [10]

The proceedings were commenced more than three years ago. The plaintiff has been legally represented from the outset. The plaintiff has now had three opportunities to formulate a statement of claim that discloses a reasonable cause of action and fulfills the basic functions of pleading. [11] The plaintiff has failed to do so, despite receiving the benefit of observations made by me and submissions made by counsel for the defendant identifying the deficiencies in the existing statement of claim and in each iteration of the plaintiff’s proposed amended pleading. To now permit a further attempt at repleading would be a shockingly inefficient use of the publicly funded resources of the Court. It would be unjustifiably oppressive to the defendant to require her to consider and respond to further iterations of proposed amendments to the statement of claim given the time and resources already invested by the defendant in responding to the two amendment applications to date. In my opinion, such inefficient use of the resources of the Court and oppression of the defendant would bring the administration of justice into disrepute. The appropriate order is therefore to make an order dismissing the proceedings pursuant to r 13.4 of the UCPR rather than merely striking out the existing statement of claim with liberty for the plaintiff to replead. Summary dismissal will not preclude the plaintiff from commencing fresh proceedings, [12] but any such fresh proceedings will suffer the same fate of these proceedings unless the statement of claim discloses a reasonable cause of action and fulfills the basic function of a pleading.

For all of the foregoing reasons, the orders of the Court are: