Chan bht Morton v Chan

1. [1]

   These proceedings concern the beneficial ownership of a property located at XX Hugh Street, Ashfield (the Property).

2. [2]

   The Property was purchased in 1990 in the sole name of the defendant, Susan Chan (Susan), and remains registered in her name.

3. [3]

   The plaintiff, Hai Yun Chan (Mrs Chan) is Susan’s mother. Acting by her tutor and third daughter, Lauren Chan (Lauren), Mrs Chan contends that Susan holds the property either:

4. [4]

   Susan opposes the relief sought. She contends that in 1990 her father (the late Mr Chan) acting on his own behalf and Mrs Chan, agreed with Susan that the Property would be hers.

5. [5]

   The proceedings were heard on 23-25 March 2026. Brendan May appeared for the plaintiff and Jacob Horowitz appeared for the defendant.

6. [6]

   For the reasons set out below the claims advanced by the plaintiff fail. The parties should seek to agree orders, including as to costs. In the event that any issue remains unresolved, I will determine it on the papers.

The background facts

1. [7]

   The background facts were largely not in dispute. They may be summarised as follows.

2. [8]

   Mrs Chan and her husband, Mr Chan had four children, Susan, Tammie, Lauren and Robert. In using their given names in these reasons I intend no disrespect or over familiarity.

3. [9]

   All members of the Chan family were born in Burma (Myanmar) and are ethnically Chinese.

4. [10]

   The family emigrated to Australia in the mid 1970’s.

5. [11]

   In the 1980’s the family moved to a two-bedroom unit purchased by Mr and Mrs Chan in Stanmore (Stanmore Unit). A loan was obtained by Mr and Mrs Chan to purchase the Stanmore Unit, secured by a mortgage over that property. The loan was apparently repaid by 1988, and the mortgage was discharged in November of that year. All six members of the Chan family lived in the Stanmore Unit – Susan, Lauren and Robert shared a bedroom and Tammie slept on the living room floor.

6. [12]

   It is not in dispute that the Property was purchased in the name of Susan in about September 1990 for $175,000. The contract completed on 18 October 1990. The circumstances in which the Property was acquired, and the source of the purchase funds, are in dispute. I set out these circumstances below when dealing with the respective contentions of the parties. It is, however, not in dispute that Susan took out a home loan from her employer at the time, Westpac Banking Corporation (Westpac) for $80,000. The source of the remaining funds is in dispute. Susan contends that she took out a general purpose loan with Westpac for $20,000 which was put to the purchase of the Property and that the remaining $75,000 was provided by Mr Chan but from Susan’s savings to which he had access. The plaintiff disputes that account and contends, as I understand it, that the remaining $95,000 came from family pooled funds.

7. [13]

   In or about 1992, following the construction of a five-bedroom dwelling on the land, the whole Chan family moved into the Property. Mr Chan was largely responsible for the construction. A construction loan of $125,000 was obtained for this purpose from Westpac, in the names of Mr and Mrs Chan, Susan and Tammie secured over the Stanmore Unit. The construction loan and Susan’s home loan were subsequently increased.

8. [14]

   The Stanmore Unit was sold by Mr and Mrs Chan on 17 September 1993 for $123,000. The bulk of the proceeds of sale were used to pay out the construction loan.

9. [15]

   It is also common ground that there was a pooling arrangement whereby each of the children “paid” money to their parents for the purposes of meeting household expenses. I use the term “paid” because the means by which that occurred appeared to differ between the children and at least in the case of Susan, Mr Chan had unfettered access to her bank account. The amounts contributed by each was also in dispute.

10. [16]

    Each of Susan, Lauren and Tammie lived in the Property until they were married.

11. [17]

    Susan contends that she made all of the mortgage payments under the $80,000 home loan, although that is disputed. It is not in dispute that the loan was paid off by 26 August 1999.

12. [18]

    It is not in dispute that Mr and Mrs Chan were legally divorced in 1999.

13. [19]

    Thereafter, Mr Chan went on to marry another lady, Myint Sandar (Ms Sandar). It was common ground that Mr Chan went to live with Ms Sandar for a period of time. The extent to which Mr Chan ceased residing at the Property and the nature and extent of his relationship with Ms Sandar, was in dispute.

14. [20]

    It was not in dispute that Mr Chan had returned to live at the Property by about 2005 and that he remained living there until his death in 2018. Mrs Chan also continued to reside at the Property until about 2021. The nature of the relationship between Mr and Mrs Chan during the period from 2005 and 2018 when Mr Chan died was in dispute. The relevant issue is whether they were in a de facto relationship at the time of Mr Chan’s death in 2018 – he having died intestate.

15. [21]

    In about July 2021, Mrs Chan moved out of the Property and commenced residing with Susan in St Ives. Since that time, the Property has been leased to tenants with Susan collecting the rental income. It was not in dispute that she has obtained approximately $187,000 in rent.

16. [22]

    On 7 February 2022, Lauren and Tammie were appointed enduring guardians of Mrs Chan. Those appointments were subsequently confirmed by the NSW Civil and Administrative Tribunal (NCAT). Lauren was also appointed Mrs Chan’s financial manager by NCAT. That was because Mrs Chan had been diagnosed with moderately advanced stage Alzheimer’s disease at that time.

17. [23]

    On 1 September 2023, Lauren commenced these proceedings.

Overview of the claims advanced by Mrs Chan

1. [24]

   Mrs Chan alleges that in about late 1990, there was a conversation between Mr Chan, Mrs Chan and Susan, in which the parties agreed that the Property would be registered in Susan’s sole name, but held by her on trust for Mr and Mrs Chan.

2. [25]

   As a result of this conversation, Mrs Chan alleged that the Property was held by Susan on express trust for Mr and Mrs Chan.

3. [26]

   Further or alternatively, it was alleged that, the conversation evidenced a common intention between Mr and Mrs Chan on the one hand, and Susan on the other, that the beneficial ownership of the Property would remain with Mr and Mrs Chan. A common intention constructive trust was alleged.

4. [27]

   Alternatively, to the above two claims, it was alleged that of the purchase price for the Property of $175,000:

   1. (1)

      $81,000 was provided by Susan through the loan obtained from Westpac; and

   2. (2)

      the balance of $94,000 was provided by Mr and Mrs Chan.

5. [28]

   The Property is held on resulting trust for Mrs Chan by Susan in proportion to the amounts contributed by Mr and Mrs Chan to the purchase price.

6. [29]

   Susan denied the alleged conversation said to create the alleged express trust or, in the alternative, a common intention constructive trust. Susan alleged her own agreement in 1990 reached with her father. It was said to be the following effect:

7. [30]

   Susan also contended that she paid the entirety of the purchase price for the Property – the $80,000 home loan, a separate $20,000 loan and $75,000 paid by Mr Chan from savings Susan had given him access to.

8. [31]

   The parties were at odds over who ended up paying the loans, from what sources, and how much. Susan has also, as set out above, recently been receiving the rent from the Property. The parties were agreed that if there was a need to carry out precise accounting in relation to these matters, a single expert should be appointed by the Court for this purpose or the question referred out, after the Court has determined the question of ownership of the Property.

Approach to fact finding

1. [32]

   The primary case advanced by Mrs Chan depended on the Court accepting that a conversation to a particular effect occurred in 1990, a little over 35 years ago. Susan’s substantive defence also alleged her own version of the conversation. I approach fact finding in this regard consistent with well understood principles: see, for example, Van Rensburg v Adilinis [2024] NSWSC 1146 (Van Rensburg) at [8]-[11].

2. [33]

   As I observed in the above passage in Van Rensburg, such cases frequently give rise to significant forensic difficulties. Where spoken words are said to found the cause of action, and there is no reliable contemporaneous record or other satisfactory corroboration, proof may be especially difficult.

3. [34]

   A further relevant consideration to fact finding in the present case is that one participant in the conversation relied on, Mr Chan, sadly passed away in 2018 and is thus not available to give his version of events. It is well understood that in a claim based on communications with a deceased person, the Court will treat uncorroborated evidence of such communications with considerable caution: see Eggins v Robinson [2000] NSWCA 61 at [26] per Sheller JA (Powell JA agreeing).

General observations of the witnesses

1. [35]

   Each of Lauren, Tammie, Robert and Mrs Chan gave evidence in the plaintiff’s case. I formed the view that each was doing their best to assist the Court. In circumstances where only Mrs Chan was a party to the alleged 1990 conversation, the evidence of Lauren, Tammie and Robert was, for the most part, not of direct relevance. I accept their evidence except where it is contradicted by contemporaneous documentation.

2. [36]

   Mrs Chan’s evidence is in a different category for a variety of reasons. She was said to be a direct participant in the alleged 1990 conversation. Perhaps more importantly, these proceedings have been commenced by Lauren as Mrs Chan’s tutor. Orders were made by NCAT in 2022 appointing Lauren as Mrs Chan’s financial guardian. Apart from some general references during the hearing to Mrs Chan having some form of dementia, there was little detail before the Court as to Mrs Chan’s current condition, and whether it has any impact on Mrs Chan’s memory and her ability to give evidence more generally.

3. [37]

   Mrs Chan made a number of affidavits in these proceedings – the earliest relevantly being 23 May 2024 and the most recent made 5 December 2025. She gave evidence through an interpreter.

4. [38]

   If her answers in cross-examination are to be accepted, Mrs Chan made a number of concessions.

5. [39]

   Counsel for Mrs Chan contended that where her evidence in cross-examination was inconsistent with what she had said in her affidavits, the Court would prefer the affidavit evidence, it being earlier in time with Mrs Chan having dementia. Reference was also made in this regard to some answers given by Mrs Chan early in her cross-examination where she could not recall whether she had children prior to emigrating to Australia.

6. [40]

   There are a number of difficulties with this submission. First, it was not suggested that Mrs Chan was not competent to be a witness. She was made available for cross-examination and her most recent affidavit was made approximately three and a half months prior to giving evidence. As I have said above, no evidence was led as to her current condition, including her mental capacity.

7. [41]

   Second, in at least some significant respects the evidence which Mrs Chan gave in the witness box is consistent with statements made by Mrs Chan some years prior to making her affidavits, where those statements are objectively verifiable because they were electronically recorded or were recorded by Mrs Chan in her own hand. I refer to these communications later in these reasons.

8. [42]

   Counsel for Susan contended that the answers given by Mrs Chan in cross-examination should be given weight by the Court. The alternative submission was that if the Court was concerned about Mrs Chan’s capacity, the result is that none of her evidence in the proceedings – whether on affidavit, or in the witness box – should be afforded any weight.

9. [43]

   I carefully observed Mrs Chan giving evidence. At times she was confused but this could have been due to the simple fact that she was in an unfamiliar surrounding and giving evidence through an interpreter. There is no evidence to suggest that it was as a result of any enduring impairment with her capacity.

10. [44]

    I do not disregard Mrs Chan’s answers in cross-examination but consider them along with all the other evidence.

11. [45]

    Tammie’s husband Gavin Handley also gave evidence. It was of limited relevance. He was doing his best to assist the Court and I accept his evidence.

12. [46]

    Ms Sander also gave evidence in the plaintiff’s case. I formed the impression that she was doing her best to assist the Court in what obviously included sensitive topics for her – namely whether she had a sexual relationship with Mr Chan. I accept her evidence as far as it goes. In particular, although Ms Sandar gave evidence of what she observed of the relationship between Mr and Mrs Chan after she separated from Mr Chan, those observations could only have been sporadic.

13. [47]

    The primary witness in Susan’s case was Susan herself. She was cross-examined for a period and a credit attack was made on her evidence in closing submissions. I do not accept that attack.

14. [48]

    I formed the view that Susan was giving evidence honestly and doing her best to assist the Court. There is considerable contemporaneous material to support her evidence.

15. [49]

    Susan’s husband Dennis Wong also gave evidence. His evidence was quite confined and objectively probable. I accept it. I do not accept that he was giving untruthful evidence to assist his wife’s case.

16. [50]

    The only other witness called to give evidence before the Court was Toho Sibson (Ms Sibson), a life-long family friend of Mr and Mrs Chan. She was an impressive witness. I accept her evidence.

The two issues litigated

1. [51]

   There were two primary factual issues litigated between the parties:

2. [52]

   I deal with each in turn.

3. [53]

   Before doing so, I set out the relevant legal principles to the various trust claims advanced by the plaintiff.

Relevant legal principles

1. [54]

   The principles were not in dispute.

2. [55]

   Both parties made reference to the recent judgment of Kirk JA (with whom Mitchelmore JA agreed) in Li v Ye [2025] NSWCA 227 (Li) at [27] ff.

3. [56]

   The following points emerge from his Honour’s judgment:

4. [57]

   A common intention constructive trust may arise where the parties have agreed, or it was their common intention, that a claimant should have an interest in property owned by the other and the claimant has acted to his or her detriment on the basis of that agreement or common intention: see Galati v Deans [2023] NSWCA 13 at [53].

5. [58]

   One important point to bear in mind, as emphasised by Kirk JA in Li at [42]-[43] is that it is the manifest intentions at the time of the creation of the trust that are relevant. Kirk JA stated at [42]-[43]:

6. [59]

   An issue arose at the hearing as to whether any admissions made by Mr Chan were admissible, he not being a party to the proceedings but obviously being a party to the 1990 agreement said to give rise to the trust. I provisionally admitted the evidence in this category. Having been given an opportunity to address me on the point, counsel for the plaintiff properly drew my attention to authority contrary to the narrow meaning contended for by the plaintiff that only admissions by parties to the proceedings are admissible: see, for example, Black Uhlans Incorporated v New South Wales Crime Commission & Ors [2002] NSWSC 1060 at 139 per Campbell J; Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365; [1956] HCA 28. The evidence was then admitted unconditionally.

What was agreed in 1990 as to who would own the Property?

1. [60]

   I have expressed the issue in this way because there were competing contentions as to what was agreed. It is, however, Mrs Chan that is propounding the existence of an express or common intention constructive trust and she bears the onus of making out her contentions.

2. [61]

   It is useful to set out the limited objective material at the time of the purchase, before turning to deal with the evidence by the witnesses.

3. [62]

   On 29 September 1989, Susan was promoted within Westpac to the position of Applications Engineer with effect from 1 October 1989. Her new salary was $33,810 per annum. There was some dispute in relation to whether she was promoted to a new position in October 1987. The dispute centred on the admissibility of some handwriting on a business card of Susan’s superior. I admitted the handwritten record but it is of less significance given the home purchase was in late 1990.

4. [63]

   On 10 September 1990, Mondial Real Estate sent a letter to Mr Chan in the following terms:

5. [64]

   Mrs Chan placed reliance on the fact that the letter is treating Mr Chan as the purchaser. Susan’s response was that she was happy for Mr Chan to speak to real estate agents on her behalf.

6. [65]

   By 18 September 1990, Westpac had approved a housing loan for Susan with effect from 25 October 1990 for $80,000. A “general purpose/car loan” for $20,000 was also approved. Susan received a letter dated 18 September 1990 reflecting how the two loans would be “costed” to her “salary package”. The fact that the two loans were taken out at the same time, and in the absence of any suggestion that Susan used the $20,000 for other purposes, supports Susan’s contention that she contributed the $20,000 to the purchase of the Property.

7. [66]

   A further letter was sent by Westpac to Susan dated 19 September 1990 in the following terms:

8. [67]

   The letter is worded on the basis that Susan is to be the purchaser.

9. [68]

   Settlement of the purchase of the Property took place on 18 October 1990. On 22 October 1990, Boyd, House & Partners, the solicitors retained on the purchase of the Property wrote to Susan in the following terms:

10. [69]

    An owner builder permit in the name of Susan was issued under the Building Services Corporation Act 1989 (NSW) dated 11 April 1991. A Building Permit was subsequently issued to Susan by Ashfield Council dated 4 September 1991.

11. [70]

    On 10 October 1991, Westpac sent a letter to Mr and Mrs Chan, Susan and Tammie offering a construction loan in the sum of $125,000. That offer was accepted. The loan was secured by a mortgage over the Stanmore Unit dated 26 November 1991.

12. [71]

    In late May 1992, Susan was required to increase the borrowings secured by the housing loan on account of increased construction costs. On 28 May 1992, the amount of the loan was increased to $97,600. The construction loan was also increased to $160,000 in August 1992.

13. [72]

    The Stanmore Unit was sold on 17 September 1993 for $123,000. The net proceeds were approximately $108,000. The construction loan was paid out and the mortgage over the Stanmore Unit discharged. The evidence was unclear as to who made the repayments on the construction loan prior to its repayment or who paid any shortfall beyond the funds available from the Stanmore Unit. I do not need to make any findings on these matters.

14. [73]

    Against this somewhat thin background of objective material, I now turn to the evidence from the witnesses to what was agreed in 1990.

15. [74]

    Only two of the participants are now around to give their versions – Susan and Mrs Chan.

16. [75]

    The only material from Mr Chan is a statutory declaration made by him dated 21 June 2002. The statutory declaration was made at a time when Mr Chan was still in a relationship with Ms Sandar and in circumstances where there appears to have been a concern that a claim could be made over the Property. The statutory declaration is in the following terms:

17. [76]

    Both sides placed some reliance on the document in their case. I deal with its significance below. Ultimately however, it assists Susan’s case.

18. [77]

    Mrs Chan gave the following evidence in her 23 May 2024 affidavit.

19. [78]

    Susan gave the following affidavit evidence in chief:

20. [79]

    In her reply affidavit, Mrs Chan had no recollection of the conversations deposed to by Susan in [37] and [38] above and denied there was ever any conversation to the effect set out at [40] to [42] above. Mrs Chan reiterated that the only conversation she recalled regarding the Ashfield property was as set out in paragraph [10] of her first affidavit.

21. [80]

    Susan adhered to her affidavit evidence under cross-examination. She was cross-examined on several earlier statements. The first was the eulogy she gave at her father’s funeral in which she stated:

22. [81]

    Second, she was cross-examined on an email she sent to her siblings dated 31 January 2018 attaching an introduction to a book she started writing “many years ago” containing her “experiences, my feelings and my childhood to last update 7 years ago. A section headed “Dream House (1991)” relevantly states:

23. [82]

    Third, she was cross-examined on her exchange of WhatsApp messages with her siblings on 3 November 2021 when Susan failed to mention any 1990 agreement. Susan’s messages included:

24. [83]

    Mrs Chan did not adhere to her evidence in chief under cross-examination. She gave the following evidence in cross-examination.

25. [84]

    Mrs Chan’s evidence on this issue and the extent to which it should be disregarded or discounted by reason of her apparent medical condition, must be considered against two further and more recent pieces of evidence involving her.

26. [85]

    The first is a handwritten note made by Mrs Chan on 25 October 2021, recording a discussion she had with Tammie the day before on 24 October 2021. The certified translation of the entry is as follows:

27. [86]

    The relevant aspect is Mrs Chan’s statement that the Property was Susan’s.

28. [87]

    The second piece of evidence was what was said by Mrs Chan to Susan in a conversation on 23 November 2021. The conversation was recorded by Susan. The context for the conversation was an exchange of messages involving the siblings concerning ownership of the Property. Objection was originally taken by the plaintiff to the recording or the transcript of it being admitted into evidence. In cross-examination of Mrs Chan, it became clear, however, that she had consented to the conversation being recorded and accordingly I admitted it. The conversation lasted for a while and the transcript of it admitted into evidence was quite lengthy. I do not propose to set it out.

29. [88]

    It is sufficient to record that Mrs Chan makes a number of statements in the conversation including:

    1. (1)

       It’s Susan’s house. Not my house.

    2. (2)

       The house is not mine. It’s not in my name.

    3. (3)

       Saying to Susan that “they” (being her siblings) “want your house” and “they want to snatch your house now”.

    4. (4)

       The house is in your name, so you won’t lose to them.

    5. (5)

       Don’t ask me. It’s not up to me to make a decision. The house is Susan’s. Whatever you want to do, go and talk to Susan.

30. [89]

    The statements are quite inconsistent with the case propounded by Mrs Chan in these proceedings, and the statements made by her in her affidavits. They were admitted as admissions against interest.

31. [90]

    None of Lauren, Tammie or Robert was a party to the alleged 1990 discussion.

32. [91]

    Lauren gave evidence that she handed her wages to her parents who in return would give her sufficient funds for personal expenses and occasional treats, with the balance being applied to family expenses. In relation to the purchase of the Property she said she recalled being at the Stanmore Unit in 1990 when Mr Chan suddenly said that he had bought a place at Ashfield. Susan was apparently at home when the revelation was made but did not contradict the assertion by Mr Chan.

33. [92]

    Tammie gave evidence that her income was paid into a Commonwealth Bank account and that Mr Chan held the passbook for that account. She understood they were all working and saving towards a family home and that this understanding was based on a number of family discussions in the late 1990’s, although understandably, no more precise timeframe could be given.

34. [93]

    In relation to the purchase of the Property, Tammie gave evidence that in about late 1990, her parents told “us children” that they had bought a property at XX Hugh Street Ashfield and that they were going to knock the house down. She further recalled Mr Chan saying that he intended to build a new house for the family. On her account, no mention was made of the Property being bought in Susan’s name.

35. [94]

    Tammie also recalled a conversation with her parents in which Mr Chan said that “we needed to borrow money, and that because [Susan] was working at the bank we would get more favourable terms if the loan was in her name”. She did not recall any discussion of the Property before its purchase. She also recalled a later conversation after the Property had been purchased in which Mr Chan said “that the money we had all contributed had helped us get this house”.

36. [95]

    Robert’s evidence was limited to the effect that he and his siblings gave “some of our earnings to our parents for them to use for family purposes.” He did not give any evidence of any discussions at the time of the purchase of the Property.

37. [96]

    Tammie’s husband, Gavin Handley, gave evidence of discussions with his wife including one in “around 1990” when she told him her parents had identified a property in Ashfield, they may wish to purchase for the family to live in. This was admitted only as evidence of the words spoken and not for their truth.

38. [97]

    The only other “interested” witness was Susan’s husband Dennis Wong. He gave evidence of a discussion with Mrs Chan in about 1998 or 1999 on a holiday in Port Douglas where Mrs Chan said:

39. [98]

    Further, in about 2001, Mr Chan said to him in English:

40. [99]

    Mr Wong was not seriously challenged in cross-examination other than that he was seeking to give evidence in support of his wife’s position.

41. [100]

    The only “disinterested” witness – in the sense of unrelated to any of the parties – to give evidence bearing on whether the Property was intended to be beneficially owned by Susan, was Ms Sibson. She was a close friend of Mr and Mrs Chan.

42. [101]

    She gave evidence that she recalled visiting the Property when the house was being built by Mr Chan and him saying to her:

43. [102]

    When she visited Mr and Mrs Chan at the Property in the 1990’s, Mr Chan said to her on a number of occasions:

44. [103]

    This was said in front of Mrs Chan, who would sometimes agree and say “It’s not our house”.

45. [104]

    Ms Sibson was master of ceremonies at Mr Chan’s funeral. After Mr Chan died, Mrs Chan said to Ms Sibson in response to a question of whether Mr Chan had left a will:

46. [105]

    There were also subsequent statements by Mrs Chan to Ms Sibson to similar effect.

47. [106]

    Ms Sibson was an impressive witness. She maintained her evidence in cross-examination, which I accept. Nothing was put to Ms Sibson as to why she was not telling the truth or was otherwise mistaken in her recollection.

48. [107]

    Having considered all of the evidence on the point, I am far from satisfied that there was an agreement to the effect contended for by the plaintiff, or that the common intention of Mr Chan, Mrs Chan and Susan was as alleged by the plaintiff.

49. [108]

    I am satisfied that the agreement was to the effect contended for by Susan.

50. [109]

    The primary evidence in support of the plaintiff’s case – being that given on affidavit by Mrs Chan – was contradicted by her evidence in cross-examination. It is also contrary to her own diary entry in October 2021 and what she said to Susan in the recorded conversation on 23 November 2021.

51. [110]

    As set out above, there was no probative evidence to suggest that Mrs Chan’s capacity to give evidence was somehow impaired, let alone that it only impacted what she said in 2021 and in the witness box, but not what she stated in affidavit’s sworn in the intervening period.

52. [111]

    Having observed Mrs Chan carefully in giving her evidence in the witness box, and conscious of the limitations in the exercise, whilst at times Mrs Chan appeared a little confused, she did not appear to me to be lacking in capacity or to not understand what she was being asked. It is to be remembered that her answers in cross-examination were consistent with what she said to Tammie in October 2021 (as recorded in her diary) and to Susan on 23 November 2021. There was absolutely no suggestion that Mrs Chan suffered from any condition impairing her memory in 2021.

53. [112]

    The statements made by Mrs Chan in October and November 2021 are, to my mind, quite inconsistent with what Mrs Chan deposed to in her affidavits. Those earlier statements are consistent with Susan’s case that the house was intended to be hers.

54. [113]

    Perhaps most importantly, the case advanced by Mrs Chan is contradicted by the evidence given by Ms Sibson. That evidence is clear and consistent. Her evidence is only consistent with Susan’s case and is inconsistent with the case advanced by Mrs Chan. As set out above, I accept Ms Sibson’s evidence – there was no reason for her not to tell the truth and nothing to suggest she was mistaken in her recollection.

55. [114]

    Susan’s case is also supported by the evidence given by her husband, Mr Wong, of the statements made to him by both Mr Chan and Mrs Chan which are inconsistent with the case advanced by Mrs Chan. If this evidence stood alone there might be reason to question whether Mr Wong is simply giving evidence to assist his wife’s case. The evidence, however, does not stand alone.

56. [115]

    The evidence of Lauren and Tammie as to what their parents said to them does not, in my view, advance the plaintiff’s case, or significantly damage Susan’s. The statements made to them by their parents are quite general and are readily explicable by the fact that it was agreed by all that the Property would be a family home – in the sense that all six members of the Chan family would live in the home.

57. [116]

    I accept Susan’s evidence of the conversation and the arrangement then reached. I do not regard the statements made by Susan in her father’s eulogy or the introduction to the family history book as overly significant. The particular phrasing is readily applicable by the context and a desire to speak respectfully and complimentary of her parents.

58. [117]

    Susan’s failure to mention the 1990 Agreement in the WhatsApp messages many years later is a little more troubling in circumstances where, unlike the eulogy and introduction to the book which were, or were intended to be, relatively public statements, there was no obvious reason for Susan to hold back in dealing with her siblings. An examination of the messages reveals a fairly frank and willing expression of views. Having regard to the significant body of other evidence consistent with Susan’s case and inconsistent with the plaintiff’s, the failure to mention the 1990 agreement contended by Susan in the messages does not cause me to reject her account. I thus do not accept the contention that it was only when Susan subsequently helped her father paying his debts that he first said to her that the Property would be hers.

59. [118]

    Nor do I regard it as inherently improbable that, although Susan may initially have been considering the purchase of an investment property from which she would earn rental income, she ultimately acquired what became the family home. That circumstance does not provide a proper basis to reject her evidence concerning the events of 1990.

60. [119]

    I accept that in addition to the $80,000 home loan taken out by Susan, the general purpose loan of $20,000 taken out at the same time was also used towards the purchase price. Susan gave positive evidence that it was and no other plausible need for or use of those moneys was put forward by the plaintiffs.

61. [120]

    Resort to general notions of fairness or improbability is not of much assistance in the present case. It is far from obvious that the arrangement described by Susan was necessarily advantageous to her. In particular, if, as I am inclined to accept, the balance of the purchase price – on top of the $100,000 borrowed by Susan – came also from (or substantially from), Susan’s money which was controlled by Mr Chan. On this basis the arrangement was not one-sided in Susan’s favour, as she was paying for the whole of the purchase price.

62. [121]

    Even if this is not accepted, Susan nonetheless assumed a liability by taking out a loan or loans for about half or a little more than half of the purchase price of the Property. No part of the plaintiff’s version of the agreement suggested that everyone would be responsible for repayment – Susan was responsible, yet got nothing in return because she held all of the Property on trust for her parents.

63. [122]

    Furthermore, Susan’s borrowing capacity and purchase of the Property enabled the family of six to move out of the two bedroom Stanmore Unit and move to far better accommodation in which all members of the Chan family – and particularly Mr and Mrs Chan – would be able to live for as long as they wished, including the rest of their lives. It also did not appear to be in dispute that Mr Chan felt a sense of shame with the family of six living in a two bedroom unit.

64. [123]

    It is also far from clear that the only way the admitted concessionary interest rate on the housing loan could be achieved was by the Property being put entirely in Susan’s name. This was really the only reason put forward by the plaintiff for the Property being in Susan’s name. Susan gave evidence, which I accept, that Mr Chan would have been able to take advantage of the staff home loan rate if he applied with Susan for the loan. I accept that part of her evidence in this regard was given in re-examination after a conference with counsel. However, the re-examination was only clarifying an answer in cross-examination that was to the same effect, although perhaps not as clear. The evidence in re-examination does not denude Susan’s evidence on this topic of any probative value.

65. [124]

    Further, the $80,000 housing loan was for a little less than half the purchase price. In these circumstances, there is no reason why the Property could at least have been jointly held by Susan and Mr Chan (or other members of the Chan family), had that been the intention.

66. [125]

    As set out above, I incline to the view that $75,000 of the purchase price which was not borrowed, was sourced from savings made by Susan to which Mr Chan had access. The evidence was admittedly quite sparse on the part of both sides. Susan gave evidence of a discussion with her father at the time as to how much she had in savings but cannot now recall what her father said. Susan is not to be criticised for not being able to produce bank statements for the time. She went to every effort to seek to obtain the records but was not successful.

67. [126]

    The analysis put forward by Mr Horowitz in closing on behalf of Susan, based on the available evidence, demonstrates that it was possible for Susan to have accumulated savings in excess of $75,000 at the time.

68. [127]

    Whilst there is evidence that Mr Chan had a gambling problem and used Susan’s money to fund that problem, the available records show this was in 1992. Susan also gave evidence that her employer, Westpac, advised her at the time of the substantial withdrawals. There is nothing to suggest any earlier widespread use by Mr Chan of Susan’s money and it is reasonable to assume that if there was, Westpac would have picked it up as they did later.

69. [128]

    Susan also gave evidence, which I accept, that insofar as she was gifting money to her father, it was not all of the money in her account but only amounts to be used on household expenses, reflecting what she understood her siblings were also doing – providing money to meet household expenses.

70. [129]

    I do not regard the absence of a number of documents supporting Susan’s evidence as overly significant. This was a point made by counsel for the plaintiff. The same could be said, with perhaps even more force, in relation to the plaintiff’s claim. As I have said elsewhere, Susan is not to be criticised for the lack of documentation. She produced what records she had and sought, without success, to obtain what she did not have. The absence of documentation is a feature of the case as a whole. I have obviously based my findings on the material available in evidence.

71. [130]

    Against this, the evidence said to support the proposition that the balance of the purchase price came from pooled family funds was general in nature.

72. [131]

    The general evidence led on this topic was to the effect that the family pooling was to pay for general household expenses such as electricity, water, food and the like. There is no overly probative evidence that the money was to enable a new family home to be purchased, let alone even a rudimentary analysis to suggest that $75,000 was available.

73. [132]

    I do not regard Mr Chan’s 2002 statutory declaration as assisting the plaintiff. It supports Susan’s case. The clear effect of it is that Mr Chan has no claim to the Property. Seeking to read it as suggesting Mr Chan had some past claim which is no longer being pursued is strained and unnatural.

74. [133]

    For these reasons, I reject the express and common intention constructive trust claims advanced by the plaintiff. I accept that the agreement was to the effect contended for by Susan. This is not a case in which it could be said that the Property was “purchased by” two persons (Mr and Mrs Chan) “in the name of” another (Susan): Bosanac v Commissioner of Taxation (2002) 275 CLR 37; [2002] HCA 34, at [76] per Gageler J. Beneficial Ownership was intended to be the same as legal ownership.

75. [134]

    In these circumstances the purchase money resulting trust claim does not arise.

Was Mrs Chan in a de facto relationship with Mr Chan at the time of his death in 2018?

1. [135]

   The other factual issue litigated at the hearing was whether Mrs Chan and Mr Chan were in a de facto relationship at the time of Mr Chan’s death.

2. [136]

   It was contended by the plaintiff that if the Court upheld the trust claim, the Court should find that Mr and Mrs Chan held their beneficial interests as joint tenants and as such, by virtue of the principles of survivorship, Mrs Chan took the whole interest on Mr Chan’s death.

3. [137]

   I granted leave to the plaintiff’s counsel at the conclusion of the hearing to provide me with any authority in support of the proposition of joint ownership. Counsel for the plaintiff quite properly provided a reference to Delahunt v Carmody (1986) 161 CLR 464 at 473; [1986] HCA 67 per Gibbs CJ (Wilson, Brennan, Deane and Dawson JJ agreeing). That authority confirms that absent agreement to the contrary, where there is a resulting trust declared in favour of two or more persons, equity presumes a tenancy in common, reflecting the position at law pursuant to s 26 of the Conveyancing Act 1919 (NSW).

4. [138]

   If they held their interests as tenants in common, in circumstances where Mr Chan died intestate, whether Mr Chan had a spouse at the time of death, is relevant to who gets a grant of administration: see s 63 of the Probate and Administration Act 1898 (NSW); and The Estate of Daniele Claudio Legler [2024] NSWSC 726 at [255] (Legler).

5. [139]

   Given my conclusion above that no trust arises, the de facto question does not require determination. As the issue was argued, I will nonetheless determine it.

6. [140]

   I set out the law in relation to whether one person is considered the “spouse” of another in Legler at [256]ff borrowing heavily from what Bell P said in Estate of the Late Shirely Joan Violet Gardner; Bernego v Leaney [2019] NSWSC 1324 at [12]-[44]. I do not repeat what I there said.

7. [141]

   Counsel for the plaintiff focussed in the present case on the circumstances listed in s 4(2) of the Property (Relationships) Act 1984 (NSW). I deal with the relevant circumstances below.

8. [142]

   It is necessary to set out both s 4(1) and (2). They provide as follows:

9. [143]

   Section 4(1) defines what is a de facto relationship. Section 4(2) provides a list of non-exhaustive circumstances to be considered by the Court in determining whether the definition in s 4(1) is satisfied.

10. [144]

    In Legler at [264] to [267], I stated:

11. [145]

    These matters must be kept firmly in mind in the present case.

12. [146]

    I turn now to consider the evidence, which was quite sparse and of a general nature.

13. [147]

    Mr Chan divorced Mrs Chan in 1999. This is because he got married to his new wife, Ms Sandar. He moved out of the Property to live with Ms Sandar.

14. [148]

    Mrs Chan gave evidence in cross-examination that this made her very upset. The other children, save for Robert gave similar evidence that they were upset by their parents’ divorce.

15. [149]

    After the divorce, Mrs Chan opened her own bank account.

16. [150]

    Mr Chan moved back to the Property in 2005.

17. [151]

    Ms Sandar’s relationship with Mr Chan was thus, in the scheme of things, quite short. It ended many years prior to his death. In these circumstances it is perhaps of less relevance than other evidence. In any event, Ms Sandar admitted that their relationship was a sexual relationship for a period. This was contrary to what she had stated in her affidavit.

18. [152]

    Mrs Chan, who is perhaps in the best position to give evidence as to her “relationship” with Mr Chan, gave evidence in cross-examination that her relationship with Mr Chan after he moved back into the Property in 2005 was not the same as when they were married. Mr Chan did not sleep in her bedroom. He slept in the living room on a mattress. Mrs Chan no longer had a romantic relationship with Mr Chan. They both maintained separate bank accounts, she did not use the money in his bank account, and he did not use the money in hers.

19. [153]

    Each of Tammie and Lauren gave evidence of a general nature that after the divorce their parents continued to live together as they did before they were divorced. They shared all aspects of domestic life. Lauren gave evidence that her father slept in the lounge room sometimes because lying on the floor relieved his chronic pain.

20. [154]

    Robert gave evidence of his parents visiting him in Japan in 2015. Three photographs of Mr and Mrs Chan together on this trip were admitted into evidence through Robert. He also gave evidence that he was not aware initially that his parents had in fact divorced.

21. [155]

    Ms Sandar also gave evidence on the topic. She says that after arriving in Australia in 2001 and meeting Mrs Chan and their children, she formed the belief that Mr Chan was still in a relationship with Mrs Chan. She says she observed the two:

22. [156]

    Ms Sandar also gave evidence of Mr Chan calling Mrs Chan his wife and of socialising with the two with Mr Chan telling Ms Sandar that he loved Mrs Chan. Two photographs were admitted into evidence of Mr and Mrs Chan at events with Ms Sandar.

23. [157]

    I consider first the “circumstances” identified in s 4(2) then return to s 4(1) and in particular whether there was a “relationship” between two adult persons “who live together as a couple”.

24. [158]

    As to s 4(2)(a) and (b), the “relationship” lasted for 13 years following Mr Chan’s return in 2005 at the one residence, the Property.

25. [159]

    As to s 4(2)(c), I am not satisfied that there was any sexual relationship between Mr and Mrs Chan. I prefer Mrs Chan’s direct evidence in this regard, rather than the indirect general evidence of others.

26. [160]

    As to s 4(2)(d), I am not satisfied that there were any financial dependence or any arrangements for financial support between the parties. Again, I prefer the direct evidence of Mrs Chan in cross-examination.

27. [161]

    As to s 4(2)(e) – they both resided at the Property which was in the name of Susan. No property was acquired during the “relationship”.

28. [162]

    The circumstances in ss 4(2)(f) and (i) are interrelated in the present case in that there was some general evidence given of Mr and Mrs Chan socialising together and going on a holiday to Japan together in 2015 to see Robert. The principal evidence of the two socialising together is from Ms Sandar. Importantly, Mrs Chan did not give any direct evidence of any renewed commitment to a shared life with Mr Chan after 2005 and her evidence in cross-examination is somewhat inconsistent with their being one.

29. [163]

    Section 4(2)(g) has no relevance in the present case.

30. [164]

    As to s 4(2)(h), there was some general evidence of household duties being shared. None, however, was given by Mrs Chan. That evidence included shared meals with each cooking for the other from time to time.

31. [165]

    Having now dealt with each of the circumstances I return to the relevant question posed by s 4(1) – whether Mr and Mrs Chan were in a relationship living together as a couple.

32. [166]

    As McColl JA (with whom Beazley JA agreed) stated at [78] in Hayes v Marquis [2008] NSWCA 10, “the concept of ‘living together’, will always be something different from living together as a couple, one of the critical requirements for a de facto relationship.”

33. [167]

    The expression “as a couple” adds an important element to the notion of simply “living together”: see Legler at [187].

34. [168]

    At [288] to [290] in Legler I stated:

35. [169]

    Evaluating all of the evidence, I am not satisfied that at the time of Mr Chan’s death in 2018, he and Mrs Chan were in a de facto relationship. Whilst there is no doubt that they were living together under the one roof at the Property, I am not satisfied that they were in a relationship living together as a couple.

36. [170]

    It is important to bear in mind in my view that the relationship is said to be one that commenced in 2005 when Mr Chan returned to live at the Property. During the ensuing 13 years there was no sexual or romantic relationship between Mr and Mrs Chan and no financial dependence. Mr Chan slept on the couch in the living room. General evidence by third parties to the “relationship” of Mr and Mrs Chan dining and socialising together does not persuade me that they were in a relationship living together as a couple. Those witnesses were not living with Mr and Mrs Chan. The trip to Japan to see Robert in 2015 also does not cause the scales to be tipped in favour of a de facto relationship. Robert was their son and it’s not surprising they travelled together to see him. The evidence concerned a single trip, and no details were provided of any particular behaviour by Mr and Mrs Chan to support the contention they were in a de facto relationship.

37. [171]

    In any event, having concluded that no trust arises, the de facto relationship issue does not require determination.

Conclusion and orders

1. [172]

   For these reasons, the claims advanced by the plaintiff fail.

2. [173]

   Nothing was said to suggest that costs should not follow the event.

3. [174]

   I will give the parties a short period to agree orders, failing which I will determine any remaining issues on the papers.

4. [175]

   The Court orders that:

   1. (1)

      The parties are to confer to seek to agree on orders in accordance with these reasons and provide any agreed orders to my Associate by no later than 1 May 2026.

   2. (2)

      In the event that agreement cannot be reached, the parties are to each provide to my Associate, by no later than 1 May 2026, the orders for which they contend together with submissions in support of those orders of no more than five pages, upon which I will determine the remaining issues on the papers.