Bo v Wong

[2014] NSWSC 26

Supreme Court

New South Wales

Medium Neutral Citation:

Bo v Wong [2014] NSWSC 26

Hearing dates:

23/01/2014

Decision date:

23 January 2014

Jurisdiction:

Equity Division

Before:

McDougall J

Decision:

Grant limited injunctive relief; decline to extend caveat.

Catchwords:

PROCEDURE - Interlocutory orders -Caveats and injunctions - whether grounds to grant injunctive relief freezing amount of proceeds of sale

REAL PROPERTY - caveats - extension -whether appropriate to extend caveat where defendant entered into sale with third party

PROCEDURE - Application of Civil Procedure Act 2005 (NSW), s 56

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Category:

Procedural and other rulings

Parties:

Xuan Bo (Plaintiff)
Lai Sim Wong (Defendant)

Representation:

Counsel:
R N Winfield / W Chan (Plaintiff)
A Kuklik (Defendant)
Solicitors:
Excelsior Lawyers (Plaintiff)
C&L Solicitors (Defendant)

File Number(s):

2014/24368

Judgment (ex tempore - revised 3 February 2014)

1. HIS HONOUR: The plaintiff claims to have advanced the sum of $100,000 to the defendant on condition, among other things, that if and when the defendant sells a home unit at Killara, the sum of $100,000 would be repaid from the net proceeds of sale. The plaintiff has lodged a caveat to protect what she asserts is her equitable interest, under an equitable charge, arising from the alleged agreement. The defendant has served a lapsing notice and the caveat is due to lapse tomorrow unless extended.

1. The evidence suggests that the defendant has sold the property and that settlement is due in the near future. There is a mortgage on the property. The amount secured by the mortgage is unknown.

1. The plaintiff seeks orders ex parte extending the caveat or in effect freezing the net proceeds of sale, to the extent of $100,000.

1. It is inappropriate to extend the caveat in circumstances where the defendant has entered into a sale with a third party who, presumably, took on the basis that the defendant would be able to deliver title.

1. There may be some grounds for granting injunctive relief, in respect of the proceeds of sale, so that the sum of $100,000 (should the net proceeds of sale extend so far) is not disposed of until the underlying dispute is resolved.

1. There is some evidence that the defendant is proposing to remit the net proceeds of sale outside Australia, and herself to return to Hong Kong.

1. The matter was pressed as an ex parte application. As I was in the course of giving reasons, it appeared that someone might have instructions to represent the defendant's interest. Accordingly I interrupted the delivery of reasons to enquire why, at 2.35pm, the ex parte application is now inter partes.

[Counsel addressed.]

1. It transpired that the appearance of Mr Kuklik, for the defendant, had been notified to the Court and to the plaintiff but that for some reason the transmission had not made its way through to me. In those circumstances, although remaining of the view that there was material which could support the grant of interlocutory relief freezing an amount of the proceeds of sale, I took the view that it was better to intimate those views to Mr Kuklik and then to stand the matter down to see if the parties could sort themselves out.

1. Of particular concern in this matter is the fact that the amount of the claimed debt, and the maximum amount to be frozen pending resolution of that claim, is $100,000 (excluding interest). I expressed the view, which I continue to hold, that in those circumstances the requirements of s 56 of the Civil Procedure Act 2005 (NSW) which, of course, has application to litigants and to their legal representatives, indicate very strongly that if at all possible the real issues in dispute should be identified and dealt with, and preliminary and possibly pointless interlocutory skirmishes should be avoided.

1. I refer to that in particular because the plaintiff wishes to have provided to her information in relation to the sale; when it occurred, what was the sale price, when is settlement to be expected and what are the likely net proceeds of sale after allowing for costs and payment out of the mortgage.

1. I can understand why it is of some importance to the plaintiff to have that information. It seems to me that unless there is some insuperable reason of confidentiality requiring that it not be given to her, parties acting reasonably and in accordance with their obligations under s 56 would cooperate to provide it.

1. The net result of standing the matter down is that the parties have agreed (on the part of the defendant, without admissions) on orders to be made to move the matter forward. I will make those orders in a minute, and before doing so will repeat only that having regard to the amount in issue it will be wise for the parties to consider how they can retain the benefit of that amount for themselves rather than dissipating it on their lawyers.

1. On the undertaking of the plaintiff's solicitor to pay the necessary filing fee I grant the plaintiff leave to file in court the summons initialled by me and dated today's date. I grant the plaintiff leave to file in court her affidavit affirmed today's date. I direct the defendant to file and serve her notice of appearance by 5pm on 24 January 2014. I note that the plaintiff gives to the Court the usual undertaking as to damages and the undertakings numbered 1, 2 and 3 (as renumbered) of the schedule of undertakings initialled by me and dated today's date.

1. By consent but without admissions I make orders and give directions in accordance with paragraphs 1 to 5 of the short minutes of order initialled by me and dated today's date.

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Decision last updated: 05 February 2014