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Chan v Chan

Chan v Chan

Case [2020] VSCA 40 5 March 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0135

CHING LUNG CHAN and YING LIN	Applicants
v
CHING HA CHAN	Respondent

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JUDGES:	MAXWELL P, TATE and FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2019
DATE OF JUDGMENT:	5 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 40
JUDGMENT APPEALED FROM:	Chan v Chan (Unreported, County Court of Victoria, Judge A Ryan, 2 October 2018)

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LAND – Recovery of possession – Whether summary procedure for recovery of land under Order 53 County Court Civil Procedure Rules 2018 available or appropriate – Dispute between sister and brother about ownership of land – Whether brother a tenant at will or a licensee – Significant issues of fact in dispute – Proprietary estoppel – Whether sister held property on constructive trust for brother – Leave to appeal granted – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr J D S Barber	Juris Nexus Lawyers
For the Respondent	In person

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Tate JA. I agree with the orders which her Honour proposes, for the reasons which she gives.

TATE JA:

TABLE OF CONTENTS

Introduction and summary................................................................................

1

Dispute over ownership of Unit 1....................................................................

3

Commencement of County Court proceedings...............................................

4

The affidavit evidence........................................................................................

5

The judge’s reasons.............................................................................................

9

Grounds of appeal...............................................................................................

11

The history, purpose, and scope of Order 53...................................................

13

Was the summary procedure available and appropriate here?...................

25

(1) Are Michael and Lisa tenants at will or licensees?................................

25

(2) Does Carol hold Unit 1 on trust for Michael?.........................................

29

Conclusion...........................................................................................................

32

Introduction and summary

This matter arises from a dispute between a brother and sister over the ownership of land in Victoria. Ching Ha Chan (‘Carol’) is the registered proprietor of Units 1 and 2, 1256 Plenty Road, Bundoora. Carol paid the deposit on each unit using money given to her from her parents. Carol and her brother, Ching Lung Chan (‘Michael’), lived in Unit 2 while Carol rented out a number of other bedrooms in Unit 2 and all of the bedrooms in Unit 1. Carol used the rental income to service the mortgage repayments. When Michael married Ying Lin (‘Lisa’) he moved to Unit 1 with his wife and eventually collected the rent from the other tenants in Unit 1

for himself. Michael claims that the money their parents gave to Carol was to purchase Unit 2 for herself and to hold Unit 1 on trust for him.

Carol brought summary proceedings in the County Court to evict Michael and Lisa. She denied that she held Unit 1 on trust for Michael. A County Court judge made orders under Order 53 of the County Court Civil Procedure Rules 2018 in favour of Carol for the summary recovery of land.[1] Michael and Lisa, as the first and second applicants, now apply for leave to appeal from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chan v Chan

Details

AGLC: Chan v Chan [2020] VSCA 40
Case: [2020] VSCA 40
Decision Date: 5 March 2020

CaseChat Overview and Summary

Chan v Chan was a dispute between siblings over the ownership of a parcel of land. The case was heard and determined by the Supreme Court of Victoria, with the Court granting leave to appeal and subsequently allowing the appeal. The primary issue before the court was whether the summary procedure outlined in Order 53 of the County Court Civil Procedure Rules 2018 was available or appropriate for the recovery of land when significant issues of fact were in dispute. Additionally, the court considered whether the brother was a tenant at will or a licensee, and whether the sister held the property on a constructive trust for the brother.

The court examined the nature of the relationship between the siblings and the extent to which proprietary estoppel might apply. It was found that there were substantial factual disputes which precluded the use of summary procedure. The court held that the brother was not merely a licensee but had a more substantial interest in the property, potentially as a tenant at will. Furthermore, the court determined that there were significant grounds to believe that the sister held the property on a constructive trust for the benefit of the brother, necessitating a more thorough examination of the evidence and arguments presented.

Ultimately, the court concluded that the summary procedure was neither available nor appropriate given the complex factual issues and the potential application of proprietary estoppel. The court allowed the appeal and remitted the matter to the County Court for a full hearing to determine the respective rights of the parties. The final orders included a direction that the County Court conduct a comprehensive review of the case, taking into account all relevant evidence and legal principles, to ascertain the true nature of the brother's interest in the property and the applicability of a constructive trust.

Orders