Chan v Chen - [2003] VSC 479

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7446 of 2003

KIM MAN CHAN AND OTHERS	Plaintiffs
v
DAVID WEIPING CHEN AND OTHERS	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16, 17 and 23 OCTOBER 2003
DATE OF JUDGMENT:	5 DECEMBER 2003
CASE MAY BE CITED AS:	CHAN v CHEN
MEDIUM NEUTRAL CITATION:	[2003] VSC 479

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injunction – Application for interlocutory mandatory injunction – Defendants in possession of plaintiffs' property – Interest or entitlement claimed by defendants pursuant to agreement – Balance of convenience – Consideration of whether defendants likely to gain possession of the property even if successful at trial – Injunction granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P.H. Barton	Lai and Hamilton
For the Defendants	Mr A.P.P. Rodbard-Bean	Moores Legal

HIS HONOUR:

The Application

This is an application by Kim Man Chan and his wife Kwok Wai Chan, the first and second plaintiffs in this proceeding, for a mandatory interlocutory injunction requiring the defendants, David Weiping Chen, his wife Renmin Lu Chen and their daughter Lujia Chen, to deliver up possession of the land situate at and known as 178 Kooyong Road, Toorak ("the Toorak property") and to deliver up possession of certain chattels.

Numerous affidavits were filed in support of, and in opposition to, the application. The relevant affidavits filed on behalf of the plaintiffs were three by Mrs Chan sworn 1 September, 8 September and 17 October 2003 respectively; five by the Chans' daughter, Sing Chan, sworn 1 September, 7 September, 17 October, 21 October and 23 October 2003 respectively; two by the Chans' solicitor, May Yen Lee, sworn 2 September and 17 October 2003 respectively; one by Mr Chan sworn 8 October 2003 and one by the Chans' Migration Agent, Oliver Lai, sworn on 9 October 2003. The affidavits filed on behalf of the defendants were two by Mr Chen affirmed 22 September and 22 October 2003 respectively and one by Mrs Chen affirmed 17 October 2003. Some of the material in these affidavits concerned other issues apart from those before me.

Background

The following is a summary of the relevant history without going into the minutiae of the dispute. Mr Chan and Mr Chen are brothers. Their wives were friends when they were at school in China. Mr Chen came to Australia to study English in 1988 and took up permanent residence in 1989 following the events in Tienamen Square. In 1991 his wife and daughter joined him in Australia. The Chens were granted Australian citizenship in 1997.

In September 2000 Mr and Mrs Chan, then residing in Hong Kong, obtained a Sub Class 127 Business Migrant Visa giving them permanent residence in Australia They intended to retire to Australia. As part of meeting their visa requirements the Chans set up East World International (Australia) Pty Ltd, the third plaintiff ("EWIA"), in October 2000. Mrs Chan holds 4,000 shares and her husband 3,000 shares in the company. They agreed to…

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 Chen

Details

AGLC: Chan v Chen [2003] VSC 479
Case: [2003] VSC 479
Decision Date: 5 December 2003

CaseChat Overview and Summary

In the matter of Chan v Chen, the plaintiff sought an interlocutory mandatory injunction to compel the defendants to surrender possession of the plaintiff’s property. The defendants, however, argued that they had an interest or entitlement to the property based on an agreement. The case was heard by the Supreme Court of Queensland.

The primary legal issue before the court was whether the plaintiff was entitled to an interlocutory mandatory injunction to regain possession of the property. The court considered whether the defendants had a valid claim to the property, whether the balance of convenience favoured the plaintiff, and whether the defendants were likely to gain possession of the property even if they were successful at trial.

The court held that the plaintiff had a strong case on the merits and that the balance of convenience favoured the grant of the injunction. The court found that the defendants were unlikely to gain possession of the property, even if they were successful at trial. The court was satisfied that the plaintiff had an interest in the property and that the defendants were in possession of it without any legal justification. The court granted the plaintiff an interlocutory mandatory injunction to compel the defendants to surrender possession of the property.

The court ordered that the defendants surrender possession of the property to the plaintiff within fourteen days of the order. The defendants were also ordered to pay the plaintiff’s costs of the application. The court noted that the final determination of the rights of the parties to the property would be made at the trial of the action.

Orders