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Chan v Liu

Chan v Liu

Case [2020] VSCA 28 25 February 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2019 0117

PAUL KWOK FAI CHAN	First Applicant
and
JUDY PUI CHU WONG	Second Applicant
v
ZHENZHU LIU	First Respondent
and
REGISTRAR OF TITLES	Second Respondent

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JUDGES:	BEACH, KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 February 2020
DATE OF JUDGMENT:	25 February 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 28
JUDGMENT APPEALED FROM:	[2019] VSC 650 (Forbes J)

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REAL PROPERTY – Caveat – Appeal against dismissal of application to remove caveat under s 90(3) of Transfer of Land Act 1958 – Respondent said to have failed to settle on time – Factual dispute whether parties agreed to extension of time for settlement – Applicants entered into contract to sell property to third party after purporting to rescind contract with respondent – Whether serious question to be tried whether respondent has caveatable interest in property – Whether balance of convenience favoured maintenance of caveat –Strong basis that respondent elected not to rely on performance of contract – Maintenance of caveat precluded applicants to perform contract with third party – Leave to appeal granted – Appeal allowed – Piroshenko v Grojsman (2010) 27 VR 489 considered.

PRACTICE AND PROCEDURE – Ground of appeal on which applicants succeeded not raised with primary judge – Whether applicants precluded from raising new argument on appeal – Discretion to allow new argument – Appeal from interlocutory judgment – No further evidence would have been adduced – Coulton v Holcombe (1986) 162 CLR 1; Doherty v Murphy [1996] 2 VR 553 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr L P Wirth	L H Lee & Co
For the First Respondent	Mr N Jones	Katsu Lawyers
For the Second Respondent	No appearance

BEACH JA
KYROU JA
KAYE JA:

The applicants seek leave to appeal the decision of a judge of the Supreme Court, sitting in the Practice Court, dismissing their application, for an order for removal of a caveat of a property owned by them at 357 Burwood Highway, Burwood (‘the property’).[1]
[1]Chan v Liu [2019] VSC 650 (‘Reasons’).

By a contract of sale dated 21 July 2018, the first respondent (‘the respondent’) agreed to purchase the property from the applicants for the sum of $2,450,000. Pursuant to the contract the date for settlement was 22 July 2019. The parties disagree whether, after they had entered into the contract, they agreed to an extension for the date of settlement to 22 August 2019. Settlement did not occur on 22 July 2019 and the applicants sought to rescind the contract. The respondent lodged a caveat, on the basis that the applicants did not validly rescind the contract as the date of settlement had been extended to 22 August 2019.

The judge found, on the facts, that the respondent had established that there was a serious issue to be tried as to whether he had a caveatable interest in the property, and that the balance of convenience favoured maintenance of the caveat…

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 Liu

Details

AGLC: Chan v Liu [2020] VSCA 28
Case: [2020] VSCA 28
Decision Date: 25 February 2020

CaseChat Overview and Summary

In the matter of Chan v Liu, the Victorian Court of Appeal addressed an appeal against the dismissal of an application to remove a caveat lodged over a property. The primary judge had determined that the respondent, Liu, had failed to settle on time, leading to the applicants, Chan, entering into a contract to sell the property to a third party after purporting to rescind the contract with Liu. Liu maintained that an agreement existed to extend the time for settlement, which the applicants denied. The Court was tasked with determining whether Liu had a caveatable interest in the property and whether the balance of convenience favoured the maintenance of the caveat.

The legal issues before the Court included whether there was a serious question to be tried regarding Liu's interest in the property, whether the balance of convenience favoured the maintenance of the caveat, and whether the applicants were precluded from raising a new argument on appeal as it had not been raised before the primary judge. The Court considered whether the applicants had elected not to rely on the performance of the contract with Liu and whether the maintenance of the caveat would preclude the applicants from performing the contract with the third party. The Court also assessed whether the applicants could introduce a new argument on appeal, despite not raising it before the primary judge.

The Court of Appeal found that there was a strong basis for Liu's assertion that she had elected not to rely on the performance of the contract with the applicants. It was also determined that the balance of convenience favoured the maintenance of the caveat because the applicants would be unable to perform the contract with the third party if the caveat remained. The Court allowed the appeal, noting that the applicants had not been precluded from raising the new argument on appeal as no further evidence would have been adduced if the argument had been raised earlier. The Court granted leave to appeal and allowed the appeal, considering precedent from Piroshenko v Grojsman and the discretion to allow new arguments on interlocutory appeals as seen in Coulton v Holcombe and Doherty v Murphy.

The final orders of the Court of Appeal were to allow the appeal, set aside the decision of the primary judge, and remit the matter back for further consideration in light of the Court of Appeal's findings. The Court emphasised that the applicants were not precluded from raising the new argument on appeal, and the discretion to allow such arguments was exercised in the context of the specific circumstances of the case.

Orders