22-26, 29-31 August; 1-2, 5 September; 15-16 November 2011
Decision date:
15 December 2011
Jurisdiction:
Equity Division
Before:
Rein J
Decision:
1. First defendant in the 2007 proceedings and the defendant in the 2009 proceedings liable to the plaintiff for the amount of $235,514.93.
2. Claim by the plaintiff against the second defendant in the 2007 proceedings stood over.
Catchwords:
REAL PROPERTY - where as part of their divorce settlement in the Family Court, the plaintiff (husband) and the first defendant (wife) were confirmed as tenants-in-common in equal shares of a unit and they were both named as owners on the certificate of title - where the first defendant sold the unit without the knowledge or consent of the plaintiff and forged the plaintiff's signature on the contract of sale, the transfer and two authorities which purported to authorise her to act on the plaintiff's behalf in relation to the sale and also to receive all of the net proceeds of sale - where the first defendant alleges an oral agreement whereby the plaintiff agreed to give her his half-interest in the unit in return for her relinquishing her alleged interest in another property and the first defendant also alleges that the sale occurred with the knowledge and consent of her ex-husband and that he authorised her to sign his name on the conveyance documents - issues of credit of witnesses - whether there was an agreement between the plaintiff and the first defendant that the plaintiff would pay money to the first defendant periodically in relation to a partnership business that they ran together which was subsequently run solely by the plaintiff - where the plaintiff also brings an action against the Registrar-General seeking compensation from the Torrens Assurance Fund for the loss of his interest in the unit
NEGLIGENCE - where the plaintiff brings an action in negligence against the solicitor who handled the sale of the unit - where the plaintiff and the first defendant spoke Chinese but the solicitor did not - where the first defendant and the plaintiff were completely unknown to the solicitor - where the first defendant attended the solicitor's office twice with her cousin who was presented to the solicitor as her ex-husband - where the solicitor only took instructions from the first defendant and made no effort to ensure that the person he thought was her ex-husband understood the effect of those instructions - where the first defendant presented the signed contract of sale, transfer and two authorities to the solicitor on which the plaintiff's signature was forged by the first defendant - whether there was a duty on the part of the solicitor to seek photographic identification to ensure that his clients were who they said they were - checking that the certificate of title is not a forgery is not sufficient - CAUSATION - whether the solicitor's breaches of duty…
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 Chen v Gu; Chen v Nguyen
Sign in free to access the full text
Details
AGLC
Chen v Gu; Chen v Nguyen [2011] NSWSC 1622
Case
[2011] NSWSC 1622
Decision Date
CaseChat Overview and Summary
In the case of Chen v Gu; Chen v Nguyen, the plaintiff, Chen, brought an action against the first defendant, Gu, and her solicitor, Nguyen. Chen and Gu were tenants-in-common of a unit, and Gu sold the unit without Chen's knowledge or consent, forging Chen's signature on the necessary documents. Chen also sought compensation from the Registrar-General under the Torrens Assurance Fund for the loss of his interest in the unit. Chen further brought an action against Nguyen, alleging negligence in handling the sale of the unit. Chen argued that Nguyen failed to take reasonable steps to verify the identities of the parties involved and did not ensure that Gu's alleged ex-husband understood the instructions given. Chen also claimed that Nguyen wrongfully converted the certificate of title and the cheques representing the proceeds of sale by acting on the forged authority given by Gu.
The court was required to decide several legal issues, including whether there was an agreement between Chen and Gu that Chen would transfer his half-interest in the unit to Gu in return for her relinquishing her alleged interest in another property. The court also had to determine if there was a duty on Nguyen's part to seek photographic identification to ensure that the parties were who they said they were and whether Nguyen's breaches of duty caused Chen's loss. Additionally, the court had to consider whether Gu's false attestation of Chen's signature on the transfer broke the chain of causation.
The court found that there was no agreement between Chen and Gu that Chen would transfer his interest in the unit to Gu. The court also held that Nguyen did not owe a duty to seek photographic identification of the parties and that his breaches of duty did not cause Chen's loss. Furthermore, the court determined that Gu's false attestation of Chen's signature on the transfer did not break the chain of causation. The court found that Nguyen did not wrongfully convert the certificate of title or the cheques representing the proceeds of sale as he acted on the forged authority given by Gu.
The final orders of the court were that Chen's action against Gu was dismissed, and Chen's action against Nguyen was also dismissed. Chen's claim for compensation from the Registrar-General under the Torrens Assurance Fund was dismissed as the court found that there was no forgery of the certificate of title. The court also found that Nguyen was not liable for conversion of the certificate of title or the cheques representing the proceeds of sale as he acted on the forged authority given by Gu.