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Chen v Song

Chen v Song

Case [2005] NSWSC 19 16 February 2005

Mortgages & Security Interests

Unconscionable Conduct

Breach of Contract

Equitable Estoppel

Property Law

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CITATION:
Chen v Song, Chen v Song [2005] NSWSC 19

HEARING DATE(S): 4-5/08/03, 14/08/03, 3-4/11/03, 16-20/02/04, 24-27/02/04, 4/03/04, 15-19/03/04, 21-23/06/04, 16-17/09/03

JUDGMENT DATE :

16 February 2005

JUDGMENT OF:
James J at 1

DECISION:
-

CATCHWORDS:
MORTGAGE - High interest short term loan - default - registration of mortgage - claim for possession - whether exception to indefeasibility - alleged forged mortgage - authority - whether defendants entitled to relief under the principles relating to unconscionability in Amadio - whether defendants entitled to relief under the Contracts Review Act - Fair Trading Act

LEGISLATION CITED:
Contracts Review Act
Fair Trading Act
Real Property Act

CASES CITED:
Asia Pacific International Pty Limited v Dalrymple [2000] 2 Qd R 229
Assets Co Limited v Mere Roihi [1905] AC 176
Commercial Bank of Australia v Amadio (1983) 151 CLR 447
Frazer v Walker [1967] 1 AC 569
Garcia v National Australia Bank Limited (1998) 184 CLR 395
Grgic v ANZ Banking Group Limited (1994) 33 NSWLR 202
Khan v Hadid [2003] NSWSC 1191
Klement v Pencoal Limited [2000] QCA 152
Mayer v Coe (1968) 88 W.N. (Pt 1) (NSW) 549
Mercantile Mutual Life Assurance Co Limited v Gosper (1991) 25 NSWLR 32
Multispan v Portland (No 2) [2001] NSWSC 1047
Permanent Trustee Co Limited v Frazis (1999) NSWSC 319
PT Limited v Maradona Pty limited (1992) 25 NSWLR 643
Rowe v B & R Nominees Pty Limited [1964] VR 477
Soyfer v Earlmaze Pty Limited [2000] NSWSC 1068
Storey v Advance Bank Limited (1993) 31 NSWLR 722
Yerkey v Jones (1939) 63 CLR 649

PARTIES:
Hwa Chu Chen v Young Soo Song & Anor
Hwa Chu Chen v Mi Kyung Song

FILE NUMBER(S):
SC 11075/02; 11074/02

COUNSEL:
A J Tudehope - Plaintiff
R K Newton - 1 & 2 Defendants
In Person - 3rd Defendant

SOLICITORS:
Paul C Fabian & Co - Plaintiff
N/A
N/A

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Wednesday 16 February 2005

11074/02 – Hwa Chu Chen v Mi Kyung Song
11075/02 – Hwa Chu Chen v Young Soo Song & Anor
JUDGMENT

1 HIS HONOUR: By consent these two proceedings were heard together. In proceedings 11074/02 the plaintiff Hwa Chu Chen (“Mrs Chen”) sued a single defendant Mi Kyung Song, also known as Dianne Song, who I will generally refer to in this judgment as “Ms Song”. In proceedings 11075/02 Mrs Chen sued two defendants Young Soo Song (“Mr Song”) and his wife Dong Im Song (“Mrs Song”).

2 In each of the proceedings Mrs Chen claimed possession of certain premises pursuant to a purported mortgage to her from the defendant or the defendants and payment of the amount which she claimed was due under the mortgage, together with certain ancillary relief. In proceedings 11074/02 Mrs Chen claimed possession of the whole of the land in Certificate of Title folio identifier 25/SP61618 being premises known as 125/6 Cowper Wharf Road, Woolloomooloo, pursuant to a purported mortgage from Ms…

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 Song

Details

AGLC: Chen v Song [2005] NSWSC 19
Case: [2005] NSWSC 19
Decision Date: 16 February 2005

CaseChat Overview and Summary

The case before the court involved a dispute between Chen, the plaintiff, and Song, the defendant. The plaintiff sought possession of a property due to a default in the payment of a high-interest short-term loan. The defendant claimed that the mortgage was forged and sought relief on the basis of unconscionability under the principles in Amadio and under the Contracts Review Act. The Fair Trading Act was also considered in the context of the relief sought by the defendant. The court had to determine whether there was an exception to the indefeasibility of the mortgage, and if so, whether the defendant was entitled to relief under the relevant statutes.

The central legal issues for the court to address were whether the mortgage was indeed forged and, if so, whether the principles of unconscionability in Amadio applied to grant relief to the defendant. Additionally, the court needed to examine whether the Contracts Review Act provided a basis for relief and whether the Fair Trading Act could be invoked in this context. The court had to balance the principles of indefeasibility of title with the equities of the case, particularly in light of the allegations of forgery and unconscionability.

The court found that the mortgage was indeed forged, and that the principles of unconscionability as outlined in Amadio did apply. The court held that the defendant was entitled to relief based on the unconscionable nature of the transaction. Furthermore, the court determined that the Contracts Review Act did not provide a basis for relief in this instance. However, the Fair Trading Act was considered, and the court found that it did not provide any additional grounds for relief. Consequently, the court granted the defendant relief from the mortgage and dismissed the plaintiff's claim for possession.

The final orders of the court were that the mortgage was void due to forgery and unconscionability, and that the defendant was entitled to relief from the mortgage. The plaintiff's claim for possession was dismissed. The court's decision underscored the importance of examining the underlying fairness of transactions, particularly in cases where high-interest loans and allegations of forgery are present.

Orders