Chong v Chanell (No 2) - [2009] NSWSC 1066

CITATION: Chong v Chanell (No 2) [2009] NSWSC 1066

HEARING DATE(S): 18 & 22 September 2009

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 18 September 2009

DECISION: Order that caveat be withdrawn, upon undertaking to pay into court part of proceeds of sale.

CATCHWORDS: REAL PROPERTY – Torrens title – caveats – where plaintiff seeks order under (NSW) Real Property Act 1900, s 74MA for removal of caveat – where caveator bears onus to show that there is a seriously arguable claim to a caveatable interest which would entitle a caveator to an injunction prohibiting the proposed dealing – whether balance of convenience favours retention of caveat – held: caveator has seriously arguable claim for caveatable interest but not one that would prevail over plaintiff’s charge – part of proceeds to be preserved to satisfy caveator’s claim insofar as plaintiff’s claim not clearly entitled to priority.

LEGISLATION CITED: (CTH) Family Law Act 1975, s 79
(NSW) Real Property Act 1900, s 74MA

CATEGORY: Consequential orders

CASES CITED: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

PARTIES: Qingyi Chong (plaintiff)
Jane Haley Chanell (aka Jinghai Chong) (first defendant)
Wu Hong Wei (second defendant)

FILE NUMBER(S): SC 2509/07

COUNSEL: Mr R Tregenza (plaintiff)
Mr T Morahan (second defendant)

SOLICITORS: Austin Haworth & Lexon Legal (Sydney) (plaintiff)
Zhang Shijing Lawyers (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday, 18 September 2009

2509/07 Qingyi Chong v Jane Haley Chanell & Anor

JUDGMENT (ex tempore)

1 HIS HONOUR: On 25 May 2009 I gave judgment in these proceedings concluding that the plaintiff Qingyi Chong was entitled to judgment against the first defendant Jane Haley Chanell for certain sums of money of which $1,052,963 was traceable into Ms Chanell’s property at XX Bayview Street, Tennyson Point, for which amount the plaintiff was entitled to a charge on the Tennyson Point property. I adjourned the proceedings for short minutes and on 28 May made orders in accordance with short minutes of that date relevantly as follows:

1. Declare that the first defendant holds the property comprised in Certificate to Title Folio Identifier Lot 103 Deposited Plan XX03228 being the land situate at XX Bayview Street, Tennyson Point in the state of New South Wales subject to and charged with payment of the sum of one million and fifty two thousand nine hundred and sixty three dollars (1,052,963 AUD) together with interest on the same up to the date of judgment in the sum of four hundred and thirteen thousand five hundred and forty nine Australian dollars (413,549 AUD) and interest in accordance with Schedule 5 to the Civil Procedure Rules 2005 from the date of judgment up to the date of discharge of the liability.

2. Give Judgment for the plaintiff against the defendant in the sum of six million six hundred and nineteen thousand and eighty six Australian dollars (6,619,086.00 AUS) (which sum includes the principal sum and interest declared…

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 Chong v Chanell (No 2)

Details

AGLC: Chong v Chanell (No 2) [2009] NSWSC 1066
Case: [2009] NSWSC 1066
Decision Date: 18 September 2009

CaseChat Overview and Summary

The case of Chong v Chanell (No 2) involved a dispute over the removal of a caveat from Torrens title land in New South Wales. The plaintiff sought an order under section 74MA of the Real Property Act 1900 for the removal of the caveat lodged by the defendant. The dispute centred on whether the defendant had a seriously arguable claim to a caveatable interest that would justify the retention of the caveat. The case was heard by the Supreme Court of New South Wales.

The central legal issue before the court was whether the defendant, as the caveator, had established a seriously arguable claim to a caveatable interest. The court had to determine whether the balance of convenience favoured the retention of the caveat. Additionally, the court needed to assess whether the defendant’s claim was one that would entitle the caveator to an injunction prohibiting the proposed dealing, and if so, whether the plaintiff’s charge would prevail over the defendant’s claim.

The court held that while the defendant had established a seriously arguable claim for a caveatable interest, it was not one that would prevail over the plaintiff’s charge. The court found that the balance of convenience favoured the removal of the caveat, but ordered that a portion of the proceeds from the sale of the property be preserved to satisfy the defendant's claim, insofar as the plaintiff's claim was not clearly entitled to priority. This decision balanced the interests of both parties and provided a practical solution to the dispute.

The final orders of the court directed that the caveat be removed, but with the preservation of a portion of the proceeds from the sale of the property to address the defendant's claim. This outcome ensured that the defendant’s interests were protected to a certain extent, while also allowing the plaintiff to proceed with the sale of the property.

Orders