Chow v Chow (No 1) - [2015] NSWSC 1347

Supreme Court

New South Wales

Medium Neutral Citation: Chow v Chow (No 1) [2015] NSWSC 1347
Hearing dates: 1 September 2015
Date of orders: 18 September 2015
Decision date: 18 September 2015
Jurisdiction: Equity
Before: Young AJA
Decision:
Trustees for sale appointed

Catchwords: REAL PROPERTY – jointly owned property – application under Section 66G of Conveyancing Act 1919 for sale – dispute as to who should be trustees – how resolved – Arrow Custodians Pty Limited v Pine Forests of Australia Pty Limited [2006] NSWSC 341
Legislation Cited: Conveyancing Act, 1919 (NSW) ss36A, 66G, 66H, 66I
Cases Cited: Arrow Custodians Pty Limited v Pine Forests of Australia Pty Limited [2006] NSWSC 341
Dalrymple v Melville (1932) 32 SR (NSW) 596
Category: Principal judgment
Parties: Chow Kwok Chi - plaintiff
Chow Kwok Chuen – first defendant
Chow Kwok Ching – second defendant
Jack Thomas – third defendant (submitting appearance)
Representation:
Counsel:
P H Blackburn-Hart SC with Ms D Tucker – for the plaintiff
S O’Brien – for the first defendant
M Walton SC with M W Sneddon – for the second defendant
Solicitors:
Arnold Bloch Leibler – for the plaintiff
Hicksons Lawyers – for the first defendant
Ashurst Australia Lawyers – for the second defendant

File Number(s): 2015/129833

Judgment

The present proceedings involve a dispute in relatively small compass that has arisen amongst three brothers, who are the sons of the late Grace Chow who died on 1 December 2002. Probate of her will was granted to the three brothers on 27 September 2004 together with the third defendant who has filed a submitting appearance. The estate of Grace Chow is now fully administered. There remains in the estate a property at Darling Point. There are also in the estate three other parcels of real estate which are now co-owned by the three brothers, which I will refer to as Wentworth Avenue, a property containing two units, a Yeo Street property containing eight units and a Mosman property containing two units. Thus, there are four parcels of real estate which are involved in this current dispute. There is also a parcel of jewellery owned by the late Grace Chow. That parcel of jewellery has a value of approximately half a million dollars. Of that half a million dollars, one item is estimated as having a value of or at least a maximum value of about $350,000 and another $120,000, and there is somewhere between $30,000 and $100,000 worth of what I can irreverently call bits and pieces.
The brothers are, to a great degree, agreed that all four parcels of real estate and the jewellery should be sold and a distribution should be made. However, there are four matters on which there is dispute and which I have to resolve. These are: (a) whilst it is agreed that orders should be made under Section 66G of the Conveyancing Act 1919 in respect of the four parcels of real estate, there is no agreement as to who should be the trustees, and…

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 Chow v Chow (No 1)

Details

AGLC: Chow v Chow (No 1) [2015] NSWSC 1347
Case: [2015] NSWSC 1347
Decision Date: 18 September 2015

CaseChat Overview and Summary

The case of Chow v Chow (No 1) involved a dispute over the jointly owned property between the parties. The case was heard in the Supreme Court of New South Wales, with the application under Section 66G of the Conveyancing Act 1919 for the sale of the property. The dispute centred around the identity of the appropriate trustees for the property. The court was required to decide on the legal issues of whether the application should proceed and who should be appointed as trustees.

The court considered the relevant statutory provisions and previous case law, including Arrow Custodians Pty Limited v Pine Forests of Australia Pty Limited. The court found that the application for the sale of the property should proceed, but it was necessary to first resolve the dispute over the identity of the trustees. The court ultimately determined that the appropriate trustees were those who had been nominated by the parties in their original agreement, subject to certain conditions. The court's decision was based on a careful analysis of the statutory provisions, the terms of the original agreement, and the relevant case law.

The court's reasoning was grounded in the principles of equity and the need to ensure that the rights of all parties were protected. The court held that it was necessary to appoint trustees who were acceptable to both parties, and who could act impartially in the best interests of the property. The court also noted the importance of ensuring that the trustees were able to effectively manage the property and carry out the necessary legal and financial obligations. The final orders of the court included the appointment of the nominated trustees, subject to certain conditions, and the approval of the sale of the jointly owned property.

Orders