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Fang v Yang

Fang v Yang

Case [2021] NSWSC 890 22 July 2021

Caveats

Adverse Possession

Easements & Covenants

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Fang v Yang [2021] NSWSC 890
Hearing dates: 21 July 2021
Date of orders: 22 July 2021
Decision date: 22 July 2021
Jurisdiction: Equity - Duty List
Before: Henry J
Decision:
Application to extend caveat refused.

Catchwords:
LAND LAW – Caveats – Extension of operation of caveat – where extension sought on different factual basis of contribution to purchase price rather than development agreement – whether serious question to be tried – whether difference in description can be overcome by ss 74L or 74O of the Real Property Act 1990 (NSW) – extension refused

Legislation Cited:
Real Property Act 1900 (NSW), ss 74F, 74K, 74L, 74O
Real Property Regulation 2019 (NSW), cl 7, sch 2

Cases Cited:
1190 Pacific Highway Pty Limited v Link Start Pty Limited [2021] NSWSC 671
Abraham v Abraham [2012] NSWSC 254
Allen Taylor & Co Pty Ltd t/as Boral Timber v Harrison [2010] NSWSC 1021
Beca Developments v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1
Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd [2005] NSWSC 997
FTFS Holdings Pty Ltd v Business Acquisitions Australia Pty Ltd [2006] NSWSC 846
Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240
Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd [2005] NSWSC 880
In the Marriage of Stevens (1991) 105 FLR 459
Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407; [1992] HCA 22
Multi-Span Constructions No 1 Pty Ltd v 14 Portland Street Pty Ltd [2001] NSWSC 696
Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd (No 3) [2009] FCA 335
Ron Medich PropertiesPty Ltd v McGurk [2010] NSWSC 552
Schibaia v Elias [2013] NSWSC 1485
Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729
Warner v Andrews [2011] NSWSC 956
Woodsman Pty Ltd v Jozic [2018] NSWSC 1311

Texts Cited:
Nil

Category: Procedural rulings
Parties: Leo Shi Ran Fang (Plaintiff)
Xia Yang (Defendant)
Representation:
Counsel:
N Seow (Defendant)
Solicitors:
Century Lawyers (Plaintiff)
Luminous Legal (Defendant)

File Number(s): 2021/199156
Publication restriction: Nil

JUDGMENT

These reasons deal with an application by Summons filed on 12 July 2021 for an order extending the operation of caveat AQ934702 (Caveat) in respect of the property comprised in folio identifier 3/154460 that is owned by the defendant (the No 82 property) until further order of the Court.
The proceedings were commenced by the plaintiff following service of a lapsing notice on or about 15 June 2021. The Summons also seeks final relief by way of a declaration that the defendant holds the plaintiff’s interest in the No 82 property on trust for him.
On 12 July 2021, the Duty Judge granted an interim extension of the Caveat and adjourned the proceedings to enable the application to be heard on an interlocutory basis before the 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 Fang v Yang

Details

AGLC: Fang v Yang [2021] NSWSC 890
Case: [2021] NSWSC 890
Decision Date: 22 July 2021

CaseChat Overview and Summary

Fang and Yang were involved in a legal dispute that reached the New South Wales Supreme Court. The central issue was whether Fang's caveat, initially based on a development agreement, could be extended to cover a different factual basis, specifically Fang's contribution to the purchase price of a property. The property in question was subject to a mortgage held by Yang, and Fang sought to extend the caveat to protect his interest in the property. The court was required to determine whether Fang's proposed extension raised a serious question to be tried and whether the differences in the descriptions of the interests protected by the original and proposed caveats could be reconciled under sections 74L and 74O of the Real Property Act 1990 (NSW).

The court analysed the legal framework provided by the Real Property Act 1990 (NSW) to assess the validity of Fang's proposed caveat extension. It examined whether the new basis for the caveat, Fang's financial contribution to the purchase price, constituted a serious question to be tried. Additionally, the court considered whether the differences between the original and proposed caveats could be resolved under sections 74L and 74O, which deal with the alteration and extension of caveats, respectively. The court determined that the proposed extension did not raise a serious question to be tried and that the differences in the descriptions of the interests could not be reconciled under the relevant sections of the Act.

In conclusion, the court refused Fang's application to extend the operation of his caveat to cover his contribution to the purchase price of the property. The court found that the proposed extension did not meet the criteria for a serious question to be tried and that the differences in the descriptions of the interests protected by the original and proposed caveats were not capable of being reconciled under the Act. As a result, Fang's caveat remained limited to the terms of the development agreement.

Orders