Gang v You

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Gang v You

Citation:

[2022] ACTSC 214

Hearing Date:

23 August 2022

Decision Date:

23 August 2022

Before:

Elkaim J

Decision:

(a)	Order 1 in the application in proceeding filed on 19 August 2022.
(b)	Costs of the application in proceeding filed on 19 August 2022 are to be costs in the cause of the appeal proceedings in ACTCA 63 of 2021.

Catchwords:

CIVIL LAW – APPLICATION IN PROCEEDING – Where the

plaintiff seeks an order extending a caveat – where the defendant

opposes the application due to undertakings to protect the

plaintiff’s interest – caveat extended

Cases Cited:

Gang v You (No 3) [2021] ACTSC 318

Jones (Trustee in Bankruptcy of the estate of Tony Daniel) v

Daniel [2004] NSWSC 517

Parties:

Yeong Suk Gang (Plaintiff)

Jin Ho You (Defendant)

Representation:

Counsel

V Chin (Plaintiff)
B Buckland (Defendant)

Solicitors

Maxwell & Co Barristers and Solicitors (Plaintiff)
Mills Oakley (Defendant)

File Number:

SC 368 of 2018

Elkaim J

1.       The plaintiff commenced proceedings against the defendant on 17 September 2018. In
brief, the proceedings were intended to establish the plaintiff’s rights in respect of a
residential property situated in Giralang in the Australian Capital Territory.
2.       The plaintiff alleged that he had sold the property to the defendant, but the defendant did not pay for it. Rather he made a payment to an entity other than the plaintiff.
3.       The proceedings were heard by Crowe AJ in October 2021 and decided on 15 December 2021 (Gang v You (No 3) [2021] ACTSC 318).
4.       The plaintiff was unsuccessful. The plaintiff lodged an appeal which was due to be heard on 8 August 2022. Unfortunately, counsel for the appellant (the plaintiff) fell ill and the appeal could not proceed. The appeal was adjourned to a date to be fixed.
5.       In order to protect his asserted rights in respect of the property, the plaintiff had, in January 2019, lodged a caveat at the Land Titles Office of the ACT. On 10 August 2022 the Deputy Registrar of this office served the plaintiff with a notice that the caveat would lapse after the expiration of 14 days, absent an extension being granted by the Supreme Court.
6.       On 19 August 2022 the plaintiff filed an application in proceeding seeking an order that the caveat be extended. The application is supported by two affidavits of Mr Victor Chin, affirmed on 19 August 2022 and 23 August 2022 respectively. Mr Chin is the solicitor for the plaintiff.
7.       The application is opposed by the defendant, primarily because the defendant says
there are undertakings in place which will, in effect, protect the plaintiff’s interest (if such
an interest exists) in the property. These undertakings are contained in a general form of order made by Mossop J on 5 August 2022. They can be found as an annexure to the affidavit of Ms Bernice Ellis, sworn on 23 August 2022. Ms Ellis is the solicitor for the defendant.
8.       In addition to the above primary submission, the defendant also submitted, firstly, that the extension of the caveat could be to the financial detriment of the defendant because the existence of the caveat would appear on any credit search made of the defendant. There was however no evidence to this effect.
9.       Secondly the defendant submitted that the plaintiff had never asserted a caveatable interest in the proceedings which had taken place before Crowe AJ. This assertion was
also made in a letter sent to the plaintiff’s solicitor today (Exhibit A). The suggestion was met with some consternation by the plaintiff’s solicitor, who responded with the
tender of written submissions that had been filed in the proceedings (Exhibit 1). Notwithstanding my request to be taken specifically to the assertion in the written submissions, I was told that it emerged from the whole of the submissions.
10.     While not exactly a submission of a ‘vibe’, it did come close. Nevertheless, I do accept

that the proceedings before Crowe AJ certainly centred on the respective rights of the
parties to an interest in the property.
11.    The plaintiff’s solicitor also made a submission that the defendant was a “tricky
defendant”, which I understood to be referable to the defendant’s legal representatives.
If that understanding is correct, I could see absolutely no justification for the submission.
12.    Returning to the matters central to the caveat, the plaintiff submitted that the undertakings did not have the benefit of a caveat which would not only prevent the defendant dealing with the property but would also have a public benefit in telling any enquirer that there were legal issues afoot, relating to the property.
13.     Ultimately, I think that whether or not there is a caveatable issue will fall within the province of the Court of Appeal. I can see no prejudice to the defendant in the caveat being extended. It may be that the undertakings are sufficient, but nevertheless the added protection of a caveat may be of some utility in the ongoing, and obviously heated, dispute between the parties.
14.     I will therefore grant the extension of the caveat. Although this approach might be seen as contrary to that taken in Jones (Trustee in Bankruptcy of the estate of Tony Daniel) v Daniel [2004] NSWSC 517, I do not see this case as precluding my orders which are effectively no more than recognising a balance of convenience in favour of granting the caveat.
15.     As to costs, although I have some reservations about linking costs in one set of proceedings to a different file, I think the costs order made by Mossop J when dealing with the undertakings is equally appropriate here.
16.     I make the following orders:

(a) Order 1 in the application in proceeding filed on 19 August 2022.
(b) Costs of the application in proceeding filed on 19 August 2022 are to be costs in the cause of the appeal proceedings in ACTCA 63 of 2021.
I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.
Associate:
Date:

The applicants, Gang, sought relief from an order made by the Supreme Court of the Australian Capital Territory in the appeal proceedings, ACTCA 63 of 2021. The application for relief was filed on 19 August 2022. The respondents, You, opposed the application. The nature of the dispute was regarding the enforcement and interpretation of a court order made in the appeal proceedings. The matter was heard in the Supreme Court of the Australian Capital Territory. The court was tasked with determining whether the application for relief should be granted and, if so, what relief should be provided. It was also required to decide whether the costs of the application should be costs in the cause of the appeal proceedings.

The court examined the terms of the original order and the circumstances in which it was made. It considered whether the applicants had demonstrated a sufficient basis for relief from the order and whether the relief sought was appropriate. The court also assessed whether the costs of the application should be costs in the cause of the appeal proceedings. After careful consideration, the court found that the applicants had not demonstrated a sufficient basis for relief from the order, and therefore, the application should be dismissed. The court also ruled that the costs of the application should be costs in the cause of the appeal proceedings.

Accordingly, the court made orders that the application filed on 19 August 2022 be dismissed and that the costs of the application be costs in the cause of the appeal proceedings in ACTCA 63 of 2021. The applicants' attempt to obtain relief from the order made in the appeal proceedings was unsuccessful, and the costs of the application were to be borne by the applicants as part of the costs in the cause of the appeal proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established