SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Gang v You (No 2) |
Citation: | [2023] ACTSC 32 |
Hearing Date: | 20 February 2023; 21 February 2023 |
DecisionDate: | 21 February 2023 |
Before: | McCallum CJ |
Decision: | (1) Note order (1) made by Elkaim J on 23 August 2022 extending until further order the operation of [an identified caveat on the title to identified land]. (2) Vacate order (1) of Elkaim J made on 23 August 2022. (3) Note that, that order having been vacated, there is no order of the Court preventing the Registrar-General from removing the caveat from the title as requested by the registered proprietor. (4) Plaintiff to pay the first defendant’s cost of today’s application. |
Catchwords: | CIVIL LAW – CIVIL PRACTICE AND PROCEDURE – Where plaintiff lodged caveat on real property owned by defendant ostensibly in connection with interest claimed in the proceedings – Where plaintiff unsuccessful in proceedings at first instance – where appeal commenced – whether any caveatable interest pending the determination of the appeal |
Legislation Cited: | Land Titles Act 1925 (ACT), s 107 |
Cases Cited: | Gang v You (No 3) [2021] ACTSC 318 Gang v You [2022] ACTSC 214 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 T Crispin ( Plaintiff) B Buckland ( Defendant) |
| Solicitors Maxwell & Co ( Plaintiff) Mills Oakley ( Defendant) | |
File Number: | SC 368 of 2018 |
McCALLUM CJ:
Yeong Suk Gang commenced proceedings in this Court against Jin Ho You seeking contractual and equitable remedies arising from a dispute concerning real estate property originally owned by Mr Gang which he had sold to Mr You. There was a second defendant to those proceedings, namely, the firm of solicitors that had acted on the conveyance.
The proceedings were heard by Crowe AJ over several days in October 2021 and determined by his Honour in favour of the defendants on 15 December 2021: see Gang v You (No 3) [2021] ACTSC 318. On 22 December 2021, Mr Gang commenced an appeal against his Honour’s judgment.
Prior to instituting those proceedings, Mr Gang brought the present proceedings against Mr You seeking to restrain him from excluding Mr Gang from occupancy of the property.
On 23 August 2022, the present proceedings came before Elkaim J to determine an application concerning a caveat lodged by Mr Gang over the property the subject of the dispute. The caveat had been lodged by Mr Gang in 2019 but did not come to Mr You’s attention until the middle of 2022. At that time, Mr You wrote to the Registrar-General seeking to have the caveat removed pursuant to s 107 of the Land Titles Act 1925 (ACT), whereupon Mr Gang moved the Court to extend the caveat. That application was determined by Elkaim J in Gang v You [2022] ACTSC 214. The order made by his Honour was to extend…
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