Gang v You (No 2) - [2023] ACTSC 32

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 Goldstraw v Goldstraw [2002] VSC 491 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…

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 Gang v You (No 2)

Details

AGLC: Gang v You (No 2) [2023] ACTSC 32
Case: [2023] ACTSC 32
Decision Date

CaseChat Overview and Summary

Yeong Suk Gang commenced proceedings 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. The proceedings were heard by Crowe AJ in October 2021 and determined in favour of the defendants. Mr Gang lodged an appeal against the decision, which is currently pending. Prior to these 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 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 the caveat “until further order”. Mr You now seeks an order requiring the Registrar-General to remove the caveat from the title of the land. The court held that a caveat must be supported by an interest in land. The interest in land claimed by Mr Gang related to an option which would expire three years after the date of sale, which was 1 November 2017. The period had now expired. It was difficult to see how there was ever a caveatable interest in the property. Certainly, following the determination of Mr Gang’s claim by Crowe AJ, in which Mr Gang was unsuccessful, it could be accepted that there was presently no caveatable interest in the property. The court held that the caveat should be removed from the title. The plaintiff would pay the first defendant’s cost of today’s application.

Orders