Gao v Zhu - [2002] VSC 53

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6371 of 1999

PENG YUAN GAO	Plaintiff
v.
YU JING ZHU	Defendant

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JUDGE:	HABERSBERGER, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 MARCH 2002
DATE OF JUDGMENT:	6 MARCH 2002
CASE MAY BE CITED AS:	GAO v. ZHU
MEDIUM NEUTRAL CITATION:	[2002] VSC 53

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CATCHWORDS: Application to set aside contract of sale of real estate – Suggestion by judgment creditor that sale at an undervalue – Judgment debtor under pressure to sell quickly – No evidence that sale fraudulent or a sham – Purchaser not personally served with application and not appearing – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In Person
For the Defendant	In Person

HIS HONOUR:

This matter came before me by the plaintiff's summons dated 4 March 2002. Mr Gao sought the following orders from the Court and I quote verbatim:

1."In respect to the Exclusive Sale of Authority made between the defendant and Williams Estate Agents of 300 Stephensons Road Mount Waverley 3149, the plaintiff manage the sale of the property other than the defendant.
2.The Contract Note for sale the property of 168 Hansworth Street Mulgrave 3170 [Volume 8938 Folio 042] made by between the defendant and purchaser of Suchada PIPATVEERAWAT of 6 Agnes Court, Glen Waverley 3150 on 8th February 2002 to be set aside.

3. The net proceeds of the sale for the property would be paid to the Court.
4.The plaintiff would serve this order of the Court to the said Agent and the Commonwealth Bank as soon as after the order made.

5. Costs of this application.
6. Such further other orders as the Court may deem fit."

As appears from my reasons for judgment given in this case on 26 February 2002[1], Ms Zhu sold the property of 168 Hansworth Street, Mulgrave ("the Mulgrave property") by contract of sale dated 8 February 2002. Ms Zhu had purchased this property in the middle of last year for $223,000, of which $45,000 was contributed by Ms Zhu and $178,000 was borrowed from the Commonwealth Bank of Australia.
[1][2002] VSC 47

Today, Ms Zhu gave evidence that the Mulgrave property was sold for two reasons. First, no, or only one, mortgage repayment has been paid to the Commonwealth Bank of Australia ("the Bank") and the Bank was seeking to realise its security. Secondly, in order to have the judgment entered against Ms Zhu on 23 May 2001 set aside, she was required, by the order of Eames J made on 12 December 2001, to pay the sum of $35,000 into Court by 23 January 2002. (However, on 26 February 2002, Ms Zhu withdrew her application to extend the time to pay the $35,000 into Court. The judgment previously obtained by Mr Gao for the sum of $163,000 plus interest of $35,681.37 and costs of $1,600 therefore stood.) Nevertheless, the contract had been entered into by Ms Zhu in purported compliance with Justice Eames'…

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 Gao v Zhu

Details

AGLC: Gao v Zhu [2002] VSC 53
Case: [2002] VSC 53
Decision Date: 6 March 2002

CaseChat Overview and Summary

In the case of Gao v Zhu, the matter before the court involved an application to set aside a contract of sale of real estate. The applicant, Gao, sought to have the sale set aside on the basis that the sale price was significantly lower than the property's market value. Gao argued that the judgment debtor, Zhu, was under pressure to sell quickly and thus sold the property at an undervalue. Zhu had sold the property to a third party, who was not served with the application and did not appear in court.

The primary legal issue was whether the contract of sale could be set aside under the circumstances presented. Gao argued that the sale was at an undervalue, and Zhu had been pressured into selling quickly. However, there was no evidence to suggest that the sale was fraudulent or a sham. The court had to determine whether the application met the criteria for setting aside a contract of sale and whether the absence of the purchaser, who was not personally served, impacted the proceedings.

The court held that the application to set aside the contract of sale was not substantiated by the evidence. There was no proof that the sale was fraudulent or a sham, and the court was not persuaded that the sale was at an undervalue to the extent required to set it aside. Furthermore, the absence of the purchaser, who was not personally served with the application, did not necessarily mean that the application could proceed without them, as their interests were directly affected by the outcome. Consequently, the court refused the application to set aside the contract of sale.

Orders