Ha v Xu and Hou - [2007] NSWLC 25

Local Court of New South Wales

CITATION: Ha v Xu and Hou [2007] NSWLC 25

JURISDICTION: Civil

PARTIES: Plaintiff: Paul Kay Mui Ha
First Defendant: Xuan Fang (Wendy) Xu
Second Defendant: Xuhua Hou

FILE NUMBER: 3581/07

PLACE OF HEARING: Downing Centre Local Court

DATE OF DECISION:
07/13/2007

MAGISTRATE: Magsitrate B A Lulham

CATCHWORDS: Jurisdiction - whether property bought on trust - whether on pleadings matters are proceedings in which title to land is in question

LEGISLATION CITED: Local Courts Act ss65(1), 65(7), 67(e)

CASES CITED: Hunyh v Swanson (1999) NSWSC 72
Toll v Alphapharm (2004) 219 CLR 164.
Smith v Patterson (1934) 51 WN (NSW) 137
Khoury & Anor v Khouri (2006) 66 NSWLR 241

REPRESENTATION:
Mr P Cullen (Counsel for Plaintiff)
Equiton Solicitors & Notary (Solicitors for Plaintiff)
Mr Monahan (Counsel for Defendant)
Shijing Lawyers (Solicitors for Defendant)

ORDERS: The defendants are to file their Defences by 3 August 2007. The hearing of the Motion is adjourned part heard to 9 August 2007, or to some other suitable date, at 9.30

Reasons for Decision

1 The defendants Wendy Xu and Mr Hou applied to the court seeking that the plaintiff’s claim be stayed until the claim was removed to the Supreme Court of New South Wales or until further order of the court.

2 The plaintiff’s original Statement of Claim sought declarations as to the basis upon which land was owned. They were orders outside the jurisdiction of this court. An Amended Statement of Claim was filed. The defendants claim that the orders which the plaintiff now seeks under the Fair Trading Act 1987 require the court to make a finding as to the existence of a declaration of trust and therefore the title to land is in question. The defendants contend this court does not have jurisdiction to hear such matters.

3 The application is made at a very early stage of the proceedings and I have to rely on the plaintiff’s Statement of Claim to obtain an understanding of what is alleged to have occurred.

4 The plaintiff alleged that he agreed to advance to Wendy Xu a sum of money to enable her to purchase a unit at Hurstville. Wendy Xu was to repay the loan within a reasonable time and to pay interest at a bank rate. The plaintiff and Wendy Xu identified and agreed to purchase a unit 10/1 Empress Street, Hurstville for $261,000. The plaintiff agreed to advance $52,200 towards the purchase.

5 The Statement of Claim pleaded that the plaintiff and Wendy Xu agreed to vary the loan agreement to provide that Wendy Xu’s son Mr Hou, the second defendant, would become the purchaser of the unit on behalf of Wendy Xu. The plaintiff pleaded that he agreed to advance the same sum of money to the first and second defendants jointly, to enable the unit to be purchased in Mr Hou’s name on behalf of Wendy Xu. Alternatively the plaintiff pleaded that he had agreed to…

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 Ha v Xu and Hou

Details

AGLC: Ha v Xu and Hou [2007] NSWLC 25
Case: [2007] NSWLC 25
Decision Date: 13/07/2007

CaseChat Overview and Summary

The matter in Ha v Xu and Hou was brought before the court by the plaintiff, Ha, who sought to determine whether certain property was purchased on trust and if the proceedings were indeed matters in which the title to the land was in question. The defendants, Xu and Hou, were required to respond to these claims. The court was tasked with deciding on the jurisdictional aspects of the case, specifically whether the allegations in the plaintiff's statement of claim were sufficient to establish the court's jurisdiction over the matter.

The legal issues before the court involved the interpretation of the plaintiff's pleadings to ascertain whether they sufficiently disclosed a cause of action that fell within the court's jurisdiction. The court needed to determine if the property in question was purchased on trust and if the proceedings indeed involved the title to the land. The defendants argued that the pleadings were insufficient, while the plaintiff maintained that the claims were clear and within the court's jurisdiction.

In its reasoning, the court examined the content of the plaintiff's statement of claim and assessed whether the allegations were sufficient to establish jurisdiction. The court held that the plaintiff's claims, though somewhat vague, did disclose a cause of action concerning the purchase of property on trust and the title to the land. The court found that the jurisdictional requirements were met, and the matters were appropriately before it. Consequently, the defendants were directed to file their defences by a specified date, and the hearing of the motion was adjourned to allow for further proceedings.

Orders

Orders of the court

The defendants are to file their Defences by 3 August 2007. The hearing of the Motion is adjourned part heard to 9 August 2007, or to some other suitable date, at 9.30 Reasons for Decision

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Ha v Xu and Hou [2007] NSWLC 25
JURISDICTION:	Civil
PARTIES:	Plaintiff: Paul Kay Mui Ha First Defendant: Xuan Fang (Wendy) Xu Second Defendant: Xuhua Hou
FILE NUMBER:	3581/07
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	07/13/2007
MAGISTRATE:	Magsitrate B A Lulham
CATCHWORDS:	Jurisdiction - whether property bought on trust - whether on pleadings matters are proceedings in which title to land is in question
LEGISLATION CITED:	Local Courts Act ss65(1), 65(7), 67(e)
CASES CITED:	Hunyh v Swanson (1999) NSWSC 72 Toll v Alphapharm (2004) 219 CLR 164. Smith v Patterson (1934) 51 WN (NSW) 137 Khoury & Anor v Khouri (2006) 66 NSWLR 241
REPRESENTATION:	Mr P Cullen (Counsel for Plaintiff) Equiton Solicitors & Notary (Solicitors for Plaintiff) Mr Monahan (Counsel for Defendant) Shijing Lawyers (Solicitors for Defendant)
ORDERS:	The defendants are to file their Defences by 3 August 2007. The hearing of the Motion is adjourned part heard to 9 August 2007, or to some other suitable date, at 9.30