Hyunh v Kang - [2025] NSWSC 411

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Huynh v Kang [2025] NSWSC 411
Hearing dates: 29 April 2025
Date of orders: 29 April 2025
Decision date: 29 April 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision:
(1) Order pursuant to s 66G(1) Conveyancing Act 1919 (NSW) that Ke Toai Le and Thien Quoc Sy Nguyen be appointed as trustees for the sale of land situated at X Rees Avenue, Belmore in the State of New South Wales being the land comprised in certificate of title X/XXX (Property).
(2) Order that the Property vest in Ke Toai Le and Thien Quoc Sy Nguyen subject to incumbrances affecting the whole of the Property but free from incumbrances (if any) affecting any undivided share therein to be held by the said trustees on the statutory trust for sale under Division 6 of Part 4 of the Conveyancing Act 1919 (NSW).
(3)   Order that the trustees Ke Toai Le and Thien Quoc Sy Nguyen, be paid for their services as trustees out of the proceeds of sale of the Property at a rate not to exceed 1%.
(4)   Order that the proceeds from the sale of the Property are to be applied as follows:
(a)   council rates, water rates, any statutory duties and charges;
(b)   payment of all expenses with respect to the sale of the Property including real estate agents’ commissions and solicitors’ costs;
(c)   payment of amounts secured by the registered mortgage over the Property in favour of RAMS Home Loans; and
(d)   any surplus proceeds to be paid into Court.
(5)   Order the proceedings be listed for directions in the Real Property List on 18 July 2025.
(6)   Liberty to be granted to the parties, and any other person claiming an interest in the Property, or the trustees mentioned above, to apply on 3 days’ notice to my chambers with respect to any matter that may arise in relation to the sale of the Property or the distribution of the sale proceeds.
(7)   Reserve all questions of costs.

Catchwords:
LAND LAW – co-ownership – statutory trust for sale – application by plaintiff under Conveyancing Act 1919 (NSW) s 66G – where plaintiff is in default of mortgage – where plaintiff contends that defendant has a 5% co-ownership – where defendant refutes ownership on the grounds they were “duped” – where the defendant has made a complaint to the Australian Financial Complaints Authority against the mortgagee – whether it is appropriate to appoint trustees for sale – trustees for sale appointed – no question of principle

Legislation Cited:
Conveyancing Act 1919 (NSW) s 66G(1)

Cases Cited:
Foundas v Arambatzis [2020] NSWCA 47

Texts Cited:
Nil

Category: Procedural rulings
Parties: Thuy Thanh Thi Huynh (Plaintiff/First Cross-Defendant)
Susan Kang (Defendant/Cross-Claimant - self represented)
Ke Toai Le (Second Cross-Defendant)
Representation:
Counsel:
A Hughes (Plaintiff/First Cross-Defendant)
N Donnan (Second Cross-Defendant)
Solicitors:
Le & Co (Plaintiff/First Cross-Defendant)
Gilchrist Connell (Second Cross-Defendant)

File Number(s): 2025/00048167
Publication restriction: Nil

JUDGMENT – ex tempore…

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 Hyunh v Kang

Details

AGLC: Hyunh v Kang [2025] NSWSC 411
Case: [2025] NSWSC 411
Decision Date: 29 April 2025

CaseChat Overview and Summary

The matter of Hyunh v Kang was heard in the Supreme Court of New South Wales. The plaintiff, Hyunh, sought an order under section 66G of the Conveyancing Act 1919 (NSW) to appoint trustees for the sale of the property, which was subject to a statutory trust for sale. The property was jointly owned by Hyunh and Kang, but Hyunh was in default of the mortgage. Hyunh contended that Kang held a 5% interest in the property, while Kang argued that they had been deceived into believing they had no interest in the property at all. Kang had also lodged a complaint with the Australian Financial Complaints Authority against the mortgagee. The central legal issue was whether it was appropriate to appoint trustees for the sale of the property given the disputed co-ownership.

The court considered the circumstances of the case and determined that there was a statutory trust for sale of the property, which entitled the plaintiff to seek an order for trustees for sale. The court also noted that Kang's complaint to the Australian Financial Complaints Authority was not relevant to the court's decision. The court found that it was appropriate to appoint trustees for sale of the property, as the plaintiff had made an application under section 66G of the Conveyancing Act 1919 (NSW) and the property was subject to a statutory trust for sale. The court held that there was no question of principle that prevented the appointment of trustees for sale in this case.

The court appointed trustees for sale of the property and ordered that the sale proceed in accordance with the terms of the mortgage. The court found that the dispute over the co-ownership did not affect the statutory trust for sale or the plaintiff's entitlement to seek an order for trustees for sale. The court also noted that the appointment of trustees for sale did not determine the ultimate outcome of the dispute over the co-ownership, which would need to be resolved in separate proceedings. The final orders of the court were that trustees for sale be appointed and that the sale proceed in accordance with the terms of the mortgage.

Orders