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 (revised)

1. These proceedings were commenced by summons on 6 February 2025.

2. It is not in dispute that the plaintiff and defendant are, according to the records maintained by Land and Registry Services in relation to the title of the Property, each co-owners of the Property. According to the records with the Land and Registry Services, the plaintiff is a 95 percent owner of the Property and the defendant a five percent owner. The Property is located at X Rees Avenue in Belmore (the Property).

3. The principal relief sought, at least for today's purposes, by the plaintiff is an order pursuant to section 66G(1) of the Conveyancing Act 1919 that trustees for sale be appointed in relation to the Property.

4. The proceedings have been before the Court on several occasions for directions. The defendant, Ms Kang, has appeared for herself on each of those occasions. On 4 April 2025, Ms Kang filed a document entitled, "Cross-Claim Cross-Summons" together with an affidavit of herself made on 19 March 2025.

5. The relief sought by Ms Kang in that Cross-Claim Cross-Summons is:

1. That the mortgagee RAMS (a subsidiary of Westpac) repossess of the Property at X Rees Avenue, Belmore, being the land comprised in certificate title X/XXX.

2. That the defendant's name and financial obligations be removed from the home loan with mortgagee RAMS (a subsidiary of Westpac) for the purchase of the Property at X Rees Avenue, Belmore, New South Wales.

3. That the defendant be awarded the sum of $30,000.

6. A further order is sought to the effect that the defendant be awarded all costs incurred as a result of the initiating summons and the like.

7. The effect of Ms Kang's affidavit dated 19 March 2025 is, relevantly, that she was duped into signing the mortgage documentation in relation to the Property. Her position is that she was never intended to have any liability under any mortgage in relation to the Property, and was never intended to have any interest in the Property at all. Her position is that she was only ever intended or asked to be a witness to signing certain documents.

8. The plaintiff's position appears to be contrary to that, namely that Ms Kang was intended to be a guarantor in relation to the Property and that she was to be given a five per cent interest in the Property on that account.

9. It seems relatively clear that mortgage payments are not currently being made to the mortgagee RAMS and that is the reason why the plaintiff wishes the Property to be sold, so that RAMS can be paid out.

10. On each of the prior occasions that the matter has been before the Court, Ms Kang, who as I said above is representing herself, has informed the Court that she has made a complaint with the Australian Financial Complaints Authority (AFCA) in relation to the matter. Ms Kang has previously notified the Court of the complaint number.

11. There has been some uncertainty, at least in my mind, as to the nature of the complaint made by Ms Kang with AFCA and whether that complaint provides a basis for this case not to proceed. It was for this reason that I stood the matter over to this morning so that, hopefully, some clarity could be provided in relation to that complaint.

12. This morning Ms Kang has provided to me some communications that she, or people on her behalf, have had with AFCA and with RAMS in relation to the AFCA complaint. It seems relatively clear that Ms Kang has in fact made a complaint with AFCA in relation to RAMS, along the lines that she contends in this Court - namely that she was duped into signing the documentation and was never intended to have any interest in the Property.

13. Mr Hughes, who appears for the plaintiff, points out that such a complaint with AFCA does not provide any bar to the present proceedings continuing. He points out, and I accept, that the AFCA Complaint Resolution Scheme Rules (Scheme Rules) will prohibit, relevantly, RAMS from taking any court proceedings against a complainant. RAMS are not a party to the present proceedings and, of course, are not taking any action against Ms Kang. The communications tendered by Ms Kang make it clear that RAMS have been dealing with the complaint in accordance with the AFCA Scheme Rules.

14. In my view, the existence of the AFCA complaint does not provide any legal prohibition on the present proceedings continuing.

15. Ms Kang's position is that she is not a co-owner of the Property at all. On this assumption she should have no difficulty in the Property being sold. Even on the plaintiff’s case, Ms Kang is a co-owner to the extent of 5 per cent. The law is tolerably clear that there are only rare circumstances in which a co-owner who wishes to have the Court's assistance to sell a Property should be denied that opportunity. Among the many statements to this effect are what was said by the Court of Appeal in Foundas v Arambatzis [2020] NSWCA 47 at [63]:

Although an order under s 66G is discretionary, such an order is almost as of right, unless on settled principles it would be inequitable to make the order. An order may be refused if the appointment of trustees for sale would be inconsistent with a proprietary right, or the applicant for the order is acting in breach of contract or fiduciary duty, or is estopped from seeking or obtaining the order (Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068 at 1068; Ngatoa v Ford (1990) 19 NSWLR 72 at 77; Williams v Legg (1993) 29 NSWLR 687 at 693; Hogan v Baseden (1997) 8 BPR 15,723 at 15,726-15,727; Tory v Tory at [42]). Hardship or general unfairness is not a sufficient ground for declining relief under s 66G (Hogan v Baseden (1997) 8 BPR 15,723 at 723; Ferella v Official Trustee in Bankruptcy at [36]-[40]).

16. I cannot discern, from the material that has been provided to me and the statements by Ms Kang as to her position, any basis on which an order for judicial sale could be opposed. In fact, taken at its highest, Ms Kang's case is that she is not a co-owner at all, and therefore would have even less basis to oppose the relief sought. Even taking the plaintiff's case at its highest, Ms Kang is a co-owner and the plaintiff is entitled to an order for judicial sale consistent with the well understood principles.

17. Further, looked at on a practical level, it seems to me that it is in everybody's interest that the Property be sold as soon as possible so as to reduce the debt accruing to RAMS. The sale of the Property, and the realisation of its proceeds, will enable RAMS to be paid. I asked Mr Hughes this morning whether he had any estimate as to the likely market value of the Property and the current amount of the debt. His responses, which of course are not binding on anyone, suggested that there may be some equity in the Property. That is all the more reason for the Property to be sold as soon as possible so that that equity is not eroded by increased interest payments to RAMS.

18. It seems to me for these reasons that the sooner the Property is sold the better. I have attempted during the course of the hearing this morning, through the assistance of the interpreter that Ms Kang has arranged to interpret for her this morning, together with discussions that I have had with one of Ms Kang's daughters present in court this morning, to explain to Ms Kang the situation as I see it and why it is in everybody's interests that the Property be sold. It has been made clear to Ms Kang this morning that the sale of the Property does not in any way deal with what appears at the moment to be the substantive dispute between the parties, namely whether Ms Kang was ever intended to have any interest in the Property. That is a matter that can be progressed, if need be, separately from and after the Property has been sold.

19. The orders of the Court are:

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:

1. council rates, water rates, any statutory duties and charges;

2. payment of all expenses with respect to the sale of the Property including real estate agents’ commissions and solicitors’ costs;

3. payment of amounts secured by the registered mortgage over the Property in favour of RAMS Home Loans; and

4. 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.

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Amendments

30 April 2025 - Correct spelling of plaintiff's name

Decision last updated: 30 April 2025