Hyunh v Kang

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.