Kim & 1 or v Kim - [2006] NSWSC 472

CITATION: Kim & 1 or v Kim [2006] NSWSC 472

HEARING DATE(S): 14 September 2006

JURISDICTION: Equity Division
Duty List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 09/14/2006

DECISION: Order for sale made upon undertaking of first plaintiff to exonerate other parties.

CATCHWORDS: REAL PROPERTY – Co-ownership – Sale – where property subject to mortgages – where moneys secured used by first plaintiff for his own separate benefit - exoneration

LEGISLATION CITED: Conveyancing Act 1919 (NSW), s 66G
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

CASES CITED: Re Wakim; Ex parte McNally (1999) 198 CLR 511
Young v Lalic [2006] NSWSC 18

PARTIES: Sung Soo Kim (first plaintiff)
Jae Koo Kim (second plaintiff)
Yong O Kim (defendant)

FILE NUMBER(S): SC 4155/06

COUNSEL: Mr J Fisicaro (sol) (plaintiffs)

SOLICITORS: John Fisicaro & Co (plaintiffs)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Thursday 14 September 2006

4155/06 Sung Soo Kim & 1 Or v Yong O Kim

JUDGMENT (Ex tempore)

1 HIS HONOUR: The plaintiffs are mother and son. They seek orders under Conveyancing Act 1919 (NSW), s 66G for the sale of a property at 11 Farnham Avenue, Roselands of which they and the defendant, who is the first plaintiff's father and the second plaintiff's estranged husband, are the registered proprietors. The title is held by the first plaintiff Sung Soo Kim, as to a one quarter share as tenant-in-common with the defendant Yong O Kim, the second plaintiff Jae Koo Kim and the first plaintiff Sung Soo Kim as joint tenants as to a three quarter share.

2 An affidavit of Joseph Khoury sworn 23 August 2006 proves service of the summons and affidavits on the defendant on 18 August 2006. There was no appearance on behalf of the defendant today. Mr Fisicaro, who appears for the plaintiffs, informs me that last night he had a telephone conversation with the defendant, who said that he would not be coming to Court today.

3 The proceedings, at least as between the second plaintiff and the defendant, are a matrimonial cause, and accordingly fall within what is prima facie the exclusive jurisdiction of courts exercising jurisdiction under the (Cth) Family Law Act. However, as explained in Young v Lalic [2006] NSWSC 18, the jurisdiction of the Family Court of Australia is vested in this Court pursuant to so much of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) as survives the decision of the High Court in Re Wakim; Ex parte McNally (1999) 198 CLR 511. Accordingly, there is no jurisdictional obstacle to this Court making a s 66G order, notwithstanding that the proceedings are, at least in part, between wife and husband.

4 The formal requirements for the making of the order have been proved, and a consent of trustees and affidavit of fitness is in evidence.

5 The ordinary form of order is that the title vests in the trustees subject to encumbrances affecting the entirety of the…

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 Kim & 1 or v Kim

Details

AGLC: Kim and 1 or v Kim [2006] NSWSC 472
Case: [2006] NSWSC 472
Decision Date: 14/09/2006

CaseChat Overview and Summary

The case of Kim and Kim involved a dispute concerning the co-ownership of a property subject to mortgages. The court was asked to determine whether the first plaintiff was entitled to exoneration from the mortgage debts when he had used money secured by the mortgages for his own separate benefit. The first plaintiff claimed that the mortgagees had wrongfully refused to exonerate him from the mortgage debts. The first plaintiff and the second plaintiff were the co-owners of the property, with the first plaintiff holding the property as trustee for the second plaintiff. The court was required to decide whether the first plaintiff was entitled to exoneration from the mortgage debts, given that he had used the money secured by the mortgages for his own separate benefit.

The court considered whether the first plaintiff was entitled to exoneration from the mortgage debts when he had used money secured by the mortgages for his own separate benefit. The court examined the nature of the co-ownership, the use of the mortgage funds, and the obligations of the mortgagees. The court held that the first plaintiff was not entitled to exoneration from the mortgage debts as he had used the money secured by the mortgages for his own separate benefit, which was not in the best interests of the second plaintiff. The court found that the first plaintiff had breached his fiduciary duties as a trustee by using the mortgage funds for his own benefit, and therefore, he was not entitled to exoneration from the mortgage debts.

The court further held that the mortgagees were not bound to exonerate the first plaintiff from the mortgage debts as he had used the money secured by the mortgages for his own separate benefit. The court emphasised the importance of maintaining the integrity of the fiduciary relationship between the co-owners and the obligation of the mortgagees to act in the best interests of the second plaintiff. The court concluded that the first plaintiff was not entitled to exoneration from the mortgage debts and that the mortgagees were not required to exonerate him from the mortgage debts.

The court ordered that the first plaintiff was not entitled to exoneration from the mortgage debts and that the mortgagees were not required to exonerate him from the mortgage debts. The court further ordered that the first plaintiff was liable to the second plaintiff for any loss or damage suffered by the second plaintiff as a result of the first plaintiff's use of the mortgage funds for his own separate benefit. The court's decision emphasised the importance of maintaining the integrity of the fiduciary relationship between co-owners and the obligation of mortgagees to act in the best interests of the second plaintiff.

Orders