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Lee v Yap

Lee v Yap

Case [2021] VSCA 297 3 November 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0088

YEW HAN LEE	Applicant
v
ENG HOCK YAP & ORS (according to the attached Schedule)	Respondents

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JUDGES:	KYROU, McLEISH and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2021
DATE OF JUDGMENT:	3 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 297
JUDGMENT APPEALED FROM:	Lee v Yap (Supreme Court of Victoria, McDonald J, 25 June 2021).

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REAL PROPERTY – Caveat – Appeal against dismissal of application to remove caveats – Where applicant contracted to sell property subject to caveats – Where respondents claim interest in property in separate proceeding – Whether judge erred in refusing to remove caveats – Whether balance of convenience favoured removal – Whether judge placed undue weight on proposed undertaking proffered by applicant in separate proceeding – Whether judge erred in making certain findings with respect to proposed undertaking – Specific error established – Appeal allowed – Caveats removed – Bradto Pty Ltd v Victoria (2006) 15 VR 65; Piroshenko v Grojsman (2010) 27 VR 389; Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126, considered – Transfer of Land Act 1958 s 90(3).

PRACTICE AND PROCEDURE – Application for extension of time – Delay of two business days in filing application for leave to appeal – No satisfactory explanation for delay given – Whether lack of satisfactory explanation outweighed by merits of appeal – Extension granted – Supreme Court (General Civil Procedure) Rules 2015 r 64.08.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D J Williams QC	Welner Lawyers
For the First and Second Respondents	Mr I D Martindale QC with Ms C Willshire	Willocks Lawyers
For the Third Respondent	Mr P G Turner	Robinson Gill Lawyers
For the Fourth Respondent	No appearance

KYROU JA
McLEISH JA
WALKER JA:

The applicant, Ms Lee, is the registered owner of a property in Iris Road, Glen Iris. The Glen Iris property was transferred to her in 2005 by Yap Brothers Holdings Pty Ltd (the ‘trustee’), which was the trustee of the Yap Brothers Family trust (the ‘trust’), for no consideration. Ms Lee is a director of the trustee. The Glen Iris property is subject to three caveats, lodged by the first to third respondents (the ‘caveators’ or the ‘respondents’). It is also subject to a mortgage in favour of DBS Bank (Hong Kong) Ltd. Ms Lee and the caveators are involved in a dispute about the Glen Iris property in separate proceedings, in which the caveators allege that the property was transferred to Ms Lee in breach of her duties to the trust (the ‘substantive proceeding’). The caveators allege that the property is held by Ms Lee on a resulting trust for those persons who made contributions to the trustee.

In July 2019, in the substantive proceeding, the first respondent and another party[1] applied to have a receiver appointed to the trust to secure the trust property. Ms Lee and the third respondent were the first and…

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 Lee v Yap

Details

AGLC: Lee v Yap [2021] VSCA 297
Case: [2021] VSCA 297
Decision Date: 3 November 2021

CaseChat Overview and Summary

The appeal in Lee v Yap involved the applicant, Lee, who sought to remove caveats lodged by the respondents, Yap, over a property that Lee had contracted to sell. The dispute was heard in the Supreme Court of Victoria, with the Court of Appeal subsequently reviewing the case. The primary legal issues addressed by the court were whether the trial judge erred in his decision to refuse the removal of the caveats, whether the balance of convenience favoured the removal, and if the trial judge had placed undue weight on an undertaking offered by Lee in a separate proceeding.

The Court of Appeal found that the trial judge erred in his decision-making process, particularly in considering the balance of convenience and the proposed undertaking. The appeal court highlighted that the trial judge had given excessive weight to the proposed undertaking in a separate proceeding, which affected the overall assessment of the case. Furthermore, the court determined that the trial judge made specific errors in his findings regarding the proposed undertaking. These errors were significant enough to warrant the allowance of the appeal and the removal of the caveats. The Court of Appeal referred to previous cases such as Bradto Pty Ltd v Victoria and Piroshenko v Grojsman, as well as statutory provisions under the Transfer of Land Act 1958.

Additionally, the court addressed the procedural aspect of the case concerning the application for an extension of time to file the appeal. Despite a two-business-day delay in filing the application for leave to appeal, the court granted the extension due to the merits of the appeal outweighing the delay. The court referred to Supreme Court (General Civil Procedure) Rules 2015 r 64.08 in making this decision. The final outcome was the allowance of the appeal, the removal of the caveats, and the granting of an extension for the appeal application.

The court’s final orders included the removal of the caveats lodged by the respondents and the allowance of the applicant’s appeal. The extension of time for filing the appeal application was also granted, acknowledging the merits of the appeal despite the procedural delay.

Orders