Lei v Lei (Enforcement of declaration) - [2020] VSC 840

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S CI 2010 03712

BETWEEN:

ZHENJI LEI (ALSO KNOWN AS PETER LEI)

& ORS

Plaintiffs

and

YUHUI LEI (ALSO KNOWN AS JULIYA LEI)

& ORS

Defendants

AND BETWEEN

YUHUI LEI (ALSO KNOWN AS JULIYA LEI)

& ANOR

Plaintiffs by Counterclaim

and

ZHENJI LEI (ALSO KNOWN AS PETER LEI)

& ORS

Defendants by Counterclaim

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JUDGE:	RIORDAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2020
DATE OF JUDGMENT:	11 December 2020
CASE MAY BE CITED AS:	Lei v Lei (Enforcement of declaration)
MEDIUM NEUTRAL CITATION:	[2020] VSC 840

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REMEDIES – Inherent power to enforce declaratory relief – Failure by first defendant to accept a transfer of property consequent on a declaration by the Court – Orders made in furtherance of declaration.
TRANSFER OF LAND – Plaintiffs unable to produce certificate of title to effect transfer of land – Orders for Registrar of Titles to create a new folio for subject land and for Prothonotary to execute a transfer of land on behalf of the first defendant in accordance with the declaration.
COSTS – Order for indemnity costs fixed by the Court for breach of the overarching obligation to cooperate under s 20 of the Civil Procedure Act 2010 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the First and Second Plaintiffs	Mr J Nunns	Falcone & Adams Lawyers
For the First Defendant	No appearance
For the Fourth Defendant	No appearance

HIS HONOUR:

The second plaintiff and the first defendant are registered as joint proprietors of 1119 Whitehorse Road, Box Hill, being the land described in Certificate of Title Volume 11301 Folio 641 (‘the Box Hill property’).

On 17 June 2016, I published my reasons for judgment following a nine day trial in this proceeding,[1] and made declarations including that the second plaintiff holds her legal interest in the Box Hill property on trust for the first defendant (‘the declaration’).[2]
[1]Lei v Lei [2016] VSC 336.
[2]On 29 July 2016, this declaration was corrected pursuant to rule 36.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to refer to 1119 Whitehorse Road, Box Hill, rather than 119 Whitehorse Road, Box Hill.

The High Court dismissed applications for special leave to appeal from the judgment in this proceeding on 14 December 2016 and 30 March 2017.[3]
[3]Lei v Lei [2016] HCASL 342 (Bell and Gageler JJ); [2017] HCASL 65 (Nettle and Gordon JJ).

On 30 August 2018, Whelan JA dismissed an application by the first defendant for review of a decision of the Registrar refusing an extension of time to apply for leave to appeal against the judgment in this proceeding.

On 14 November 2018, the High Court dismissed an application for special leave to appeal from the decision of Whelan JA.[4]
[4]Lei v Lei [2018] HCASL 342 (Keane and Edelman JJ).

On 14 May 2020, the Court of Appeal dismissed an application for leave to appeal from a decision of…

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.

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Details

Case: [2020] VSC 840
Decision Date: 11 December 2020

CaseChat Overview and Summary

The case of Lei v Lei involved the enforcement of a declaration regarding the transfer of a property. The parties involved were the plaintiffs, Lei, and the first defendant, also Lei. The dispute arose from the first defendant's refusal to accept a transfer of property that was contingent upon a court declaration. The matter was heard in the Supreme Court of Victoria.

The primary legal issues addressed by the court were whether the court had the inherent power to enforce declaratory relief and what steps could be taken to ensure compliance with the declaration. Additionally, the court had to consider the plaintiffs' inability to produce a certificate of title for the land and the breach of the overarching obligation to cooperate under the Civil Procedure Act 2010 (Vic).

The court determined that it had the inherent power to enforce the declaration and issued orders for the Registrar of Titles to create a new folio for the subject land. Furthermore, the Prothonotary was directed to execute a transfer of land on behalf of the first defendant in accordance with the court's declaration. The court also addressed the issue of costs, ordering the first defendant to pay indemnity costs due to the breach of the overarching obligation to cooperate.

The final orders of the court mandated the creation of a new folio for the land, execution of a transfer on behalf of the first defendant, and the payment of indemnity costs by the first defendant.

Orders