Lo v Huang - [2020] QCA 97

SUPREME COURT OF QUEENSLAND

CITATION:

Lo v Huang [2020] QCA 97

PARTIES:

PEIYI LO
(appellant)
v
ROBERT YONG CONG HUANG
(respondent)

FILE NO/S:

Appeal No 7367 of 2019
DC No 2821 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2019] QDC 61 (Jarro DCJ)

DELIVERED ON:

8 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

30 October 2019

JUDGES:

Fraser JA, Henry and Brown JJ

ORDERS:

1. Appeal allowed.

2. The parties are to submit draft orders for the Court’s consideration within fourteen days of the date of publishing these reasons.

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – MORTGAGES, CHARGES AND ENCUMBRANCES – EQUITABLE MORTGAGES – HOW CREATED – OTHER CASES – where the appellant owned a one-fifth share in a property at Toorbul and the respondent owned the remaining four-fifths share in the same property – where the appellant made a payment, pending settlement, for a one-fifth share in a property at Parkinson – where the parties entered into a deed – where the operative part of the deed related to indemnity – where the recitals to the deed stated the respondent provided their four-fifths share in the Toorbul property as security for the appellants payment regarding the Parkinson property – whether the recitals in the deed recorded a concluded and binding agreement in relation to the security provided by the respondent – whether the appellant had an equitable mortgage over the Toorbul property

Property Law Act 1974 (Qld), s 11, s 59

Allen’s Asphalt Pty Ltd v SPM Group Pty Ltd [2010] 1 Qd R 202; [2009] QCA 134, cited
Duff v Blinco & Anor (No 2) [2007] 1 Qd R 407; [2006] QCA 497, considered
English Scotland and Australia Bank Ltd v Phillips (1937) 57 CLR 302; [1937] HCA 6, considered
Farrall v Hilditch (1859) 5 CB(NS) 840; [1859] EngR 331, considered
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; (2009) NSWLR 603, cited
Lexi Holdings PLC v Stainforth [2006] EWCA Civ 988, considered
Rava v Logan Wines [2007] NSWCA 62, considered

COUNSEL:

S Anderson for the appellant
B Vass for the respondent

SOLICITORS:

Cathay Lawyers for the appellant
Mills Oakley for the respondent

FRASER JA: I agree with the reasons for judgment of Brown J and the orders proposed by her Honour.
HENRY J: I agree with the reasons of Brown J and the orders proposed by her Honour.
BROWN J: Mrs Peiyi Lo (the Appellant) commenced proceedings against Mr Robert Huang (the Respondent) in the District Court of Queensland to recover $359,853.76,[1] said to be secured by an equitable mortgage over a property at Lot 104 Hume Road, Toorbul (Toorbul Property), owned by the Respondent. The Appellant also claimed $11,613.80 as net rental income from the Respondent. The learned trial judge found there was no equitable mortgage securing repayment of the amount in question. The question to be determined upon this appeal is…

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 Lo v Huang

Details

AGLC: Lo v Huang [2020] QCA 97
Case: [2020] QCA 97
Decision Date: 8 May 2020

CaseChat Overview and Summary

The case of Lo v Huang involved a dispute over the ownership of shares in two properties. The appellant owned a one-fifth share in a property located at Toorbul, while the respondent owned the remaining four-fifths share. The appellant had made a payment for a one-fifth share in another property at Parkinson, pending settlement. The parties entered into a deed, the operative part of which related to indemnity, but the recitals stated that the respondent provided their four-fifths share in the Toorbul property as security for the appellant's payment regarding the Parkinson property. The appellant claimed that the recitals in the deed recorded a concluded and binding agreement in relation to the security provided by the respondent, and that they had an equitable mortgage over the Toorbul property.

The court had to determine whether the recitals in the deed recorded a concluded and binding agreement in relation to the security provided by the respondent, and whether the appellant had an equitable mortgage over the Toorbul property. The court considered the nature of the recitals in the deed and whether they constituted a concluded agreement. The court also considered the nature of the security provided by the respondent, and whether it amounted to an equitable mortgage. The court examined the intention of the parties in entering into the deed, and whether there was a mutual understanding that the Toorbul property would be used as security for the payment made by the appellant.

The court found that the recitals in the deed did record a concluded and binding agreement in relation to the security provided by the respondent. The court also found that the security provided by the respondent amounted to an equitable mortgage over the Toorbul property. The court held that the appellant had an equitable mortgage over the Toorbul property, and that the respondent's four-fifths share in the property was subject to that mortgage. The court allowed the appeal and ordered the parties to submit draft orders for the Court’s consideration within fourteen days of the date of publishing these reasons.

Orders

Orders of the court

1. Appeal allowed.

2. The parties are to submit draft orders for the Court’s consideration within fourteen days of the date of publishing these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lo v Huang [2020] QCA 97
PARTIES:	PEIYI LO (appellant) v ROBERT YONG CONG HUANG (respondent)
FILE NO/S:	Appeal No 7367 of 2019 DC No 2821 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – [2019] QDC 61 (Jarro DCJ)
DELIVERED ON:	8 May 2020
DELIVERED AT:	Brisbane
HEARING DATE:	30 October 2019
JUDGES:	Fraser JA, Henry and Brown JJ
ORDERS:	1. Appeal allowed. 2. The parties are to submit draft orders for the Court’s consideration within fourteen days of the date of publishing these reasons.
CATCHWORDS:	REAL PROPERTY – TORRENS TITLE – MORTGAGES, CHARGES AND ENCUMBRANCES – EQUITABLE MORTGAGES – HOW CREATED – OTHER CASES – where the appellant owned a one-fifth share in a property at Toorbul and the respondent owned the remaining four-fifths share in the same property – where the appellant made a payment, pending settlement, for a one-fifth share in a property at Parkinson – where the parties entered into a deed – where the operative part of the deed related to indemnity – where the recitals to the deed stated the respondent provided their four-fifths share in the Toorbul property as security for the appellants payment regarding the Parkinson property – whether the recitals in the deed recorded a concluded and binding agreement in relation to the security provided by the respondent – whether the appellant had an equitable mortgage over the Toorbul property Property Law Act 1974 (Qld), s 11, s 59 Allen’s Asphalt Pty Ltd v SPM Group Pty Ltd [2010] 1 Qd R 202; [2009] QCA 134, cited Duff v Blinco & Anor (No 2) [2007] 1 Qd R 407; [2006] QCA 497, considered English Scotland and Australia Bank Ltd v Phillips (1937) 57 CLR 302; [1937] HCA 6, considered Farrall v Hilditch (1859) 5 CB(NS) 840; [1859] EngR 331, considered Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; (2009) NSWLR 603, cited Lexi Holdings PLC v Stainforth [2006] EWCA Civ 988, considered Rava v Logan Wines [2007] NSWCA 62, considered
COUNSEL:	S Anderson for the appellant B Vass for the respondent
SOLICITORS:	Cathay Lawyers for the appellant Mills Oakley for the respondent