Lo v Huang (No 2) - [2020] QCA 149

SUPREME COURT OF QUEENSLAND

CITATION:

Lo v Huang (No 2) [2020] QCA 149

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:

14 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser JA and Henry and Brown JJ

ORDERS:

1.   The appeal is allowed.

2.   Paragraph 7 of the Orders of 28 June 2019 is set aside.

3.   The Court:

(a)   Declares that the appellant held an equitable mortgage over 104 Hume Road, Toorbul in the State of Queensland, 4510 as property described as Lot 194, Crown Plan CG1255, Local Government, Moreton Bay (Toorbul Property) in the amount of $359,854.76;

(b) Declares that the appellant is entitled to distribution of the remaining proceeds of sale of the Toorbul Property, namely $315,535.66 held on trust by Bruce John Doyle, the Trustee of the Toorbul Property.

4.   The appellant have liberty to apply.

5.   The respondent pay the appellant’s costs of the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – GENERALLY – OTHER MATTERS – where the appellant was successful in the appeal – where the appellant submitted draft orders at the court’s invitation – where the respondent did not respond to the appellant’s draft orders – where the appellant did not press personal relief on appeal – where the appellant’s draft orders sought personal relief – whether personal relief should be ordered

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the appellant was unsuccessful at trial – where the trial costs were reserved – where the appellant was successful in the appeal – whether the appellant should be awarded costs at trial and on appeal

Civil Proceedings Act 2011 (Qld), s 58, s 59

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: This Court heard the appeal in this matter on 30 October 2019 and published its reasons on 8 May 2020, whereby Mrs Peiyi Lo (the Appellant) was successful in her appeal.[1] The Appellant provided draft orders as to the appropriate relief to the Court at its invitation. Mr Robert Huang (the Respondent) did not respond to the proposal or provide alternative draft relief.
[1][2020] QCA 97.
The Appropriate Form of Orders
This Court found that the Appellant had an equitable mortgage over the Toorbul Property owned by the Respondent. The Toorbul Property was sold by a statutory…

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 (No 2)

Details

AGLC: Lo v Huang (No 2) [2020] QCA 149
Case: [2020] QCA 149
Decision Date: 14 July 2020

CaseChat Overview and Summary

The appeal in Lo v Huang (No 2) was heard by the court, where the appellant, Lo, sought to overturn a previous decision regarding an equitable mortgage over property located at 104 Hume Road, Toorbul. The respondent, Huang, did not respond to the appellant's draft orders, which included a request for personal relief despite the appellant not pressing for such relief on appeal. The primary legal issues before the court were whether personal relief should be granted despite the appellant's non-pursuit of it on appeal, and whether the appellant should be awarded costs at trial and on appeal, given the appellant's success in the appeal after being unsuccessful at trial.

The court found that the appellant had indeed held an equitable mortgage over the Toorbul Property and was entitled to the remaining proceeds of sale held by the trustee. The court set aside a previous order and declared the appellant's entitlement to the mortgage and proceeds. Given the respondent's failure to respond to the appellant's draft orders, the court proceeded with the orders as submitted. The court also addressed the costs issue, deciding that since the appellant was successful on appeal, they should be awarded costs for the appeal. However, because the appellant was unsuccessful at trial, the trial costs were reserved.

In summary, the appeal was allowed, and the original order was set aside. The court declared that the appellant held an equitable mortgage over the Toorbul Property and was entitled to the remaining proceeds of sale. The appellant was granted liberty to apply, and the respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. Paragraph 7 of the Orders of 28 June 2019 is set aside.

3. The Court:

(a) Declares that the appellant held an equitable mortgage over 104 Hume Road, Toorbul in the State of Queensland, 4510 as property described as Lot 194, Crown Plan CG1255, Local Government, Moreton Bay (Toorbul Property) in the amount of $359,854.76;

(b) Declares that the appellant is entitled to distribution of the remaining proceeds of sale of the Toorbul Property, namely $315,535.66 held on trust by Bruce John Doyle, the Trustee of the Toorbul Property.

4. The appellant have liberty to apply.

5. The respondent pay the appellant’s costs of the appeal.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lo v Huang (No 2) [2020] QCA 149
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:	14 July 2020
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Fraser JA and Henry and Brown JJ
ORDERS:	1. The appeal is allowed. 2. Paragraph 7 of the Orders of 28 June 2019 is set aside. 3. The Court: (a) Declares that the appellant held an equitable mortgage over 104 Hume Road, Toorbul in the State of Queensland, 4510 as property described as Lot 194, Crown Plan CG1255, Local Government, Moreton Bay (Toorbul Property) in the amount of $359,854.76; (b) Declares that the appellant is entitled to distribution of the remaining proceeds of sale of the Toorbul Property, namely $315,535.66 held on trust by Bruce John Doyle, the Trustee of the Toorbul Property. 4. The appellant have liberty to apply. 5. The respondent pay the appellant’s costs of the appeal.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – GENERALLY – OTHER MATTERS – where the appellant was successful in the appeal – where the appellant submitted draft orders at the court’s invitation – where the respondent did not respond to the appellant’s draft orders – where the appellant did not press personal relief on appeal – where the appellant’s draft orders sought personal relief – whether personal relief should be ordered PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the appellant was unsuccessful at trial – where the trial costs were reserved – where the appellant was successful in the appeal – whether the appellant should be awarded costs at trial and on appeal Civil Proceedings Act 2011 (Qld), s 58, s 59
COUNSEL:	S Anderson for the appellant B Vass for the respondent
SOLICITORS:	Cathay Lawyers for the appellant Mills Oakley for the respondent