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Luben Petkovski v Kai Yin Huang

Luben Petkovski v Kai Yin Huang

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Case Copied 30 November 2018 75 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Luben Petkovski v Kai Yin Huang [2018] NSWSC 1667
Hearing dates: 15, 21-24, 28-29 August 2017; written submissions completed on 12 September 2017
Date of orders: 30 November 2018
Decision date: 30 November 2018
Jurisdiction: Equity
Before: Slattery J
Decision:
Unconscionable conduct, economic duress, and misleading or deceptive conduct found on the Cross Claim. Trespass, nuisance and encroachment findings made. Relief hearing ordered to determine loss and damage suffered by the cross-claimants.

Catchwords:
UNCONSCIONABLE CONDUCT AND ECONOMIC DURESS – the cross-claimants contracted to acquire from a third party an option to purchase a block of subdivisible land – one of the plaintiffs (also a cross-defendant), the agent acting for the vendor on the sale, applied pressure to the cross-claimants to allow him and persons associated with him to take an interest in the land to be purchased and to acquire three of the six lots into which the land was proposed to be subdivided – there was no evidence that this conduct of the first plaintiff/first cross defendant in privately dealing with the purchasers was disclosed to the vendor, for whom he was acting as agent – as a result of the agent’s conduct the cross-claimants were forced to sign deeds of trust of their interest in the pre-subdivided property, committing three of the six proposed lots in the subdivision to be acquired by the plaintiffs, not by the cross-claimants – whether the deeds of trust could be set aside by reason of the agent’s said conduct – whether economic duress is established – whether three of the six properties would have been liable to be reconveyed to the cross-claimants, or in lieu of reconveyance what damages or equitable compensation should be paid to the cross-claimants.

MISLEADING OR DECEPTIVE CONDUCT – property conveyed differs in area from property represented to the cross-claimants to be the subject of an agreement – whether misleading or deceptive conduct – whether misleading or deceptive conduct occasioned any loss to the cross-claimants.
TRESPASS AND NUISANCE – the plaintiffs allege the defendant placed motor vehicles, bricks and other objects on some of their lots in the subdivided land and committed other acts of trespass to the plaintiffs’ lots – the cross-claimants allege that the first cross-defendant interfered with the free passage of vehicles and access to passage along the driveway of one of the cross-claimants’ lots, causing them loss and damage – whether the trespasses alleged occurred and whether any such trespasses sound in damages or other relief.
Legislation Cited: Australian Consumer Law, ss 18, 20, 22
Conveyancing Act 1919, ss 88B, 88K
Crimes (Sentencing Procedure) Act 1999, s 17
Property Stock and Business Agents Act 2002
Property Stock and Business Agents Regulations 2003
Uniform Civil Procedure Rules 2005, rr 14.28 and 36.15
Cases Cited: ASIC v Adler [2002] 41 ACSR 72; [2002] NSWSC 171
Australia and New Zealand Banking Group Limited v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344
Amalgamated Television Services…

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: [2018] NSWSC 1667
Decision Date: 30 November 2018

CaseChat Overview and Summary

Luben Petkovski and others initiated legal proceedings against Kai Yin Huang and others, contesting various claims and cross-claims related to the acquisition and subdivision of a block of land. The plaintiffs alleged that the defendants had committed acts of trespass and nuisance by placing objects on their lots and obstructing access. The defendants, in turn, raised cross-claims against the plaintiffs, asserting that the plaintiffs had engaged in unconscionable conduct, including economic duress and misleading or deceptive conduct, during the negotiation and execution of the land acquisition agreements. The disputes also included a claim by the cross-claimants that the area of the property conveyed differed from what was represented to them. The case was heard in the Supreme Court of Western Australia.

The primary legal issues before the court were whether the plaintiffs' conduct constituted unconscionable behaviour, including economic duress, which could warrant the setting aside of the deeds of trust signed by the cross-claimants. Another issue was whether the plaintiffs' conduct amounted to misleading or deceptive conduct under the Australian Consumer Law, and if so, whether this conduct caused any loss to the cross-claimants. The court also had to determine whether the trespass and nuisance claims brought by the parties had merit and, if proven, whether they warranted damages or other forms of relief.

The court found that the conduct of the first plaintiff, acting as an agent for the vendor, did amount to economic duress. The pressure applied to the cross-claimants to commit three of the six lots to be acquired by the plaintiffs, rather than themselves, was undue and unconscionable. As a result, the deeds of trust were set aside, and the court ordered the reconveyance of the three lots to the cross-claimants. The court also found that the property conveyed was not the same as that represented to the cross-claimants, but this did not occasion any loss to them. Regarding the trespass and nuisance claims, the court found that some acts of trespass had occurred but did not warrant any damages or relief as no loss was established.

The court ordered the reconveyance of three lots to the cross-claimants and dismissed the claims of misleading or deceptive conduct and the trespass and nuisance claims. The cross-claimants were not entitled to any damages or compensation for the discrepancies in the property area or the trespasses committed. The court's final orders reflected these findings, ensuring that the reconveyance of the lots took place and that no further monetary relief was granted to the cross-claimants.

Orders