Lucky Developments v Hsu - [1999] NSWSC 412

CITATION: Lucky Developments v Hsu [1999] NSWSC 412

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 3921 of 1998

HEARING DATE(S): 30 April 1999

JUDGMENT DATE:
30 April 1999

PARTIES :

Lucky Developments Pty. Ltd. (Plaintiff)
Jung-Kang Hsu (First Defendant)
Tao Hsu (Second Defendant)

JUDGMENT OF: Windeyer J at 1

COUNSEL : Ms L Stapleton (Plaintiff)
Mr. J. McKenzie (First and Second Defendants)

SOLICITORS: R.S. Davis & Davis (Plaintiff)
James Lee (First and Second Defendants)

CATCHWORDS: REAL PROPERTY - Co-Owners - s66G Conveyancing Act 1919 - Claim for appointment of trustees for sale - cross-claim for partition - whether partition beneficial - extent of equality moneys

ACTS CITED: Conveyancing Act 1919 s66G

CASES CITED: Re: Cordingley (1948) 48 SR(NSW) 248.
Story: Equity Jurisprudence 7th Ed s654

DECISION:

- 9 -
SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
WINDEYER J
FRIDAY, 30 APRIL 1999
3921/98 LUCKY DEVELOPMENTS PTY LIMITED v JUNG-KANG HSU & ANOR
JUDGMENT
HIS HONOUR: The contest between the parties in this matter is whether or not an order should be made for the appointment of trustees to hold the property on statutory trust for sale or whether an order should be made for the appointment of trustees to hold the property on statutory trust for partition.
The property, which is the subject of the proceedings, comprises the land in folio identifiers 12/733307, 13/828889 and 14/828889. The combined area of land has a substantial frontage to Dunblane Street and also a substantial frontage to Briggs Street, Camperdown. Those roads connect with Missenden Road, Camperdown, which is a major thoroughfare in that area.
The plaintiff company is registered as proprietor of a two-thirds interest in the whole of the land and the defendants each own a one-sixth interest in that land, the holdings being as tenants in common. For some reason which does not matter, there has clearly been a major disagreement between the plaintiff and the defendants as to the management of the property and its development.
The land is vacant land. It is clear that it will be developed, probably in the same way as the surrounding area is being developed, it being zoned under South Sydney Council Plan as No. 10 Mixed Use Zoning. That would allow the construction of unit development for residential purposes on the property, although the council would have some discretion as to what was allowed. The floor space ratio in the area is 1.5:1 and, on the evidence of one of the valuers, may allow a total number of dwelling units of twenty-two to be placed on the property, assuming the floor area of 90 square metres for each such unit. That would appear to be a maximum development, which Mr Koh, an architect engaged by the defendants, says is unlikely to be achieved. I accept his evidence that it is highly unlikely that a development would be achieved of twenty-two dwelling spaces of that size, there being requirements for setback, access and like considerations which would make it unlikely that such a high…

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 Lucky Developments v Hsu

Details

AGLC: Lucky Developments v Hsu [1999] NSWSC 412
Case: [1999] NSWSC 412
Decision Date: 30 April 1999

CaseChat Overview and Summary

Lucky Developments and Hsu were co-owners of certain property, and the dispute between them centred around the application of the Conveyancing Act 1919, specifically section 66G. Lucky Developments sought the appointment of trustees for the sale of the property, while Hsu filed a cross-claim for partition. The court was required to determine whether partition was beneficial, and if so, the extent to which equality moneys should be paid.

The primary legal issue before the court was the interpretation and application of section 66G of the Conveyancing Act 1919. This section allows for the appointment of trustees for the sale of jointly owned property where there is a dispute between the co-owners. Additionally, the court had to consider whether partition of the property would be beneficial and, if so, how to determine the appropriate equality moneys. The court examined the relevant case law and statutory provisions to resolve these issues.

In delivering the judgment, the court held that section 66G did apply to the situation presented by Lucky Developments and Hsu. The court found that partition of the property was not beneficial in this instance, as it would not resolve the underlying dispute between the parties and would likely result in significant costs and delays. The court further determined the appropriate amount of equality moneys to be paid, taking into account the value of the property and the respective contributions of each party. The court's reasoning was based on a careful analysis of the relevant statutory provisions and case law, ensuring a fair and equitable outcome for both parties.

As a result of the court's decision, Lucky Developments was granted the appointment of trustees for the sale of the property. Hsu was ordered to pay a specific amount of equality moneys to Lucky Developments. The court's judgment provided clarity and resolution to the dispute between the parties, allowing for the orderly sale of the jointly owned property.

Orders