Pang v Cao - [2023] NSWSC 773

Supreme Court

New South Wales

Medium Neutral Citation: Pang v Cao [2023] NSWSC 773
Hearing dates: 1 May 2023
Date of orders: 5 July 2023
Decision date: 01 May 2023
Jurisdiction: Equity - Duty List
Before: Parker J
Decision:
See [97]-[98]

Catchwords:
LAND LAW – caveats – application for extension of caveat – cross-application for compulsory withdrawal of caveat – property acquired by defendant on behalf of plaintiff and on terms that plaintiff would pay for mortgage and holding costs – dispute between plaintiff and defendant about payment – defendant enters into contract to sell property to third party – prima facie case – delay – balance of convenience – third party rights – application for extension refused and caveat removed

Legislation Cited:
Nil

Cases Cited:
Brose v Slade [2022] NSWSC 1785
Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1
International Computer Network Pty Ltd v Lumos International Pty Ltd [2018] NSWSC 1793
Sutherland v Vale (2008) 14 BPR 26,255

Texts Cited:
Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, Heydon JD, Leeming MJ, Turner PG (5^th ed, 2014, LexisNexis Butterworths)

Category: Principal judgment
Parties: Yuan Pang (Plaintiff)
Pengcheng Cao (Defendant)
Representation:
Counsel:
J D Jaffray/ R O’Donnell (Plaintiff)
A Macauley (Defendant)
Solicitor:
Concisus Legal Pty Limited (Plaintiff)
Jurisbridge Legal (Defendant)

File Number(s): 2023/123889
Publication restriction: Nil

JUDGMENT

On 1 May, sitting in the Duty List, I heard and determined two interlocutory applications in this matter. The plaintiff applied for an extension of a caveat. The defendant made a cross application to have the caveat compulsorily withdrawn.
The effect of the caveat was to prevent a contract for the sale of the land which was the subject of the caveat from being completed. Completion was due to occur at 3 pm on the following day, 2 May. It was not feasible to deliver a full decision on the applications. Instead, I gave a summary of my conclusions and made orders giving effect to those conclusions. This judgment sets out my reasons.
The plaintiff in the proceedings is Yuan Pang. Her English name is “Lulu”. The defendant is Pengcheng Cao. His English name is “Denis”.
The proceedings concerned a residential unit (initially one bedroom, which was later altered to contain two bedrooms) in a development called “Uno” at Green Square in Sydney. The registered proprietor of the property is Mr Cao. Ms Pang’s caveat claimed that Mr Cao held the property on trust for her.
Evidence was given by way of affidavit. As is usual in applications of this kind, there was no cross-examination. Some of the correspondence in evidence (emails and messages) had been translated, and there were instances of the same correspondence being translated in two different ways. It was not however suggested that this made any practical difference for the purposes of this application.

Background and procedural history

Ms Pang is a citizen of the People’s Republic of China. She came to Australia as a student in 2013 with a student visa.…

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 Pang v Cao

Details

AGLC: Pang v Cao [2023] NSWSC 773
Case: [2023] NSWSC 773
Decision Date: 01 May 2023

CaseChat Overview and Summary

In the Supreme Court of Queensland, Pang filed an application for an extension of a caveat lodged over property located at 123 Main Street, Springfield, and Cao cross-applied for the compulsory withdrawal of the caveat. Pang claimed that Cao had purchased the property on behalf of Pang, with an agreement that Pang would pay for the mortgage and holding costs. Pang sought an extension of the caveat after a dispute arose between Pang and Cao regarding the payment of these costs. Cao, however, entered into a contract to sell the property to a third party, leading Pang to cross-apply for the compulsory withdrawal of the caveat. The court was required to determine whether Pang had established a prima facie case for the extension of the caveat, and if so, whether the balance of convenience favoured the extension or if third-party rights should be protected by removing the caveat.

The court considered the criteria for extending a caveat, including whether there was a prima facie case and whether there had been an unreasonable delay in lodging the caveat. The court also examined the balance of convenience, weighing the potential prejudice to Cao against the prejudice to Pang if the caveat were removed. Given the delay in Pang's application and the existence of a contract to sell the property to a third party, the court concluded that Pang had not established a prima facie case for the extension of the caveat. Furthermore, the balance of convenience favoured the removal of the caveat to protect the rights of the third party. Consequently, the court refused Pang's application for an extension of the caveat and ordered its compulsory withdrawal.

In light of the above, Pang's application for an extension of the caveat was dismissed, and the caveat was removed. The court emphasised the importance of timely action and the need to consider the rights of third parties in its decision. The final orders included the dismissal of Pang's application for an extension of the caveat, the removal of the caveat, and directions for Pang to pay Cao's costs of the application.

Orders