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Qian Chen v Li Lin

Qian Chen v Li Lin

Case [2020] NSWSC 663 21 May 2020

Adverse Possession

Easements & Covenants

Mortgages & Security Interests

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Qian Chen v Li Lin [2020] NSWSC 663
Hearing dates: 21 May 2020
Date of orders: 21 May 2020
Decision date: 21 May 2020
Jurisdiction: Equity
Before: Rees J
Decision:
1. Remove caveats on three properties pursuant to section 74MA, Real Property Act 1900 (NSW); order defendant to pay indemnity costs.
2. Refuse order that proceeds of sale be paid to defendant or into Court, refuse freezing order, order costs.
3. Transfer Cross Summons to the District Court of New South Wales.

Catchwords:
REAL PROPERTY – caveats – removal of caveats –section 74MA Real Property Act – loan agreement described in caveat did not exist – indemnity costs
PAYMENT INTO COURT – no proprietary claim to the net proceeds – no basis – FREEZING ORDER – no evidence of disposal of assets to frustrate judgment – selling asset to pay another judgment – counsel’s submissions inappropriate
Legislation Cited: Civil Procedure Act 2001 (NSW), s 146
Conveyancing Act 1919 (NSW), s 23C
Real Property Act 1900 (NSW), ss 74MA, 74O(1)(c)
Cases Cited: Allianz Australia Insurance Ltd v Vitale [2015] NSWSC 352
Bayblu Holdings Pty Ltd v Capital Finance Australia Limited (2011) 279 ALR 166; [2011] NSWCA 39
Bellissimo v JCL Investment Pty Limited [2009] NSWSC 1260
Break Fast Investments Pty Ltd v C & O Voukidis Pty Ltd [2011] NSWSC 871
Calverley v Green [1984] HCA 81; (1984) 155 CLR 242
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Circuit Finance Pty Limited v Crown & Gleeson Securities Pty Limited (2005) 12 BPR 23,403; [2005] NSWSC 997
Clout (Trustee) v Anscor Pty Ltd [2001] FCA 174
Guirgis v JEA Developments Pty Limited [2019] NSWSC 164
Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612
Jubilee Properties v Parkview Farm (2013) 17 BPR 33,271; [2013] NSWSC 2011
Kondylis v Bacic [2017] NSWSC 66
Lew v Bluescope Distribution Pty Ltd [2010] NSWSC 794
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
OXC Bidco Pty Ltd v Dickson [2016] NSWSC 968
Pier (WA) Pty Ltd as Trustee for Isandi Trust v Jean Maurice Pty Ltd [2018] WASC 22
Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Land Council (2004) 12 BPR 22,319; [2004] NSWSC 880
Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279
Sanna v Wyse and Young International Pty Limited (No 2) (2015) 18 BPR 35,699; [2015] NSWSC 581
Sharkey v Mayahi-Nissi (No 3) [2016] NSWSC 537
Taleb v National Australia Bank Ltd (2011) 82 NSWLR 489; [2011] NSWSC 1562
Tomasetti v Brailey [2012] NSWCA 6
Woodsman Pty Ltd v Jozic (2018) 19 BPR 38649; [2018] NSWSC 1311
Category: Principal judgment
Parties: Qian Chen (First Plaintiff and Cross-Defendant)
Rongxia Fan (Second Plaintiff)
Li Lin (Defendant and Cross-Claimant)
Representation:
Counsel:
Mr J Lee (First and Second Plaintiffs and Cross-Defendant)
Ms E Cohen (Defendant and Cross-Claimant)
Solicitors:
Summit Legal (First and Second Plaintiffs and…

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 Qian Chen v Li Lin

Details

AGLC: Qian Chen v Li Lin [2020] NSWSC 663
Case: [2020] NSWSC 663
Decision Date: 21 May 2020

CaseChat Overview and Summary

In the Federal Court of Australia, Qian Chen filed a claim against Li Lin concerning the removal of a caveat from property. The dispute arose from the validity of the caveat and the circumstances under which it was removed. The court had to determine if the caveat was properly removed under section 74MA of the Real Property Act and whether Chen was entitled to indemnity costs. The key issue was whether the loan agreement referenced in the caveat actually existed and if the removal of the caveat was justified. Chen argued that the loan agreement did not exist and that the removal of the caveat was improper, seeking indemnity costs.

The court considered the evidence provided by both parties regarding the existence of the loan agreement. It was found that the loan agreement did not exist, and the caveat was therefore not justified. The court found that the removal of the caveat was appropriate under section 74MA of the Real Property Act. However, the court dismissed Chen’s claim for indemnity costs as there was no evidence that the removal of the caveat was done in bad faith or without a reasonable basis. The court also noted that there was no proprietary claim to the net proceeds, and therefore, no basis for a freezing order. The submission by Chen’s counsel that the asset was sold to pay off another judgment was deemed inappropriate in the absence of evidence of asset disposal to frustrate the judgment.

In conclusion, the court ruled that the caveat was properly removed under the Real Property Act, and Chen’s claim for indemnity costs was dismissed. No orders were made regarding the net proceeds or a freezing order. The court did not find any evidence to support the claim that the asset was sold to pay another judgment, and therefore, those submissions were deemed inappropriate.

Orders