Szeto v Situ (No 5)

[2022] NSWSC 321

Supreme Court

New South Wales

Medium Neutral Citation:	Szeto v Situ (No 5) [2022] NSWSC 321
Hearing dates:	On the papers – submissions 7 February 2022
Date of orders:	23 March 2022
Decision date:	23 March 2022
Jurisdiction:	Equity
Before:	Emmett AJA
Decision:	The Brother (the first defendant) is directed to bring in a further minute of proposed orders reflecting the determinations set out above.
Cases Cited:	Szeto v Situ (No 4) [2021] NSWSC 1691
Category:	Consequential orders
Parties:	Livy Szeto (Plaintiff/Cross-defendant) Liming Situ (First Defendant/Cross-claimant)
Representation:	Counsel: A Norrie (Plaintiff/Cross-defendant) P Cutler (First Defendant/Cross-claimant) Solicitors: Ren Zhou Lawyers (Ying Zhang) (Plaintiff/Cross-defendant) Equiton Solicitors (Defendants/Cross-claimant)
File Number(s):	2014/00285214

Judgment

1. On 23 December 2021, I gave directions for the finalisation of these proceedings in accordance with reasons previously published. [1] Pursuant to those directions, the Brother produced a further version of the Five Tables intended to reflect the various determinations that I have made in these proceedings. The figures set out in that version of the Five Tables were calculated as at 31 December 2019. In a memorandum dated 28 January 2022, the Brother also proposed orders for the finalisation of the proceedings. The orders proposed by the Brother are set out in Appendix 1 to these reasons.

   1. See Szeto v Situ (No 4) [2021] NSWSC 1691.

2. By memorandum of 6 February 2022, the Sister indicated disagreement with the further version of the Five Tables and provided an alternative version of the Five Tables. In addition, the Sister proposed changes to the orders proposed by the Brother. In his response of 7 February 2022, the Brother indicated disagreement with most of the changes to the draft orders proposed by the Sister. The exchange of memoranda raises several issues, which I shall resolve on the basis of my understanding of the issues from the relevant memoranda.

3. By the first order proposed by the Brother, the Court is to note that the amount payable by the Sister to the Brother as at 31 December 2019 is $175,410. The sum of $175,410 is derived from Table 5 of the Brother’s version of the Five Tables. The alternative Table 5 prepared by the Sister shows a sum of $809,981 owing by the Brother to the Sister as at 31 December 2019. As I understand the position, the figures in Table 5 prepared by the Brother reflect the rulings and determinations that I have made and the agreements that have been reached by the parties. The Sister’s proposed alterations to the Five Tables appear to me to be an attempt to reargue rulings that have been made or to resile from concessions made in the course of numerous hearings.

4. By the second order proposed by the Brother, the Court is to note that that the amount payable by the Brother to the Sister pursuant to orders made on 16 April 2018 is $578,271. The Sister disagrees with that proposed notation and claims, in addition to the sum of $578,274, interest in the amount of $101,329.72 pursuant to the orders relating to the Carlton Property. The Brother accepts that the net amount of the contribution claims as at 31 December 2019, which he says is in his favour, should be set off against the amount of the judgment relating to the Carlton Property but asserts that interest relating to the proceeds of the sale of the Carlton Property should be calculated only on the reduced balance of the judgment relating to the Carlton Property after the set-off.

5. However, where the final accounting is being made as at 31 December 2019, I consider that interest on the proceeds of sale received by the Brother should run to that date, since the Brother had the use of the proceeds during that time. Whether there should be interest on the balance of the accounting is a different question. Interest should be payable on the balance found to be owing as at the date of the accounting at the rate fixed for the calculation of interest on the proceeds of sale of the Carlton Property.

6. Orders 10, 11 and 13 proposed by the Brother contemplate further agreement as to the respective values of the Brother’s interests in the Lakemba property and the Turrella property and set off of those values against amounts owing. If agreement is not reached, applications under s 66G of the Conveyancing Act.1919 (NSW) are proposed. I do not consider that, in the absence of agreement, any orders should be made about set-off at this stage. If the parties can reach an agreement, they can give effect to it. If not, applications can be made in the ordinary course for orders appointing trustees for sale of the Lakemba Property and the Turrella Property.

7. On 31 July 2020, the Sister filed a motion seeking release of the sum of $50,035.68 from an identified offset account with NAB. An interim order was made releasing half of the funds to the Sister on the basis that there was no prejudice to the Brother in releasing those funds. Order 18 proposed by the Brother required the Sister to do all things necessary to enable the offset account with NAB to be closed and the balance paid to the Brother. On the other hand, the Sister contends that the balance should be paid to her. I accept the Brother’s contention that it would be consistent with the way other issues have been dealt that the balance of 50 percent in the NAB account were to be paid to him.

8. The Brother will remove his caveat from the Arncliffe Property. He accepts that that matter was overlooked in the preparation of the draft orders. As I understand the position, the balance of orders proposed by the Brother, other than those mentioned in these reasons, are acceptable to the Sister.

9. The Brother is directed to bring in a further minute of proposed orders reflecting the determinations set out above.

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Appendix 1

DRAFT ORDERS

(as proposed by the Defendant)

CONTRIBUTION CLAIM, OCCUPATION FEES & CARLTON JUDGMENT

The Court notes:

1. The net amount payable by the Plaintiff to the Defendant for the contribution claim in respect of the Carlton, Lakemba and Turrella properties (and including occupation fees) is $175,410 as at 31 December 2019.

2. The amount payable by the Defendant to the Plaintiff pursuant to orders made on 16 April 2018 (ie a declaration of ownership in respect of Carlton) is $578,271.

The Court orders:

1. That the amount of contribution claim and occupation fees be offset against the outstanding Carlton judgment as at 31 December 2019.

2. That as at 31 December 2019 the amount owing by the Defendant to the Plaintiff pursuant to the Carlton judgment is $402,861.

3. That as at 28 January 2022, the amount of interest payable by the Defendant to the Plaintiff on the Carlton judgment is $94,367.67.

4. No further interest is payable pending resolution of the value of the Defendant's interest in the Lakemba and Turrella properties.

ARNCLIFFE PROPERTY

The Court declares:

1. The Plaintiff is the sole owner at law and equity of the property situated at 52 Dowling Street, Arncliffe (Folio identifier B/413014).

LAKEMBA PROPERTY

The Court declares:

1. The interests (at law and in equity) of the Defendant and Plaintiff as tenants in common of the property situated at 6/34 Yerrick Street, Lakemba (folio identifier 6/SP645) (“the Lakemba Property”) are 27.8% and 72.2% respectively.

The Court orders:

1. By 1 March 2022, the Plaintiff is to do all things necessary to transfer 27.8% of the title of the Lakemba Property to the Defendant as tenant in common.

2. That, if in the event, the parties are able to agree the value of the Defendant's interest in the Lakemba Property prior to 28 February 2022 (and offset the value against the outstanding judgment debt), then orders 8 and 9 will be vacated.

The Court notes:

1. In the event that agreement is not reached the Defendant intends to seek consequential orders pursuant to section 66G Conveyancing Act.

TURRELLA PROPERTY

The Court declares:

1. The Plaintiff and the Defendant are each 50% owners at law and equity of the property situated at 30B Hannam Street, Turrella (Lot B in DP 417843).

The Court notes:

1. In the event that agreement is not reached about the value of the Defendant's 50% interest in the Turrella Property by 28 February 2022, the Defendant intends to seek consequential orders pursuant to section 66G Conveyancing Act.

HURSTVILLE PROPERTY

The Court declares:

1. The Plaintiff has no interest at law or equity in the property situated at 74 Millett Street, Hurstville (folio identifier D/311129).

The Court orders:

1. By 1 March 2022 the Plaintiff is to do all things necessary to remove caveat AN886229 from the title of the Hurstville Property.

2. The proceedings against the Second Defendant are dismissed.

OFFSET ACCOUNT

The Court notes:

1. On or about 30 September 2020, orders were made by consent and without admissions that $25,000 be paid to the Plaintiff from an offset account held with the NAB (BSB 082 062 and a/c 56 126 4065) (“the Offset Account”).

The Court orders

1. The Plaintiff is do all things necessary and sign all documents required by the NAB to enable the Offset Account to be closed and the balance paid to the Defendant.

COSTS

The Court notes:

1. Each party have had some measure of success in the multitude of issues litigated in these proceedings.

The Court orders

1. Each party is to pay their own costs.

Endnote

Decision last updated: 23 March 2022