Tien v Pho - [2014] VSC 391

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 01677

DEBRA XIEM TIEN	Plaintiff
v
PHUONG PHO	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2014
DATE OF JUDGMENT:	21 August 2014
CASE MAY BE CITED AS:	Tien v Pho
MEDIUM NEUTRAL CITATION:	[2014] VSC 391

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REAL PROPERTY – Appeal from Victorian Civil and Administrative Tribunal – Co-owned property – Application for sale of property – Adjustment to interests of parties by Tribunal according to contributions to purchase price and mortgage repayments – Whether Part IV of Property Law Act 1958 (Vic) as amended by Property (Co-Ownership) Act 2005 (Vic) applies to property acquired before commencement of amending Act – Whether error of law in adjusting parties’ respective interests in property.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr F Lim	Francis Lim
For the Defendant	Mr A Coote	Forbes Dowling Lawyers

HIS HONOUR:

The plaintiff appeals, by leave, from orders made by a Senior Member of the Victorian Civil and Administrative Tribunal (“the Tribunal”) on 8 March 2013. By those orders, the Senior Member directed, pursuant to s 233 of the Property Law Act 1958 (Vic) (“the Act”), that there be an adjustment of the rights of the plaintiff and the defendant as tenants in common in a property jointly owned by them at 63 Regent Avenue, Springvale (“the property”). The Senior Member also ordered that the property be sold by public auction.

Background

In 1993, the plaintiff met, and became friends with, the wife of the defendant. In 1995, the plaintiff and the defendant jointly purchased the property. On settlement, they were registered as the proprietors as tenants in common in equal shares of an estate in fee simple in the property. The plaintiff lived with the defendant and his family at the property until October 2010, when the property was vacated by the plaintiff. Shortly afterwards, it was also vacated by the defendant and his family. Subsequently, the plaintiff rented the property to tenants, and received the rental paid by them.

In the proceeding in the Tribunal, the plaintiff, and the defendant by a cross-claim, each sought an order that the property be sold and that the proceeds of sale be divided. The issue before the Tribunal concerned what adjustment (if any) should be made to their respective interests in the property pursuant to s 233 of the Act.

By his decision, the Senior Member ordered, pursuant to s 233, that the respective rights of the plaintiff and the defendant in the property be adjusted, so that the interest of the plaintiff should be 16.55 per cent and the interest of the defendant should be 83.45 per cent. The Senior Member made consequential directions to give effect to that order. In addition, as sought by both parties, he made orders, pursuant to s 228 of the Act, for the sale of the property by public auction.

The Senior Member’s…

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 Tien v Pho

Details

AGLC: Tien v Pho [2014] VSC 391
Case: [2014] VSC 391
Decision Date: 21 August 2014

CaseChat Overview and Summary

The matter of Tien v Pho involved the dispute over the sale of a co-owned property. The parties, Tien and Pho, had originally applied to the Victorian Civil and Administrative Tribunal (VCAT) for an order to sell their jointly owned property. The Tribunal granted the application and adjusted the interests of the parties according to their respective contributions to the purchase price and mortgage repayments. The decision was appealed by Tien to the Supreme Court of Victoria. The central legal issues before the court were whether Part IV of the Property Law Act 1958 (Vic), as amended by the Property (Co-Ownership) Act 2005 (Vic), applied to the property in question, which had been acquired before the commencement of the amending Act, and whether there was an error of law in the Tribunal's adjustment of the parties' respective interests in the property. The court considered the legislative history and the plain language of the amending Act, concluding that the provisions of Part IV applied to the property in question, regardless of the date of acquisition. The court further found no error of law in the Tribunal's adjustment of the parties' interests based on their respective contributions. The appeal was dismissed, and the decision of the Tribunal was upheld. The court's decision affirmed the authority of the Tribunal to adjust co-owners' interests in property according to their respective contributions and confirmed the applicability of the amended legislation to all co-owned properties in Victoria, regardless of the date of acquisition.

Orders