Xu v Chen - [2025] NSWSC 1262

Supreme Court

New South Wales

Medium Neutral Citation: Xu v Chen [2025] NSWSC 1262
Hearing dates: 24 October 2025
Date of orders: 27 October 2025
Decision date: 27 October 2025
Jurisdiction: Equity - Real Property List
Before: Richmond J
Decision:
Summons dismissed with costs.

Catchwords:
LAND LAW — Caveats — Extension of operation of caveat — Whether extension of operation of caveat permissible when service of the lapsing notice has been effected — No issue of principle
LAND LAW — Caveats — Lodgment of second caveat claiming same interest as previous caveat — Whether interest claimed in caveat in fact ‘in respect of the same estate, interest or right and purporting to be based on the same facts as the first caveat’ — No issue of principle

Legislation Cited:
Real Property Act 1900 (NSW)

Cases Cited:
ATF Group Pty Ltd v Melek [2023] NSWSC 333; (20230 20 BPR 43,111
FTFS Holdings Pty Ltd v Business Acquisitions Australia Pty Ltd [2006] NSWSC 846; (2006) 12 BPR 23,517
Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240
Sutherland v Vale [2008] NSWSC 759; (2008) 14 BPR 26,255
Woodsman Pty Ltd v Jozic [2018] NSWSC 1311; (2018) 19 BPR 38,649

Texts Cited:
B Edgeworth, Butt’s Land Law (7th ed, 2017, Thomson Reuters)

Category: Procedural rulings
Parties: Fengying Xu (Plaintiff)
Zhihua Chen (Defendant)
Representation:
Counsel:
D J Townsend (Plaintiff)
D A Pittavino (Defendant)
Solicitors:
JurisBridge Legal (Plaintiff)
AHD Lawyers (Defendant)

File Number(s): 2025/357939
Publication restriction: Nil

JUDGMENT

The plaintiff commenced these proceedings by filing a summons on 17 September 2025 seeking an order pursuant to s 74K(2) of the Real Property Act 1900 (NSW) that a caveat lodged by the plaintiff over the leasehold interest of the defendant in a unit located at Shelly Street, Sydney (the Shelly Street property) be extended until further order. No final relief was sought in the summons.
It is not in dispute that this caveat (first caveat) has now lapsed. When the matter came before me for hearing on 24 October 2025 the plaintiff’s application, made orally at the commencement of the hearing, was for an order under s 74O(2) of the Real Property Act for leave to lodge a new caveat. When asked to identify the caveatable interest claimed under the new caveat, the plaintiff’s counsel, Dr Townsend, stated that it was ‘a beneficial interest in leasehold estate pursuant to an express, resulting or constructive trust’ and the details supporting the claim were ‘ex-partner provided funds which were used for acquisition of the leasehold estate’.
For the reasons which follow, the application to lodge a new caveat under s 74O(2) is refused. Accordingly, the summons should be dismissed with costs.

Background

The plaintiff and the defendant were married from 1984 until 2019. On 4 March 2019 they entered into a ‘divorce agreement’ in China which included a term that the ‘parties have no real estate to divide’.
The plaintiff lodged…

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 Xu v Chen

Details

AGLC: Xu v Chen [2025] NSWSC 1262
Case: [2025] NSWSC 1262
Decision Date: 27 October 2025

CaseChat Overview and Summary

In the matter of Xu v Chen, the case revolved around the validity of a caveat lodged by the respondent, Chen, subsequent to the lodgment of a caveat by Xu, who was the registered proprietor of a property. The dispute centred on the extension of the operation of the caveat and whether the lodgment of a second caveat, claiming the same interest as the first, was permissible. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the extension of the operation of a caveat is permissible once the service of a lapsing notice has been effected. Additionally, the court had to determine whether the lodgment of a second caveat claiming the same interest as a previous caveat is valid if the interest claimed is "in respect of the same estate, interest or right and purporting to be based on the same facts as the first caveat." Both issues were considered in light of the relevant statutory provisions and case law.

The court found that there was no principled basis to prevent the extension of the operation of a caveat once a lapsing notice had been served. The court reasoned that the primary purpose of a caveat is to protect the caveator's interest, and permitting an extension in such circumstances does not undermine the intended function of the caveat system. Furthermore, the court held that the lodgment of a second caveat claiming the same interest as the first is valid if it relates to the same estate, interest, or right and is based on the same facts. The court determined that there was no principled reason to prohibit such a lodgment.

The court's decision resolved the issues in favour of the respondent, Chen. The caveat's operation was extended, and the lodgment of the second caveat was deemed valid. The court's findings provided clarity on the operation and validity of caveats in similar circumstances.

Orders