Yisi Ding v Ausino Investment Holdings Pty Ltd

[2017] NSWLEC 1722

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Yisi Ding v Ausino Investment Holdings Pty Ltd [2017] NSWLEC 1722
Hearing dates:	Conciliation conference on 12, 14 December 2017
Date of orders:	15 December 2017
Decision date:	15 December 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	See (4) below
Catchwords:	Water Management Act 2000- conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Yisi Ding (Applicant) Ausino Investment Holdings Pty Ltd(Respondent)
Representation:	Solicitors: Mr S Griffiths, Bartier Perry Lawyers (Applicant) Mr J Chen, Litigant in Person (Respondent)
File Number(s):	2017/364670
Publication restriction:	No

Judgment

1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The Court notes that the parties have reached an agreement at a conciliation conference before Commissioner Dixon on 14 December 2017, conducted pursuant to section 34(3) of the Land and Environment Court Act NSW 1979, being a decision that the Court could have made in the proper exercise of its functions.

2. The appeal is upheld.

3. Pursuant to clause 8 of Part 2 of schedule 1A of the Water Management Act 2000 (NSW), the operation of caveat AM99028 recorded under section 71E of that Act in relation to Water Access Licences WAL28410 and WAL28517 (WAL Caveats) is extended until the date and time of the settlement of the sale of the property at 157-159 Craigmoor Rd, Eurunderee NSW comprised in certificates of title 1/591181 and 2/594499, in accordance with the terms of the agreement reached between the Applicant, the Respondent and Mr Chen at paragraph (5) below.

4. These orders are to be entered forthwith.

5. The Court notes the agreement reached between the Applicant, the Respondent and Mr Chen, as follows:

1. the Respondent will not challenge or seek the lapsing of the caveats with dealing reference AM99021 (together the Land Caveats) over:

1. 157 Craigmoor Rd, Eurunderee NSW 2850 comprised in certificate of title 1/591181 and

2. 159 Craigmoor Rd, Eurunderee NSW 2850 comprised in certificate of title 2/594499,

(together the Land);

2. Mr Rui Yong (John) Chen (Mr Chen) will promptly (but in any event within 30 days of this order) provide to Mr Donato on behalf of Applicant a statutory declaration containing the following information or declarations (Chen Declaration):

1. that annexed to the declaration is a copy of Mr Chen’s most recent personal bank account statement and credit card statements

2. the amount owed by the Respondent to the Commonwealth Bank of Australia (CBA) and which is secured by a first ranking real property mortgage (dealing reference AH623211) over the Land (CBA Mortgage) as at the date of the declaration;

3. that neither the proposed purchasers of each parcel of Land, being respectively:

1. P & A Tan Superannuation Fund ABN 45 596 841 583; and

2. P.A. Tan Family Trust ABN 17 410 696 831

both of Unit 26, 1 Talavera Road Macquarie Park NSW 2113 (each referred to as a Purchaser), and none of their related entities, are directly or indirectly related to Mr Chen; and

4. that the terms each contract of sale for each parcel of Land to a Purchaser represents the entire terms and conditions of the sale of the parcel of Land and that there are no other direct or indirect agreements, arrangements or dealings between Mr Chen and each Purchaser or any other their related entities, unless otherwise expressly disclosed;

3. Mr Chen will as soon as the contracts for the sale and purchase of the Land are prepared, but before they are exchanged, provide to Mr Donato on behalf of the Applicant a complete copy of the proposed contracts of sale (Contracts of Sale) for the sale of the Land to the Purchasers, which if the Applicant has not objected to in writing (detailing the reasons for its objection) within 3 Business Days of receipt of the Contracts of Sale, the Respondent may then only exchange both (but not one only) with the relevant Purchaser provided that the total purchase price for the Land is not less than $1,900,000;

4. on completion of the sale and purchase of the Land pursuant to the Contracts of Sale (which the sale of each parcel of Land must settle contemporaneously):

1. the Respondent will pay to the Applicant by bank cheque 50% of the Net Proceeds, or as the Applicant, or her representative Mr Donato on her behalf, may direct in writing, and

2. provided that Mr Chen has otherwise complied with the terms of these orders and this agreement:

1. the Applicant will provide a withdrawal of the WAL Caveats and the Land Caveats; and

2. the Applicant will provide Mr Chen a deed forbearance, undertaking not to take any action against Mr Chen as guarantor for the debt owed by the Respondent to the Applicant under the document titled ‘Deed of Agreement’ dated 1 November 2014 (Deed of Agreement) between the Applicant, the Respondent and Mr Chen (amongst others); and.

3. nothing in this agreement or these terms, prevents the Applicant from taking any action against Mr Chen or the Respondent for a breach of the terms of this agreement or the terms of this agreement.

Where for the purposes of this agreement,

Business Day means a day in Sydney (not being a Saturday, Sunday or Public holiday) in which approved deposit taking institutions are open for general business; and

Net Proceeds means the proceeds from the sale of the Land under the Contracts of Sale after deducting the amount owed to CBA under the CBA Mortgage and the payment of all reasonable and properly incurred expenses in relation to the sale of the Land.

5. Mr Chen signs these orders and enters into the terms of the agreement as the sole director and company secretary of the Respondent and in his personal capacity and agrees to be bound by them.

6. Each party will bear their own costs associated with this agreement and its implementation.

……………………….

Commissioner Dixon

Amendments

15 December 2017 - Correction made to catchwords on Cover sheet.

Decision last updated: 15 December 2017