Yu, Ping v Yu, Xia
[2010] VSC 519
•29 November 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 9375 of 2009
| YU, PING & ORS | Plaintiff |
| v | |
| YU, XIA & ORS | Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2010 | |
DATE OF RULING: | 29 November 2010 | |
CASE MAY BE CITED AS: | Yu, Ping & Ors v Yu, Xia & Ors | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 519 | |
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PRACTICE AND PROCEDURE – Application to continue interlocutory injunction pending trial – Injunction granting possession of property to second plaintiff – Injunction to restrain first and second defendants from entering or having possession of property or changing locks to property – Dispute over moneys held on trust – Serious question to be tried – Balance of convenience – Damages inadequate remedy – Course carrying lower risk of injustice – Injunction granted - Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Moller | Norton Rose |
| For the First Defendant | Xia Yu | In person |
| For the Second Defendant | Xiao Ping Jiang | In person |
| For the Third Defendant | Lusi Jiang | In person |
HIS HONOUR:
This application concerns an interlocutory injunction in relation to 7 Eagle Nest Way, Point Cook. The injunction was granted on 28 September 2010 and has since been extended up until today. The effect of the injunction is to:
(a) give the second plaintiff possession of the property; and
(b) restrain the first and second defendants from:
(i) entering the property, or
(ii) preventing the second plaintiff from entering or having possession of it, or
(iii) changing the locks to the property.
The applicant plaintiffs seek the continuation of the injunction and associated orders until trial of the proceeding or further order.
Affidavits have been filed in support of the application sworn by the second plaintiff and the plaintiffs’ solicitor, and the plaintiffs also rely on earlier affidavits sworn in support of freezing order applications and in particular an order which was obtained in October 2009.
The defendants rely on an affidavit of the first defendant sworn 29 November 2010 and they have also tendered to me various documents relating to outgoings in respect of the property.
The first plaintiff is a businesswoman resident in China. She is the sister of the first defendant. The second plaintiff is the first plaintiff's son. The second defendant is the first defendant's husband and the third defendant is the daughter of the first and second defendants.
The defendants live at 1 Eagle Nest Way, Point Cook, which is close to the property which is in dispute.
The plaintiffs' case is that the first plaintiff purchased 7 Eagle Nest Way in order that the second plaintiff would have a place of residence in Australia where he is a postgraduate student. The first plaintiff says that she supplied funds to her sister, the first defendant, in order to effect this transaction.
The defendants say that the first defendant is the registered proprietor of 7 Eagle Nest Way, Point Cook, and that it was purchased with funds which were returned to her following transactions which had been carried out on her behalf in China.
In addition to the dispute over the property at 7 Eagle Nest Way, there is a dispute over moneys which the first plaintiff maintains are held on trust for her by her sister, the first defendant. She claims a substantial sum is due to her. and there is some $1.7 million said to be unaccounted for.
A series of freezing orders have been made by this Court in respect of moneys held by the first defendant.
On 28 September of this year the defendants forcibly entered 7 Eagle Nest Way, Point Cook, and changed the locks. The events are described in the affidavits of Ms Hishon and Mr Sun sworn on 30 September 2010. While Mr Sun was at a meeting with Ms Hishon in her firm's offices in the city, he received a telephone call from a friend who was at the property. The friend advised that he could not get into the property because the locks had been changed and that the first defendant was inside. Ms Hishon telephoned the first defendant who confirmed that she had entered the property, changed the locks and would not be allowing anyone in. Ms Hishon warned her about taking matters into her own hands.
Ms Hishon then arranged an urgent hearing in this Court.
Orders were obtained from the Court for recovery of possession and Ms Hishon and Mr Sun then went out to the property initially accompanied by the police. They attended first at the defendants’ property at 1 Eagle Nest Way, Point Cook. There they met the third defendant who informed them that her mother, the first defendant, was not at home. Then Ms Hishon and the police officers went to the property now in issue, number 7 Eagle Nest Way. Ms Hishon was not able to see any movement in the property and the police officers left. Immediately after the police car drove away, the front lights of the property were turned on and through the front door, Ms Hishon could see the first and second defendants inside. Ms Hishon then served the Court's order and after about 30 minutes the first and second defendants left the property.
Mr Sun inspected the property. He observed that items in his study had been disturbed including his desktop and laptop computers and a folder relating to this proceeding which contained advice and correspondence from his solicitors. He also discovered that the recorder which records footage for the external security cameras installed at the property had been disconnected and was missing. Later, the second defendant knocked at the door and returned the recorder to Ms Hishon. The next day Mr Sun reconnected the recorder and viewed the footage. It showed that he left the property at about 2:20 pm. At about 3:18 pm a person driving a locksmith's van attended the property and was joined by the first and second defendants and together they opened the lock on the front door.
In order to succeed on the present application, the plaintiffs must first demonstrate that there is a serious question to be tried. They must, in effect, prove that there is sufficient likelihood of success to justify the preservation of the status quo pending the trial. Further, the balance of convenience must favour the granting of an injunction. The Court must also be satisfied that damages will not prove an adequate remedy and the Court must consider which course appears to carry the lower risk of injustice if it should turn out to be wrong in the sense of granting an injunction to a party who fails to establish his right at the trial or in failing to grant an injunction, to a party who succeeds at trial.[1]
[1] Bradto Pty Ltd v State of Victoria (2006) 15 VR 65; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65, [35].
In the present case I am satisfied that there is a serious question to be tried. The material which has previously been held to justify the granting of a freezing order shows that to be so. In relation to the present application, the first defendant's material simply states:
It is not relevant for current purposes to go tine the details of how these purchases were organised and financed but in short I purchased 7 Eagle Nest Way with my exclusive right and I purchased 1 Eagle Nest Way with my husband. They were predominantly financed by investment loans from Westpac and (joint loans) from One Direct Home Loan of ANZ.
The first defendant has discovered no documents concerning her entitlement to the property, including documents relating to the manner in which she paid for it. In an affidavit sworn on 24 August 2010, she states that her personal liabilities are personal loan owing to Juan Li, $53,000, and daughter's unpaid school fees $10,626. In respect of the property, 7 Eagle Nest Way, Point Cook, she describes this as an asset having a value of $595,000 (purchase price paid).
In contrast, 1 Eagle Nest Way is described as being subject to a mortgage. It appears that 7 Eagle Nest Way has been entirely paid for and the fundamental matter in dispute between the parties seems to be the question of who paid for it. The current state of the evidence demonstrates that the first plaintiff has a seriously arguable case in this regard.
I turn then to the question of the balance of convenience. The case is, at heart, a relatively simple family dispute and should be capable of being heard in this Court relatively expeditiously. In essence, the plaintiffs simply seek the preservation of the status quo until that is able to occur.
In addition to claiming a right to preserve the status quo, they point to the fact that the second plaintiff has lived in the property since it was purchased off the plan. They assert that other than his parents, who have stayed with him during visits from China, no one else has lived there. There appears to be some dispute on the basis of what the defendants say to me today with respect to this but nevertheless it seems to me that this factor also favours the preservation of the status quo. It has been an element of the plaintiffs' case since the inception of the proceedings that the purpose of the purchase of the house was to accommodate the second plaintiff.
Next, it is apparent that if no injunction is granted, the defendants are likely to seek to enter the premises. They have already done so on more than one occasion and it is apparent that this is inherently unsatisfactory and likely to produce ongoing friction between the parties.
Having regard to the circumstance as a whole, I am also satisfied that this is not a case in which, on the face of it, damages would be an adequate remedy, more particularly the plaintiffs would lose personal occupation of the premises.
Conversely, I am satisfied that the usual undertaking as to damages does offer the defendants security with respect to the property which they say they have a right to. The defendants maintain that they are foregoing rental income. The freezing orders which have been made in this Court each require the second plaintiff to maintain a particular bank account at a level of credit above $100,000. On the face of it this is sufficient to give the defendant security in respect of the order of damages which is in issue. If there were serious doubts as to this as time passes, then it is open to the defendants to seek an increase in the amount of security that is provided.
The defendants also raised a series of other matters. They first complain that they have been paying outgoings in respect of the property. The evidence in relation to this however, is quite unsatisfactory. The plaintiffs maintain that they have been paying the outgoings including water, gas, telephone expenses, and insurance. They have also today made an open offer to pay the rates if the rate assessments are passed to them by the defendants. Once again, if there were a refusal on the part of the plaintiffs to pay reasonable outgoings with respect to the property which they say they own, then it would be open for the defendants to come back to Court. There is no satisfactory evidence that they have refused to do so to date.
At one point the defendants also seemed to be maintaining that they were paying a mortgage with respect to the property. That assertion does not sit comfortably with the affidavits they have sworn in this proceeding and in particular the affidavit of the first defendant of 24 August 2010 which, as I have said, quite clearly describes 7 Eagle Nest Way as an asset of the first defendant which is not subject to any mortgage liability. Further, as I have said, there is no documentary evidence of the mortgage debt.
The defendants also maintain that if they are not given possession of the property, the plaintiffs will continue to spy on them and will continue violent activity towards them. I do not accept that the affidavit material filed in this proceeding establishes any likelihood of this at all but if it were to occur, then that is a matter which is capable of being addressed in other proceedings.
Lastly, it was submitted by the second defendant that the plaintiffs propose to burn down 7 Eagle Nest Way. There is no credible evidence in this respect and the whole history of the matter tends to support the view that rather than burning it down, the plaintiffs' desire is that the second plaintiff should be permitted to continue to occupy the property.
Accordingly, I am minded to make the orders which are sought on behalf of the plaintiffs but in the course of discussion with counsel for the plaintiffs, I have expressed the strong view that a trial of this matter should be expedited and it seems to me that it is most undesirable that this matter continue to be a running sore between family members.
Under the heading ‘Other matters’ in the proposed order I will include the usual undertaking as to damages which Mr Moller has offered on behalf of the plaintiffs. Secondly, I will record the plaintiffs by their counsel offering to pay the municipal rates with respect to the property. Thirdly, I will insert what is currently drafted as appearing immediately above my signature, namely the reference to r 60.02(2).
Having made those changes I will order that until the hearing and determination of this proceeding or further order, the second plaintiff have and remain in possession of the property situated at 7 Eagle Nest Way, Point Cook, Victoria. Next, until the hearing and determination of this proceeding or further order, the first and second defendants be restrained from entering the property, preventing the second plaintiff from entering or having possession of the property and changing the locks to the property and, thirdly, I will order that the first and second defendants pay the second plaintiff's costs of and incidental to the oral application made on 28 September 2010 and adjournment thereof.
(Submission re phrasing of the order)
I will add, including the costs of today. The costs should follow the event in the circumstances that have occurred.
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