JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9-10, 13 FEBRUARY 2012
DATE OF JUDGMENT:	10 MAY 2012
CASE MAY BE CITED AS:	ZHOU v KOUSAL
MEDIUM NEUTRAL CITATION:	[2012] VSC 187

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EQUITY – Unconscionable advantage taken of another alleged – Application in equity to set aside sale – Compulsory sale by Sheriff not place owner under a special disability – Sale not set aside in equity – Special disability for the purposes of the equitable doctrine considered.

EXECUTION – Sale of property conducted by Sheriff under Division 5 of the Sheriff Act 2009 (Vic) – Former common law writs considered (fieri facias and venditioni exponas) – Duties of Sheriff under common law writ of fi fa – Duties of Sheriff compulsorily selling property under Division 5 of the Sheriff Act 2009 (Vic) – Whether Supreme Court has inherent jurisdiction to set aside sale conducted by Sheriff in breach of duties under the Sheriff Act 2009 (Vic) – Order made under r 66.15 Supreme Court (General Civil Procedure) Rules2005 (Vic) considered – Sale by sheriff set aside.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.J. Hayes Mr J.P. Snow	Austin Haworths & Lexon Legal (Melbourne)
For the First Defendant	Mr D.C. Harrison	Hutchinson Legal
For the Second Defendant	Mr A.T. Strahan	Victorian Government Solicitor
For the Third Defendant	No Appearance
For the Fourth Defendant	No Appearance

HIS HONOUR:

Summary of Relevant Facts and Relief Sought

This action arises out of the purported sale of real estate by an auction conducted by the Second Defendant (“the Sheriff”) on 16 December 2010 (the “second auction”) pursuant to the Sheriff Act 2009 (the “Sheriff Act”).

The Plaintiff, Mr Zhiping Zhou (“Zhou”), is the registered proprietor of a property situated at 2 Wirraway Avenue, Braybrook (Certificate of Title Volume 10728 Folio 853) (the “Property”). He was born in Shanghai China on 16 February 1962. He immigrated to Australia in 1989 on a student visa following the 4 June 1989 uprising in Tiananmen Square in Beijing. He obtained permanent residency in Australia in 1993 and became an Australian citizen in 1998.

In Shanghai, Zhou completed his studies at the Shanghai Mechanic Engineering University where he graduated with a Bachelor’s Degree in mechanical engineering. Since graduation and immigrating to Australia, he has worked principally in the area of building and construction.

Zhou built a house on the Property himself, as the owner builder. Following completion of construction a Certificate of Occupancy was issued on 21 March 2006. The house is built of brick and has five bedrooms, and is a good house.

A warrant of seizure and sale No. AH030962M dated 9…

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 Zhou v Kousal

Details

AGLC: Zhou v Kousal [2012] VSC 187
Case: [2012] VSC 187
Decision Date: 10 MAY 2012

CaseChat Overview and Summary

In Zhou v Kousal, the applicant, Mr Zhou, sought to set aside a compulsory sale of his property conducted by the Sheriff. The dispute arose from the execution of a judgment against Mr Zhou, leading to the sale of his property under the Sheriff Act 2009 (Vic). The court was tasked with determining whether the sale could be set aside due to an alleged unconscionable advantage taken by the purchaser, Mr Kousal, and whether the Supreme Court has the inherent jurisdiction to set aside a sale conducted by the Sheriff in breach of the Sheriff Act 2009 (Vic).

The legal issues before the court included whether the sale by the Sheriff could be set aside due to an unconscionable advantage taken by the purchaser, and whether the Supreme Court has inherent jurisdiction to set aside a sale conducted by the Sheriff in breach of the Sheriff Act 2009 (Vic). The court needed to consider the duties of the Sheriff under the Sheriff Act 2009 (Vic) and the common law writs, specifically fieri facias and venditioni exponas, to determine if the sale complied with these duties. Additionally, the court had to assess whether the sale constituted a special disability under the equitable doctrine that would warrant setting it aside.

The court found that the sale by the Sheriff was not set aside because Mr Zhou did not demonstrate a special disability, which is necessary for the application of the equitable doctrine. The court also held that the Supreme Court does not have inherent jurisdiction to set aside a sale conducted by the Sheriff in breach of the Sheriff Act 2009 (Vic). The court emphasised that while the Sheriff has a duty to conduct the sale fairly and in accordance with the law, the existence of an unconscionable advantage alone was insufficient to warrant setting aside the sale. Consequently, the application to set aside the sale was dismissed.

No further orders were made by the court. The decision underscores the limited scope of equitable relief in cases involving compulsory sales conducted by the Sheriff, and the importance of strict compliance with statutory and common law duties in such proceedings.

Orders