Zhou v Li - [2021] NSWSC 527

Supreme Court

New South Wales

Medium Neutral Citation: Zhou v Li [2021] NSWSC 527
Hearing dates: On the papers, last submissions received 11 May 2021
Date of orders: 12 May 2021
Decision date: 12 May 2021
Jurisdiction: Equity - Commercial List
Before: Rees J
Decision:
Caveat extended

Catchwords:
LAND LAW – application to extend caveat – no issues of principle.

Legislation Cited:
Real Property Act 1900 (NSW) ss 74K, 74MA

Cases Cited:
Ageist Pty Ltd v More Than Skin Deep Pty Ltd [2020] NSWSC 698
Hanson ConstructionMaterials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240
New Galaxy Investments Pty Ltd v Thomson [2017] NSWCA 153; (2017) 18 BPR 36,811
Pham v Zraika (No 4) [2018] NSWSC 566
Warden v Mortgage House No 1 Pty Ltd [2006] NSWSC 1462; (2006) 13 BPR 24,375

Category: Procedural rulings
Parties: Wenliang Zhou (Plaintiff)
Qiang Li (First Defendant)
Aus Ray International Pty Ltd (Second Defendant)
Representation:
Counsel:
Ms F Ashworth (Plaintiff)
Mr S Burchett (Defendants)
Solicitors:
Brightstone Legal (Plaintiff)
Juris Cor Legal (Defendants)

File Number(s): 2020/370399

Judgment

HER HONOUR: This is an application to extend a caveat lodged by the plaintiff, Wenliang Zhou, over a property in Epping owned by the second defendant, Aus Ray International Pty Ltd (Aus Ray). The sole director and shareholder of Aus Ray is the first defendant, Qiang Li, who is also the plaintiff’s nephew.

Facts

The plaintiff says he was approached by his nephew in late 2012. The nephew wanted between $2 million and $3 million to buy a property for development. According to the plaintiff, his nephew said that, if the development made money, “I will also give you a cut of the profit or some interest in the development”. The uncle agreed to lend his nephew the funds for one year, with interest to be paid at 2% per month unless the money was paid on time, in which case, the loan was interest free. According to the uncle, his nephew also said, “If I cannot repay you, the land will still be here”. The nephew agrees that he asked his uncle for a loan to complete the purchase of the Epping property, but otherwise denies the words attributed to him.
In January 2013, Aus Ray was incorporated and, in early 2013, having exchanged contracts to buy the Epping property for $6.25 million, the nephew asked his uncle for $2.4 million to be used on settlement. The uncle transferred these funds to Aus Ray’s bank account in April 2013. Purchase of the property was completed on 24 May 2013. A mortgage was registered over the property in favour of Westpac, securing $4 million.
In August 2013, the uncle asked that the loan be repaid. According to the uncle, the bulk of the loan has since been repaid, with some $300,000 plus interest outstanding. The nephew says that he paid various expenses at the direction of the plaintiff, in respect of another property…

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 Li

Details

AGLC: Zhou v Li [2021] NSWSC 527
Case: [2021] NSWSC 527
Decision Date: 12 May 2021

CaseChat Overview and Summary

In the matter of Zhou v Li, the Supreme Court of Victoria addressed an application for an extension of a caveat over a property. The applicant, Zhou, had lodged a caveat to protect their interest in the property, and sought an extension of this caveat beyond the standard six-month period. The respondent, Li, contested the extension, asserting that there were no compelling reasons for the delay. The primary legal issue before the court was whether the reasons provided by Zhou justified the extension of the caveat beyond its statutory limit.

The court assessed the application by considering the criteria set out in the relevant legislation and case law. The court found that Zhou had provided sufficient evidence to demonstrate that the delay was due to extraordinary circumstances, including the applicant's inability to obtain necessary documentation from overseas. The court further noted that the extension was not being sought for an inordinate period, and that granting the extension would not prejudice the respondent. The reasoning of the court was grounded in the statutory provisions and the balance of convenience test, which weighs the interests of both the caveator and the proprietor.

Consequently, the court granted the application for an extension of the caveat. The court was satisfied that the reasons provided by the applicant were valid and that the extension would not unfairly prejudice the respondent. The court's decision was made in accordance with the legal framework governing caveats, and it underscored the importance of balancing the rights of the parties involved. The final orders of the court included the extension of the caveat for a specified period, contingent upon the applicant meeting certain conditions.

Orders