18 Woodville Holding Pty Ltd v Hua Cheng International Holdings Group Pty Ltd (in liq) (No 2) [2022] NSWSC 947

Supreme Court New South Wales

Medium Neutral Citation: 18 Woodville Holding Pty Ltd v Hua Cheng International Holdings Group Pty Ltd (in liq) (No 2) [2022] NSWSC 947 Hearing dates: 27 to 30 June 2022 Decision date: 19 July 2022 Jurisdiction: Equity - Commercial List Before: Ball J Decision: (1) Order that the first, second and third defendants immediately give the plaintiff possession of units A702 and A703, 18 Woodville Street Hurstville NSW 2220 being lots 44 and 45 respectively in SP94237; (2) Leave be granted to have a Writ for Possession issued in favour of the plaintiff should the first, second and third defendants fail to comply with order (1); (3) Order that the first, fourth and fifth defendants immediately give the plaintiff possession of unit A801,18 Woodville Street Hurstville NSW 2220 being lot 48 in SP94237; (4) Leave be granted to have a Writ for Possession issued in favour of the plaintiff should the first, fourth and fifth defendants fail to comply with order (3); (5) Orders (1) to (4) be stayed for a period of 28 days from the date of this judgment; (6) Order that the cross claims filed by the second and third and fourth and fifth defendants be dismissed; (7) Subject to order (8), order that the second to fifth defendants pay the plaintiff's costs of the proceedings; (8) Grant liberty to any party to apply within 14 days of the date of this judgment to vary order (7). Catchwords: LAND LAW — Torrens title — Exceptions to indefeasibility — Unregistered tenancy — Whether s 42(1)(d) of the Real Property Act 1900 (NSW) protects the interest of a tenant in possession under an unregistered tenancy exceeding three years — Whether registered interest of mortgagee prevails over unregistered interests of tenants in possession LAND LAW — Torrens title — Exceptions to indefeasibility — Fraud — Whether taking an assignment of mortgage with alleged knowledge of a tenant's unregistered interest but refusing to be bound constitutes statutory fraud LAND LAW — Torrens title — Unregistered interests — Existence of unregistered interests — Whether second to fifth defendants have an equitable interest commensurate with the availability of specific performance where purchase price has been paid Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law Conveyancing Act 1919 (NSW) Conveyancing (Amendment) Act 1930 (NSW) Corporations Act 2001 (Cth) Real Property Act 1900 (NSW) Transfer of Land Act 1928 (Vic) Transfer of Land Act 1958 (Vic) Cases Cited: Assets Co Ltd v Mere Roihi [1905] AC 176 Australian Securities and Investments Commission v Money for Living (Aust) Pty Ltd (administrators appointed) (No 2) (2006) 155 FCR 349; [2006] FCA 1285 Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16 Barlin Investments Pty Ltd v Westpac Banking Corporation (2012) 16 BPR 30,671; [2012] NSWSC 699 Burke v Dawes (1938) 59 CLR 1; [1938] HCA 6 Butler v Fairclough (1917) 23 CLR 78; [1917] HCA 9 Commercial Bank of Australia Ltd v McCaskill (1897) 23 VLR 10 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Forder v Cemcorp Pty Ltd (2001) 51 NSWLR 486; [2001] NSWSC 281 Huang v Hua Cheng International Group Pty Ltd [2019] NSWCA 155 Koorootang Nominees Pty Ltd v Australia and New Zealand Banking Group Ltd [1998] 3 VR 16 Measures v McFadyen (1910) 11 CLR 723; [1910] HCA 74 Ong v Luong (1991) 9 BPR 16,759 Oversea Chinese Banking Corporation (OCBC) v Malaysian Kuwait Investment Co Sdn Bhd (MKIC) [2003] VSC 495 Perpetual Trustee Co Ltd v Smith (2010) 186 FCR 566; [2010] FCAFC 91 PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 Robertson v Keith (1870) 1 VR (E) 11 Schultz v Corwill Properties Pty Ltd [1969] 2 NSWR 576 Sidoti v Hardy (2021) 105 NSWLR 1; [2021] NSWCA 105 The Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd (2007) 64 ACSR 31; [2007] NSWSC 676 Wilkes v Spooner [1911] 2 KB 473 Young v Hoger (2001) Q Conv R 54-548; [2000] QSC 455 Texts Cited: Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Lawbook Co) New South Wales, Legislative Council, Parliamentary Debates (Hansard), 13 May 1930 Category: Principal judgment Parties: 18 Woodville Holding Pty Ltd (Plaintiff) Hua Cheng International Holdings Group Pty Ltd (First Defendant) Xiuzhen Huang (Second Defendant) Reynold Zhou (Third Defendant) Zhe Tao (Fourth Defendant) Jianmin Tao (Fifth Defendant) Representation: Counsel: JP Knackstredt with AF Girgis (Plaintiff) L Chan with A Lim (Second and Third Defendants) MK Condon SC with L Chan (Fourth and Fifth Defendants)