Kim Than Ty v Kim Eng Lo [1999] NSWSC 712

New South Wales Supreme Court CITATION : Kim Than Ty v Kim Eng Lo [1999] NSWSC 712 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 2732 of 1999 HEARING DATE(S) : 6 July 1999 JUDGMENT DATE : 6 July 1999

Kim Than Ty (First Plaintiff) PARTIES : Taing Kaing Ty (Second Plaintiff) Kim Eng Lo (Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : R. Tregenza (Defendant) SOLICITORS : W. Chan & Co (First and Second Plaintiff) Watson Stafford (Defendant) CATCHWORDS : CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - Caveats - extension of caveat - Plaintiff claims lien over property - purchase money not paid to vendor - money misappropriated by solicitor DECISION :

- 2 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

TUESDAY 6 JULY 1999

2732/99 KIM THAN TY & ANOR v KIM ENG LO

JUDGMENT

1 HIS HONOUR: In this matter the plaintiff seeks an order that caveat 3905007 be extended. The basis of that claim, although it is not in any way articulated clearly in the caveat, is apparently that the plaintiffs assert that they have a lien over the subject property because the purchase moneys owing to them by the new registered proprietors have not been paid. 2 It seems from the limited evidence available that the plaintiffs, as registered proprietors of property 123 Hughes Street, Cabramatta, instructed a solicitor, Mr Lim, to act for them on the sale of that property to a Mr Kim Eng Lo. The contract is not in evidence, although it is said to have been dated 22 December 1997, the consideration being $170,000. Mr. Lim apparently acted for the purchaser as well. 3 The evidence is that Mrs Ty, one of the plaintiffs, has not received that money and I accept that her husband, the other vendor, has not received any money either. The transfer document seems to be undated but, as is normal in these matters, acknowledges the receipt of the consideration of $170,000. 4 The purchaser's husband says that the purchase moneys were provided to Mr Lim as to $80,000 by advance from St George Bank Limited and as to $100,000 in cash. Mr Lim says that $90,000 was provided in cash and $80,000 by mortgage and that "as a direct result of the payment of the total settlement moneys I arranged for the transfer of the property to the name of Kim Eng Lo". He also states a receiver has been appointed to his practice and his files are held by that receiver, Miss Jean Sayer. 5 It is I think clear enough, at least on the evidence before me, that the Court can take the view that at least at this stage that moneys have been misappropriated. The only question is from whom they have been misappropriated, namely, whether they have been misappropriated from the vendor or from the purchaser. 6 On the evidence as it stands at the moment, it seems far more likely that they have been misappropriated from the vendor, in other words, the solicitor at the time of failure to pay those moneys held them on behalf of the vendor not the purchaser. 7 That is supported by the action that has been taken by the plaintiff in the District Court of New South Wales claiming the moneys from the solicitor and not claiming the moneys from the purchaser. I should add that it might possibly be shown to have been otherwise had the documents held by the receiver been before the Court, but, in the absence of any of those documents, I am unable to say that the plaintiffs have an interest in the property, or may have an interest in the property, and in those circumstances the summons should be dismissed with costs and I so order.