Kim & 1 or v Kim [2006] NSWSC 472

New South Wales Supreme Court

CITATION : Kim & 1 or v Kim [2006] NSWSC 472

HEARING DATE(S) : 14 September 2006 JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 09/14/2006

DECISION : Order for sale made upon undertaking of first plaintiff to exonerate other parties.

CATCHWORDS : REAL PROPERTY – Co-ownership – Sale – where property subject to mortgages – where moneys secured used by first plaintiff for his own separate benefit - exoneration

LEGISLATION CITED : Conveyancing Act 1919 (NSW), s 66G Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

CASES CITED : Re Wakim; Ex parte McNally (1999) 198 CLR 511 Young v Lalic [2006] NSWSC 18

Sung Soo Kim (first plaintiff) PARTIES : Jae Koo Kim (second plaintiff) Yong O Kim (defendant)

FILE NUMBER(S) : SC 4155/06

COUNSEL : Mr J Fisicaro (sol) (plaintiffs)

SOLICITORS : John Fisicaro & Co (plaintiffs)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

BRERETON J

Thursday 14 September 2006

4155/06 Sung Soo Kim & 1 Or v Yong O Kim JUDGMENT (Ex tempore) 1 HIS HONOUR: The plaintiffs are mother and son. They seek orders under Conveyancing Act 1919 (NSW), s 66G for the sale of a property at 11 Farnham Avenue, Roselands of which they and the defendant, who is the first plaintiff's father and the second plaintiff's estranged husband, are the registered proprietors. The title is held by the first plaintiff Sung Soo Kim, as to a one quarter share as tenant-in-common with the defendant Yong O Kim, the second plaintiff Jae Koo Kim and the first plaintiff Sung Soo Kim as joint tenants as to a three quarter share. 2 An affidavit of Joseph Khoury sworn 23 August 2006 proves service of the summons and affidavits on the defendant on 18 August 2006. There was no appearance on behalf of the defendant today. Mr Fisicaro, who appears for the plaintiffs, informs me that last night he had a telephone conversation with the defendant, who said that he would not be coming to Court today.