Wei Li Qu v Anna Xue Kuang [2007] NSWSC 514

New South Wales Supreme Court

CITATION : Wei Li Qu v Anna Xue Kuang [2007] NSWSC 514

HEARING DATE(S) : 02/05/07

JUDGMENT DATE : 2 May 2007

JURISDICTION : Equity Division

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 2 May 2007

DECISION : See paragraphs 23-25 of judgment.

CATCHWORDS : EQUITY – Equitable remedies – Injunctions – Interlocutory injunctions – Injunctions to preserve status quo and property pending determination of rights – Prima facie cause of action where defendant transferred plaintiff's property by forging memorandum of transfer then mortgaged property – Plaintiff lodged caveat over second property belonging to defendant in which plaintiff had no caveatable interest – Where inference available that defendant proposes to deal with second property so as to frustrate judgment by being unable to satisfy order that she discharge mortgage over first property – Injunction granted restraining defendant from dealing with second property on terms which minimise risk of damage to defendant and third parties.

Wei Li Qu PARTIES : v Anna Xue Kuang

FILE NUMBER(S) : SC 4826/05

COUNSEL : Plaintiff: S Brennan Defendant: R Horsley

SOLICITORS : Plaintiff: Gregory Goold Solicitors Defendant: Paul Marsh Solicitor

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

WHITE J

Wednesday, 2 May 2007

4826/05 Wei Li Qu v Anna Xue Kuang JUDGMENT 1 HIS HONOUR: These proceedings were commenced on 2 September 2005. The plaintiff was, from about 1998, the registered proprietor of land at 82 Woodlands Road, Taren Point. She claims to have been the beneficial owner of the land. That claim is disputed. In her defence, the defendant says that the plaintiff gave the defendant a power of attorney. The defendant is the plaintiff's mother. 2 On or about 28 April 2004, the defendant forged the plaintiff's signature on a memorandum of transfer to herself. It appears from her defence that she will claim that in 2002, the defendant had informed the plaintiff that she would transfer the property to herself after the plaintiff had lived in Australia for two years, and that she will claim there was a conversation in which the plaintiff agreed to that course. The defence also alleges that the defendant frequently used the plaintiff's name, including by signing documents in the plaintiff's name, and did so with the plaintiff's knowledge and consent. 3 Those allegations in the defence are in dispute. The defendant has not chosen to put on any evidence on the present application to rebut the apparent strength of the plaintiff's prima facie case. 4 The plaintiff claims orders for the transfer of the title to the Taren Point property to her. She also complains that in about October 2004, the defendant mortgaged the Taren Point property and raised $800,000 on security of the property. The defendant admits that she did obtain a loan of about $800,000 secured over the property. 5 At some time, the plaintiff lodged a caveat over a property registered jointly in the names of the defendant and a Mr Barry Hancock at 39 Simpson Street, Auburn. I would infer that the caveat was lodged in 2005, and I was told by counsel for the defendant that he did not dispute that inference. However, the plaintiff does not have a caveatable interest in that property. 6 A lapsing notice in relation to that caveat was served on or about 25 January 2007. Following the service of that lapsing notice, the plaintiff, through her solicitors, sought an undertaking from the defendant that the defendant would not deal with the property or her interest in it, and that if she sold the property, the net proceeds of sale would be paid into the defendant's solicitor's trust account, pending the final determination of these proceedings. 7 On 6 February 2007, the defendant's solicitors responded by saying that the lapsing notice was served because the plaintiff had no caveatable interest in the property and that the defendant had no current intention to sell. 8 On 20 February 2007, the plaintiff's solicitors sought an undertaking that they would be notified in writing of any exchange of contract for sale of the defendant's property. That request was not responded to. 9 On 16 April 2007, the plaintiff filed a notice of motion seeking an order that the defendant be restrained from dealing with the property at 39 Simpson Street, Auburn. Interlocutory injunctive relief was granted up until today. When the matter was called on today, the defendant's counsel proffered certain undertakings, but they were not acceptable to the plaintiff because the undertakings were only proffered on the basis that if they were accepted, the defendant would not have any onus in the future of saying that the discharge or variation of the undertaking was warranted. As there was no consensus, I have heard the notice of motion as a contested application. 10 There was no dispute that the plaintiff's evidence established that she has a prima facie cause of action for relief claimed in the statement of claim. In paras 21 to 23 of her affidavit, the plaintiff deposes that: " (21) In around 2004, without my knowledge or permission, the defendant forged my signature on a transfer document and was subsequently granted a title by the Land Titles Office to the Taren Point property in her own name. Her ex-husband, Mr Barry Hancock, signed at the witness section allegedly witnessing the forged signature of mine.