Leung & Anor v Good Friend Development Pty Ltd & Ors [2007] NSWSC 713

New South Wales Supreme Court

CITATION : Leung & Anor v Good Friend Development Pty Ltd & Ors [2007] NSWSC 713

HEARING DATE(S) : 26 June 2007

JUDGMENT DATE : 26 June 2007

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 26 June 2007

DECISION : Injunction refused.

CATCHWORDS : INTERLOCUTORY INJUNCTION – Whether evidence demonstrates serious question to be tried.

Pin Ko Leung – First Plaintiff Fook Cheung Leung – Second Plaintiff PARTIES : Good Friend Development Pty Ltd – First Defendant Kim Hung Kwong (aka Sherman Kwong) – Second Defendant Sandy Kwong (aka Wai Kwan Ng) – Third Defendant Belinda Wong (aka Yuk Ling Belinda Wong) – Fourth Defendant

FILE NUMBER(S) : SC 2906/07

COUNSEL : Ms. T.A. Iskra (Sol) – Plaintiffs C. Moschoudis – Defendants

SOLICITORS : Harris Freidman Hyde Page – Plaintiffs Ren Zhou Lawyers – Defendants

2906/07 Pin Ko Leung & Anor v Good Friend Development Pty Ltd & Ors

JUDGMENT – Ex tempore 26 June, 2007

1 On 1 June 2007, Brereton J made orders by consent restraining the Third and Fourth Defendants from dealing with a property at Bexley until further order. The matter has come back into the Duty List today because the Defendants wish to have that interim injunction dissolved. 2 Very briefly, the question which has been agitated is whether or not the Plaintiffs have demonstrated a prima facie case or serious question to be tried in support of their contention that they have some proprietary interest in the subject property, whether by way of security or constructive trust or otherwise. 3 Ms Iskra, solicitor, has appeared on behalf of the Plaintiffs and has directed me to the evidence in support of the Plaintiffs' contention that they have some form of interest in the subject property which requires protection pending resolution of the disputes between the parties. Ms Iskra points to paragraph 52 of the First Plaintiff's affidavit of 29 May 2007 as supporting the interest claimed by the Plaintiffs in the subject property. 4 However, on a reading of that evidence, it seems to me that it goes no higher than alleging an agreement between the parties whereby the Plaintiffs would lend a sum of money to the Defendants at interest on the understanding that the Defendants would use that money to develop the subject property and that, when the property was completed, out of the profits of that property the Plaintiffs would receive the repayment of the loan and a further consideration of a sum of $60,000. 5 As the evidence presently stands, there does not appear to be any common intention or understanding between the parties, let alone an explicit agreement, that the Plaintiffs were to have any secured interest or other equitable interest in the subject property. The mere fact that the Plaintiffs lend money to the Defendants so that the Defendants may use that money for the improvement of a property for profit does not, of itself, give the Plaintiffs an equitable interest in the property upon which the loan money has been expended. 6 I am unable to be satisfied that the Plaintiffs have demonstrated a serious question to be tried that they have any interest in the property such as would support the continuation of injunctions restraining the Defendants from dealing with it or dealing with the proceeds of sale. 7 Miss Iskra does not submit that there is other evidence to demonstrate a real likelihood that the Defendants will, unless restrained, dispose of the proceeds of sale of the subject property or of other assets in such a way as to defeat the Plaintiffs in recovering a judgment on the claimed debt if the Plaintiffs succeed in obtaining judgment. 8 Accordingly, I cannot see any basis for continuing the injunctions as freezing orders to protect the Plaintiffs' possible fruits of judgment. 9 For those reasons, the orders restraining the Third and Fourth Defendants made on 1 June 2007 by consent are now dissolved. 10 I will also dissolve the order in paragraph 3 of orders made on 1 June 2007. I should add, of course, that the orders which I now make are made in the state of the evidence as it presently is and nothing that I have said today precludes the Plaintiffs from making any further application to the Court to protect their position, if so advised on other evidence. 11 I order the Plaintiffs to pay the Defendants' costs of today. – oOo –