New South Wales Supreme Court CITATION : Siu v Li [2009] NSWSC 1330 HEARING DATE(S) : 6 October 2009 JUDGMENT DATE : 6 October 2009 JURISDICTION : Equity JUDGMENT OF : Slattery J at 1 EX TEMPORE JUDGMENT DATE : 6 October 2009 ORDERS: DECISION : 1. Direct the plaintiff to file and serve a statement of claim pleading the nature and extent of his equitable interest in the Armidale property, on or before 9 November 2009. 2. Direct the plaintiff to notify the defendant of today's judgment and orders within 14 days at the address to which the previous correspondence was forwarded. 3. Adjourn these proceedings for further hearing to Thursday 3 December 2009 before the Registrar in Equity. CATCHWORDS : REAL PROPERTY - torrens title - caveats against dealings - sufficient evidence to show plaintiff may have an enforceable equitable charge over the subject property - caveat extended CATEGORY : Principal judgment CASES CITED : Shepherd v Houston [1927] SASR 144 PARTIES : Plaintiff: William Siu Defendant: Riu Fen Li FILE NUMBER(S) : SC 3697/09 COUNSEL : Plaintiff: Mr D Del Monte Defendant: No Appearance SOLICITORS : Plaintiff: Zhang Shijing Lawyers Defendant: No Appearance IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST SLATTERY J TUESDAY 6 OCTOBER 2009 3697/09 WILLIAM SIU v RIU FEN LI JUDGMENT 1 HIS HONOUR: The plaintiff brings these proceedings before the Court today upon the return of certain orders made by Justice McDougall on 15 July 2009. On that occasion his Honour ordered: 1. The operation of caveat number AE 707908 lodged in relation to the land situated at 275 Old Armidale Road Stannifer in the State of New South Wales, lot 45 DP 251304 ("the Armidale Property") be extended until further order of the Court. 2. Liberty to the defendant to set aside or vary that order on 7 days notice is to be reserved. 3. The further hearing of these proceedings be adjourned to Tuesday 6 October 2009 before the Registrar. 2 The plaintiff seeks to extend the subject caveat over the Armidale property. When the matter came before Justice McDougall on 15 July, as his Honour's judgment of that date shows, his Honour was concerned whether or not the available evidence demonstrated a caveatable interest in the Armidale property. Expressing doubts, Justice McDougall extended the caveat. He was partly fortified in doing so by the fact that on that occasion there was some evidence from the defendant that she wished the caveat to be extended. 3 There is no such evidence on this occasion. However the evidence that would justify a caveatable interest in the Armidale property is more substantial now, than it was in July. 4 That evidence is the following: The plaintiff, Mr Siu deposes to a conversation on 20 May 2009 with the defendant, Mr Li and other persons in which the defendant said of the loan moneys advanced by the plaintiff to the defendant (and partly repaid) the following: "I will pay the balance of moneys that I owe to William Siu from the proceeds of sale of the 40 Faulkland Crescent Kings Park property. Furthermore, William Siu can have 50 percent of the interest of 275 Old Armidale Road Stannifer property and register his name on the certificate of title." 5 The plaintiff says that at that time he was happy with that result of his negotiations with the defendant. This was only a verbal acknowledgement by the defendant of the plaintiff's interest in the subject property. There was no writing signed by the defendant at that time acknowledging that interest. 6 However, as a result of further negotiations that have taken place between the defendant and the plaintiff, the defendant swore a joint statutory declaration with the plaintiff. Although it does not directly acknowledge an interest of the plaintiff in the Armidale property, under the hand of both the plaintiff and the defendant the statutory declaration says: "1. The property at 275 Old Armidale Road, Stannifer, New South Wales 2369 be sold and the cheque be given to William Siu. 2. The net proceeds from the sale of the property be divided between the two persons above - with William Siu receiving 48.84 percent and Leah Rui Fen Li receiving 51.16 percent. 3. All other money will no longer be requested in the future." 7 A written agreement to deal with the net proceeds of sale of the property will not itself be a caveatable interest: Shepherd v Houston [1927] SASR 144. But that writing, together with the conversation deposed to Mr Siu's affidavit may found an argument that the plaintiff has an enforceable equitable charge over the property. The statutory declaration gives written support to the defendant's oral acknowledgement of the plaintiff's interest in the Armidale property. 8 For that reason I am prepared to allow the orders to remain in place and the caveat to continue to be extended as was ordered by Justice McDougall until further order of the Court. 9 The question arises as to what should be done now. The present situation cannot be allowed to continue indefinitely. It is necessary, for the plaintiff to specify the nature of the interest that he claims in the Armidale property. This is particularly so in circumstances where the defendant appears to have returned to China and will not be back until December. 10 The orders made by Justice McDougall on 15 July adjourned these proceedings to today. He directed that his reasons for judgment, his orders, the summons and notice of motion and affidavits in support be sent by prepaid ordinary post to the defendant at the address set out in paragraph 2 of the defendant's affidavit sworn on 15 July. There has been a change of solicitors for the plaintiffs between the hearing before Justice McDougall on 29 July 2009 and the present day. There is evidence that the plaintiff's previous solicitors, Messrs Chris Nadolski & Associates, Lawyers and Public Notaries sent the material to the defendant in accordance with Justice McDougall's orders. That material did come to her notice. As exhibit A on this application shows, she wrote to the Court a letter received by the Supreme Court on 2 September 2009, indicating that she was coming back to Sydney on "Thursday 26th 2009". She sought in the letter a change in the date for the hearing of the balance of these proceedings to early December 2009. 11 The puzzling words "Thursday 26th 2009" appear to be a reference to Thursday 26 November 2009. Mr Kevin Breen, the Court's listing service manager, responded to the defendant's letter and said: "Your matter can only be considered for an adjournment if it is by consent by all parties involved in the proceedings". He suggested that Ms Li should contact Mr Siu about a possible adjournment. It is clear from this letter that she has notice of these proceedings today. 12 The best course now is to require the plaintiff to file and serve a statement of claim. Aspects of the plaintiff's claim for an equitable interest in the Armidale property are uncertain. I am told that the plaintiff's claim can be pleaded by 9 November. 13 In those circumstances it is appropriate to adjourn the proceedings to 3 December 2009. Therefore I will make the following orders: 1. Direct the plaintiff to file and serve a statement of claim pleading the nature and extent of his equitable interest in the Armidale property, on or before 9 November 2009. 2. Direct the plaintiff to notify the defendant of today's judgment and orders within 14 days at the address to which the previous correspondence was forwarded. 3. Adjourn these proceedings for further hearing to Thursday 3 December 2009 before the Registrar in Equity. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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