CTI Resort Holdings Group Pty Ltd v Chen [2017] NSWSC 142

Supreme Court New South Wales

Medium Neutral Citation: CTI Resort Holdings Group Pty Ltd v Chen [2017] NSWSC 142 Hearing dates: 24 February 2017 Date of orders: 24 February 2017 Decision date: 24 February 2017 Jurisdiction: Equity Before: Kunc J Decision: Proceedings to be dismissed if Plaintiff cannot prove capacity to do equity Catchwords: EQUITY – General principles – "Doing equity" – Plaintiff must demonstrate capacity to "do equity" by payment of purchase price for land alleged to be subject of constructive trust Legislation Cited: Civil Procedure Act 2005 (NSW) s 56 Cases Cited: CTI Holdings Pty Limited v Jingquan Chen [2015] NSWSC 2086 Huang v Wang [2015] NSWSC 510 Huang v Wang (2016) 114 ACSR 586; [2016] NSWCA 164 Category: Procedural and other rulings Parties: CTI Resorts Holdings Group Pty Ltd (ACN 603076026) (Plaintiff)

Jing Quan Chen (First Defendant) Full River Pty Ltd (Second Defendant) Representation: Counsel: K.P. Tang (Plaintiff) J. Lee (Defendants)

Solicitors: Shohmelian Legal (Plaintiff) SHL & Associates Lawyers (Defendants) File Number(s): 2015/181299 Publication restriction: No

eX tEMPORE judgment

Summary 1. The defendants, Jing Quan Chen and Full River Pty Ltd ("Full River"), move by amended notice of motion filed in Court today for orders against the plaintiff, CTI Resorts Holdings Group Pty Ltd ("CTI"), including: "1. An order pursuant to UCPR 13.4 (1) that the plaintiff's statement of claim be dismissed. 2. Alternatively, an order pursuant to UCPR 14.28 that the plaintiff's statement of claim be struck out. 2A. An order pursuant to section 74MA of the Real Property Act 1900 (NSW) that the caveat AJ624014 and AJ797203 lodged on the title of the land comprised of folio identifiers 128/754440, 129/754440, 132/754449 and Auto Consol 13267/105 by the plaintiff be withdrawn within 7 days from the date of these orders. 3. An order that the plaintiff pay the defendants (sic) costs of the proceedings, including the costs of this Notice of Motion. 4. An order that the defendants, either upon agreement with the plaintiff or upon filing with the registry of this Court a certificate of assessed costs, be paid its costs out of the money paid into Court by the plaintiff as security for costs." 1. The Court is satisfied that, in broad terms, the defendants are entitled to orders of the kind which they seek. However, for reasons which I will shortly explain, the Court is also satisfied that those orders should be stayed in order to give CTI an opportunity to satisfy the Court, and the defendants, that CTI is ready, willing and able to pay $1,350,000 to Full River if CTI is otherwise successful in the proceedings.