Jun Lin v Commonwealth DPP & Anor [2005] NSWSC 431

Jun Lin v Commonwealth DPP & Anor [2005] NSWSC 431

Ms Lin was entitled to an equitable charge over 20 Epping Road, Double Bay, 87 Springdale Road, Killara, and 4/2A Black Street, Vaucluse, supported in the case of the first by written agreement and in the case of the others by oral agreement, consent to caveats, and forbearance to sue. However, as to the properties subject to the Commonwealth’s statutory charge and restraining order, Ms Lin failed to establish entitlement to variation or exclusion as she did not demonstrate it was in the public interest, given insufficient evidence of property values or the adequacy of her other securities.

Parties
Plaintiff: Jun Lin; First Defendant: Commonwealth Director of Public Prosecutions; Second Defendant: Deboran Chun (Also known as Deborah Law, and Deborah Kam Fung Law)
Jurisdiction
Australia
Judgment Date
25 May 2005
Procedural Posture
Civil / Trial Judgment
Outcome
Plaintiff's claim allowed in part; declarations granted for some relief, but exclusion from restraining orders and priority over the Commonwealth refused.
Legal Topics
Equitable Charge, Security Interests, Caveats, Proceeds of Crime, Part Performance, Priority of Interests
Property Law Criminal Law Equitable Charge Security Interests Caveats Proceeds of Crime Part Performance Priority of Interests

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Parties

Jun Lin

Plaintiff

Commonwealth Director of Public Prosecutions

First Defendant

Deboran Chun (Also known as Deborah Law, and Deborah Kam Fung Law)

Second Defendant

Procedural Posture

Civil / Trial Judgment

Legal Issues

  1. 1 Whether the plaintiff is entitled to an equitable charge over certain properties of the second defendant.
  2. 2 Whether an oral agreement and lodgement of caveats is sufficient to constitute security in the absence of writing as per s.23C of the Conveyancing Act.
  3. 3 Whether the plaintiff’s interest in the properties has priority over the Commonwealth as represented by the DPP.

Ratio Decidendi

Ms Lin was entitled to an equitable charge over 20 Epping Road, Double Bay, 87 Springdale Road, Killara, and 4/2A Black Street, Vaucluse, supported in the case of the first by written agreement and in the case of the others by oral agreement, consent to caveats, and forbearance to sue. However, as to the properties subject to the Commonwealth’s statutory charge and restraining order, Ms Lin failed to establish entitlement to variation or exclusion as she did not demonstrate it was in the public interest, given insufficient evidence of property values or the adequacy of her other securities.

Court Disposition

Plaintiff's claim allowed in part; declarations granted for some relief, but exclusion from restraining orders and priority over the Commonwealth refused.

Orders

  • Declarations in terms of paragraphs 2, 3, and 4 of the Further Amended Summons granted.
  • Declarations as in paragraphs 6(a), (b), (c), and (d) granted.