Wei v Chen [2012] NSWSC 751

Wei v Chen [2012] NSWSC 751

The Second Defendant advanced funds to the Plaintiff and First Defendant on the basis that they would be repaid. The Plaintiff and Second Defendant agree on entitlement of the Second Defendant, and the First Defendant was properly served but did not appear or oppose. It would be unconscionable for the Plaintiff and First Defendant to retain the benefit. The money in court should be paid out to the Second Defendant and she is entitled to judgment for the balance. Costs are apportioned according to participation and use of affidavits/submissions.

Jurisdiction
Australia
Judgment Date
06 July 2012
Procedural Posture
Equity Proceedings Regarding Payment of Funds Held in Court and Cross Claim for Repayment of Advanced Moneys / Principal Judgment After Hearing of Notice of Motion and Cross Claim
Outcome
Judgment for the Second Defendant against Plaintiff and First Defendant for $118,044.67, declaration of total amount owing $317,005.46, orders for payment out of court, dismissal of balance of claims, and apportionment of costs as per orders.
Legal Topics
['appointment of Trustees for Sale' 'repayment of Loan/advancement of Funds' 'payment Out of Court Under Trustee Act' 'default Judgment' 'service of Process' 'costs']
['equity' 'trusts' 'civil Procedure'] ['appointment of Trustees for Sale' 'repayment of Loan/advancement of Funds' 'payment Out of Court Under Trustee Act' 'default Judgment' 'service of Process' 'costs']

Case Brief

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Procedural Posture

Equity Proceedings Regarding Payment of Funds Held in Court and Cross Claim for Repayment of Advanced Moneys / Principal Judgment After Hearing of Notice of Motion and Cross Claim

Legal Issues

  1. 1 ['Whether the proceeds of sale of property paid into court should be paid out to the second Defendant in satisfaction of a debt owed by the Plaintiff and first Defendant' 'Whether Plaintiff and first Defendant are liable to repay monies advanced by the second Defendant' 'Whether service on first Defendant was adequate for orders to be made against him' 'How liability and costs between the parties should be apportioned']

Ratio Decidendi

The Second Defendant advanced funds to the Plaintiff and First Defendant on the basis that they would be repaid. The Plaintiff and Second Defendant agree on entitlement of the Second Defendant, and the First Defendant was properly served but did not appear or oppose. It would be unconscionable for the Plaintiff and First Defendant to retain the benefit. The money in court should be paid out to the Second Defendant and she is entitled to judgment for the balance. Costs are apportioned according to participation and use of affidavits/submissions.

Court Disposition

Judgment for the Second Defendant against Plaintiff and First Defendant for $118,044.67, declaration of total amount owing $317,005.46, orders for payment out of court, dismissal of balance of claims, and apportionment of costs as per orders.

Orders

  • ['Documents identified in Order 1(i)-(viii) regarded as served upon First Defendant.' "Second Defendant's solicitor undertakes to pay filing fees for notice of motion and cross-claim." 'Amount payable by Plaintiff and First Defendant to Second Defendant is $317,005.46.' 'Amount paid into court in proceedings...