Kim & 1 or v Kim

[2006] NSWSC 472

CITATION:	Kim & 1 or v Kim [2006] NSWSC 472
HEARING DATE(S):	14 September 2006
JURISDICTION:	Equity Division Duty List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	09/14/2006
DECISION:	Order for sale made upon undertaking of first plaintiff to exonerate other parties.
CATCHWORDS:	REAL PROPERTY – Co-ownership – Sale – where property subject to mortgages – where moneys secured used by first plaintiff for his own separate benefit - exoneration
LEGISLATION CITED:	Conveyancing Act 1919 (NSW), s 66G Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
CASES CITED:	Re Wakim; Ex parte McNally (1999) 198 CLR 511 Young v Lalic [2006] NSWSC 18
PARTIES:	Sung Soo Kim (first plaintiff) Jae Koo Kim (second plaintiff) Yong O Kim (defendant)
FILE NUMBER(S):	SC 4155/06
COUNSEL:	Mr J Fisicaro (sol) (plaintiffs)
SOLICITORS:	John Fisicaro & Co (plaintiffs)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Thursday 14 September 2006

4155/06 Sung Soo Kim & 1 Or v Yong O Kim

JUDGMENT (Ex tempore)

1 HIS HONOUR: The plaintiffs are mother and son. They seek orders under Conveyancing Act 1919 (NSW), s 66G for the sale of a property at 11 Farnham Avenue, Roselands of which they and the defendant, who is the first plaintiff's father and the second plaintiff's estranged husband, are the registered proprietors. The title is held by the first plaintiff Sung Soo Kim, as to a one quarter share as tenant-in-common with the defendant Yong O Kim, the second plaintiff Jae Koo Kim and the first plaintiff Sung Soo Kim as joint tenants as to a three quarter share.

2 An affidavit of Joseph Khoury sworn 23 August 2006 proves service of the summons and affidavits on the defendant on 18 August 2006. There was no appearance on behalf of the defendant today. Mr Fisicaro, who appears for the plaintiffs, informs me that last night he had a telephone conversation with the defendant, who said that he would not be coming to Court today.

3 The proceedings, at least as between the second plaintiff and the defendant, are a matrimonial cause, and accordingly fall within what is prima facie the exclusive jurisdiction of courts exercising jurisdiction under the (Cth) Family Law Act. However, as explained in Young v Lalic [2006] NSWSC 18, the jurisdiction of the Family Court of Australia is vested in this Court pursuant to so much of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) as survives the decision of the High Court in Re Wakim; Ex parte McNally (1999) 198 CLR 511. Accordingly, there is no jurisdictional obstacle to this Court making a s 66G order, notwithstanding that the proceedings are, at least in part, between wife and husband.

4 The formal requirements for the making of the order have been proved, and a consent of trustees and affidavit of fitness is in evidence.

5 The ordinary form of order is that the title vests in the trustees subject to encumbrances affecting the entirety of the land but free from any encumbrances affecting any undivided share or shares in the land. It appears that the whole of the land is affected by two mortgages registered number AA289214 and AA289215 to the Australia and New Zealand Banking Group Ltd. The plaintiffs' evidence shows that the borrowings secured by those mortgages were applied for the exclusive benefit of the first plaintiff in that they secured advances used to purchase property at Charlestown in the name of his own children. The first plaintiff, says that his father, the defendant, has no responsibility or liability for repayment of that loan, other than as third party mortgagor.

6 Prima facie, that does not affect the circumstance that the mortgages affect all interests in the land the subject of this application, but the other co-owners would have an equity of exoneration against the first plaintiff, who proffers an undertaking to the Court that he will procure the discharge of the ANZ mortgages without recourse to the proceeds of sale and from his own funds, and does not oppose a declaration that the other parties are entitled to be exonerated from his share in respect of any liability under those mortgages.

7 My orders are:

1. I declare that the second plaintiff and the defendant are entitled to be exonerated out of the first plaintiff's interest in the property situate at and known as 11 Farnham Avenue, Roselands, being the land comprised in folio identifier 118/7398, in respect of any liability which they may have or incur under or in respect of mortgages AA289214 and AA289215 to Australia and New Zealand Banking Group Ltd affecting that property.

2. Upon the undertaking of the first plaintiff by his solicitor to the Court that upon or before completion of the sale of the property, he will procure the discharge of those mortgages entirely from his own funds and without recourse to the share of the proceeds of sale to which the second plaintiff or the defendant is entitled, orders in accordance with paras 1 and 2 of the summons.

3. Further order that any of the parties be at liberty to purchase the property, whether at auction or by private treaty.

4. Order that the plaintiffs' costs be paid out of the proceeds of sale.

5. Reserve liberty to apply on seven day's notice in the event of any difficulty arising in the implementation of these orders.


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