Chen v Gu; Chen v Nguyen [2011] NSWSC 1622 (15 December 2011)

REAL PROPERTY – where as part of their divorce settlement in the Family Court, the plaintiff (husband) and the first defendant (wife) were confirmed as tenants-in-common in equal shares of a unit and they were both named as owners on the certificate of title – where the first defendant sold the unit without the knowledge or consent of the plaintiff and forged the plaintiff’s signature on the contract of sale, the transfer and two authorities which purported to authorise her to act on the plaintiff’s behalf in relation to the sale and also to receive all of the net proceeds of sale – where the first defendant alleges an oral agreement whereby the plaintiff agreed to give her his half-interest in the unit in return for her relinquishing her alleged interest in another property and the first defendant also alleges that the sale occurred with the knowledge and consent of her ex-husband and that he authorised her to sign his name on the conveyance documents – issues of credit of witnesses – whether there was an agreement between the plaintiff and the first defendant that the plaintiff would pay money to the first defendant periodically in relation to a partnership business that they ran together which was subsequently run solely by the plaintiff – where the plaintiff also brings an action against the Registrar-General seeking compensation from the Torrens Assurance Fund for the loss of his interest in the unit

NEGLIGENCE – where the plaintiff brings an action in negligence against the solicitor who handled the sale of the unit – where the plaintiff and the first defendant spoke Chinese but the solicitor did not – where the first defendant and the plaintiff were completely unknown to the solicitor – where the first defendant attended the solicitor’s office twice with her cousin who was presented to the solicitor as her ex-husband – where the solicitor only took instructions from the first defendant and made no effort to ensure that the person he thought was her ex-husband understood the effect of those instructions – where the first defendant presented the signed contract of sale, transfer and two authorities to the solicitor on which the plaintiff’s signature was forged by the first defendant – whether there was a duty on the part of the solicitor to seek photographic identification to ensure that his clients were who they said they were – checking that the certificate of title is not a forgery is not sufficient – CAUSATION – whether the solicitor’s breaches of duty owed to the plaintiff as found caused the plaintiff’s loss – whether a false attestation of the plaintiff’s apparent signature on the transfer is a novus actus interveniens which breaks the chain of causation

TORTS – conversion – whether the solicitor wrongfully converted property jointly owned by the plaintiff and the first defendant ie the certificate of title, and wrongly converted the cheques representing the proceeds of sale of the unit by acting on the forged authority given by the first defendant to him and giving those cheques to the first defendant alone