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2 Numerous affidavits were filed in support of, and in opposition to, the application. The relevant affidavits filed on behalf of the plaintiffs were three by Mrs Chan sworn 1 September, 8 September and 17 October 2003 respectively; five by the Chans' daughter, Sing Chan, sworn 1 September, 7 September, 17 October, 21 October and 23 October 2003 respectively; two by the Chans' solicitor, May Yen Lee, sworn 2 September and 17 October 2003 respectively; one by Mr Chan sworn 8 October 2003 and one by the Chans' Migration Agent, Oliver Lai, sworn on 9 October 2003. The affidavits filed on behalf of the defendants were two by Mr Chen affirmed 22 September and 22 October 2003 respectively and one by Mrs Chen affirmed 17 October 2003. Some of the material in these affidavits concerned other issues apart from those before me.

Background

3 The following is a summary of the relevant history without going into the minutiae of the dispute. Mr Chan and Mr Chen are brothers. Their wives were friends when they were at school in China. Mr Chen came to Australia to study English in 1988 and took up permanent residence in 1989 following the events in Tienamen Square. In 1991 his wife and daughter joined him in Australia. The Chens were granted Australian citizenship in 1997.

4 In September 2000 Mr and Mrs Chan, then residing in Hong Kong, obtained a Sub Class 127 Business Migrant Visa giving them permanent residence in Australia They intended to retire to Australia. As part of meeting their visa requirements the Chans set up East World International (Australia) Pty Ltd, the third plaintiff ("EWIA"), in October 2000. Mrs Chan holds 4,000 shares and her husband 3,000 shares in the company. They agreed to issue 3,000 shares to Mr Chen. The three shareholders all became directors of EWIA. The company was to carry on an import/export business, in particular importing the same electrical products in which the Chans' company in Hong Kong, East World International Ltd, the fourth plaintiff, dealt. It was agreed that Mr Chen would run EWIA for a salary of $40,000 a year.

5 In late 2000 Mr and Mrs Chen drew the attention of Mr and Mrs Chan to the properties at 176 and 178 Kooyong Road, Toorak. Number 176 was on the market for $2 million but was "too big for one family and too expensive". The Chans asked Mr Chen to contact the real estate agent to see if they could buy number 178. Mrs Chan subsequently purchased 178 Toorak Road for $1.65 million. It was not disputed that Mrs Chan had paid all of the purchase price and all associated costs of approximately $100,000. The money was forwarded to Mr Chen as the Chans had no Australian bank account. Initially, Mrs Chan was the sole registered proprietor, but in February 2002 she and her husband became joint registered proprietors of the Toorak property.

6 According to Mr and Mrs Chan, in January and February 2001 the Chans and the Chens discussed and agreed that the Chens could live in the Toorak property until Mr and Mrs Chan came to live in Australia permanently. At that time it was anticipated that it would be two to three years before the Chans moved from Hong Kong to Melbourne, although they were aware that they needed two years' residency by 20 September 2005 to fulfil their visa requirements. Mrs Chan said that she told the Chens that she thought that they would not be back in Australia too often until their daughter came to Melbourne to study for a Master's degree in mid to late 2003.

7 According to Mr Chen, on several occasions in 2000 his brother asked him to leave his job as a security guard with Chubb Securities and close his Chinese medicine practice so that he could help establish and work for a business of the Chans in Australia in order that they could meet their visa requirements. He said that it was also agreed that the two couples would live together when the Chans came to live in Australia and that everyone agreed that the Chens' home in Footscray was too small for "two adult families to live in". Mr Chen said that it was agreed that the four of them would together purchase a larger house "which would be occupied by all of us and would become our joint family home". Neither of the daughters would live with them on a permanent basis. Mr Chen said that his brother said that he would provide the money for the new home because Mr Chen was helping Mr Chan and his family to settle in Australia. Mr Chen further said that "initially it was agreed that the title to the new house would be jointly held in the name of my brother's wife and I", but that later, Mrs Chan said that, for reasons connected with her visa requirements, the new house should be held in her name and that Mr Chen's name could be added to the title later in accordance with the original agreement. Mr Chen said that he agreed with the suggestion as his wife was "uncomfortable" with him holding title to the new house "with a woman who was not my wife".

8 As discussed with his brother, Mr Chen located a suitable house in Toorak, and successfully bid for it at auction with his wife or nominee being named as the purchaser. Following settlement by the substituted purchaser Mrs Chan, the Chen family moved into possession of the Toorak property. It was furnished with new furniture purchased by the Chens, furniture from their Footscray home and new furniture purchased by the Chans when they visited Australia in early 2001.

9 Mr Chen said that in consultation with his brother he placed his Footscray house on the market and it was later sold. He said that his brother was aware that selling the Footscray house would necessitate the closure of his Chinese medicine practice. He also gave up his job with Chubb Securities and commenced working for EWIA.

10 According to Mr Chen, in August 2001 the Chans each provided him with an enduring power of attorney "to ensure my right regarding the [Toorak] property and [EWIA] as previously agreed". The certificate of title to the Toorak property was also left in his possession "for the same reason". Mr Chen said that his brother and sister-in-law said to him that they wanted to show that he was a part owner of the property "by giving me a power of attorney and the Certificate of Title. They said that it would be just like getting my name on the Certificate of Title". Because he had these documents he did not question the suggestion by Mrs Chan that her husband's name be placed on the title.

11 However, Mrs Chan said that the duplicate certificate of title was left at the Toorak property in an inbuilt deed box in the master bedroom, to which her brother-in-law had a key. After the purchase of the Toorak property, the master bedroom was set aside as the Chans' bedroom for their use when they visited Australia.

12 According to Mrs Chan, in March 2003 Mr Chen rang her in Hong Kong and requested that his and his wife's names be put on to the title of the Toorak property, or at least his name. He offered to pay the costs of doing this. Mrs Chan said that she refused, stating that he should go and buy a property of his own, but that if he did not have enough money she and her husband would consider lending him some. Mrs Chan said that about a week later Mr Chen rang her again and repeated his request. He said that if his and his wife's names were not added to the title he would not look after EWIA. Mr Chen said to her that he had sold his house, left his job to look after the company, and no longer had his own business.

13 According to Mr Chen, in March 2003 he requested that his name be added to the title of the Toorak property because he was uneasy about a proposal from his sister-in-law that her daughter live at the Toorak property whilst she was studying in Australia. He told Mrs Chan that he would pay for the cost of his name being added. He said that it was only fair that his name be added because he had sold his Footscray property, closed down his Chinese medicine practice and left his job with Chubb Securities in order to help her and his brother. He said that Mrs Chan said she would not object to his name being added to the title of the Toorak property. Straight after this conversation, he allegedly spoke to his brother in China, who agreed that his name could be added.

14 Mr Chen said that he then went to the Land Registry Office to arrange for his name to be added to the title of the Toorak property. He took with him the certificate of title and the enduring powers of attorney, but was told that he needed a transfer signed by the Chans. In the circumstances, he decided to wait for their next visit to Australia.

15 In one of her affidavits, Ms Chan disputed that her uncle was only told in early 2003 that she would be coming to Melbourne to study in the middle of 2003. She said that in October 2000 when she was staying with her parents at her uncle's house he learnt that she had obtained a Sub Class 127 Business Migrant Visa in September 2000, which required her to arrive permanently in Australia before September 2005. She also said that in August 2002, when staying with her uncle and aunt, she told her aunt that she would probably come to Melbourne for post graduate studies "in early or mid 2003". Mrs Chen allegedly replied that she should come to Australia as soon as possible so that her family could purchase a house of their own and move out of the Toorak property. In June 2003, Ms Chan arrived in Australia to commence her study. Unfortunately, there was a disagreement between Ms Chan and her aunt which resulted in Ms Chan ceasing to live at the Toorak property. She took up residence in student accommodation and pays rent of about $1,200 per month. The defendants maintained that this was Ms Chan's original intention, but this was denied by her.

16 In August 2003, Mr and Mrs Chan removed Mr Chen as a director of EWIA. They allege that he has not accounted for a large part of the $840,000 sent by Mrs Chan to her brother-in-law for use in the company's business. Mrs Chan stated that she was concerned that instead of carrying on the import/export business originally agreed, Mr Chen was unsuccessfully using the company's money to play the futures market and the currencies market. Mr Chen did not dispute that he had determined that EWIA should trade in derivatives and on the futures market. He said this resulted from the company's inability to compete in the electrical products market. According to Mr Chen the proposed strategy was discussed with the Chans and "encouraged by them". It is not necessary at this stage to examine further the dispute surrounding the affairs of EWIA.

17 On 22 August 2003, the Chans sought to gain access to the Toorak property but were refused by Mr Chen. According to Mr Chen, he and his family did not vacate the Toorak property when asked to do so by the Chans because he had an agreement with them "to reside in that house permanently". He then went on to say that he was a "part owner" of the Toorak property.

18 Ms Lee, the Chans' solicitor, deposed that on 22 August 2003 she spoke to Mr Chen's solicitor asking for the house key and duplicate certificate of title and for a promise that Mr Chen would move out in a week's time. She said that Mr Chen's solicitor said that he had been instructed that his client had been told that he could live at the Toorak property for life. In a subsequent letter, Mr Chen's solicitor referred to his clients' instructions that they had "the present right to occupy the [Toorak] property".

19 It will be obvious from the above summary, that each side strongly disputes the other side's version as to what the agreement, if any, was concerning ownership of the Toorak property or entitlement to live at the Toorak property.

20 When this proceeding was commenced, Mr and Mrs Chan were living with their daughter in her small student accommodation. She was sleeping on the floor. However, the defendants challenged the genuineness of the desire and need of the Chan family to reside at the Toorak property. In response, Mrs Chan deposed that in the immediate future she would be visiting Hong Kong and China on business for one or two weeks and that she intended "for the long term future to be in Australia for 7 out of every 8 weeks". In the eighth week she would again be in Hong Kong and China for business purposes. Mrs Chan also deposed that her husband was currently in Hong Kong and had expressed a desire not to return to the student accommodation "because he does not like living in close proximity to two females, but would return to 178 Kooyong Road". It was his intention to spend half of his time in Melbourne, but he had a business to run in Hong Kong and "filial obligations" to his elderly parents in China. Ms Chan said that she wanted to live at the Toorak property whilst she was studying rather than having "to put up with cramped living conditions". Living with "a highly stressed parent" in these circumstances had affected her preparation for university examinations.

21 In his second affidavit, Mr Chen deposed that since he had been notified in August 2003 that he was no longer a director of EWIA he had been unemployed. Defending this proceeding had hindered his ability to seek employment, but in any event he was 51 years old and his prospects of finding another job quickly were not good. The stress of the proceeding had exacerbated his wife's hypertension and diabetes and his daughter's university studies had been disrupted with a consequential increase in her HECS fee.

22 However, in this affidavit Mr Chen made no comment on his current financial position. In his first affidavit, Mr Chen had said that as at September 2000 his family had net assets in excess of $710,000, including the Footscray property which he valued at approximately $200,000. This was sold in May 2001 for $225,000.

Possession of the Toorak Property Pending Trial

23 Mr Barton of counsel, who appeared on behalf of the plaintiffs, submitted that, although an interlocutory mandatory injunction was unusual, the plaintiffs had satisfied the appropriate test for such relief. He submitted that the most frequently applied test was whether the Court felt a high degree of assurance that at trial it would appear that the injunction was rightly granted.[1] Mr Barton also referred to an alternative test of whether it appears to the Court that the refusal of a mandatory injunction would carry a greater risk of injustice than granting it, even if the Court does not feel "a high degree of assurance".[2]

24 Mr Barton submitted that either test was satisfied in this application. Although he did not dispute that there was a serious issue to be tried, Mr Barton submitted that the defendants' case was unlikely to succeed. On the one hand, there was the Toorak property registered in the name of Mr and Mrs Chan and the payment by Mrs Chan alone of all of the purchase money and associated costs. On the other hand, there was the defendants' claim that there was an oral agreement, which went beyond that acknowledged by the Chans that the Chens could live in the Toorak property until the Chans came to Australia to live. The plaintiffs submitted that the defendants' evidence about this agreement was unclear. Sometimes it was said that under the agreement the Chens were entitled to live in the Toorak property for life, at other times it was suggested that Mr and Mrs Chen were, or at least Mr Chen was, a part owner of the Toorak property. Mr Barton submitted that it was unlikely that a couple would pay $1.65 million to purchase a house, giving the husband's brother and his wife partial ownership of the house or the right to live there on a shared basis for what could be decades, and yet also agree that their own daughter would be excluded from living in the house with them.

25 When it came to considering the balance of convenience Mr Barton submitted that it clearly favoured granting the interlocutory injunction to allow the Chans, pending the trial, to live in the house which they had purchased at great expense. The defendants would have to rent accommodation or they could purchase a house with the proceeds of the sale of the Footscray property. Either way, if it became necessary, their damages were readily quantifiable. If the injunction were not granted, it would be the Chans who would have to live in rented accommodation pending the trial, whilst the defendants continued to live rent free in the Toorak property. Mr Barton submitted that on either version of the oral agreement, the Chans were entitled to possession of the Toorak property and that it was this factor which swung the balance in favour of the Chans occupying the Toorak property pending the trial. The only question was whether it was sole possession or shared possession with one or both of the Chens. The suggestion by the defendants that possession be shared pending the trial was rejected by the plaintiffs as impractical.

26 Mr Rodbard-Bean of counsel, who appeared on behalf of the defendants, submitted that in the circumstances the onus was on the plaintiffs to satisfy the Court that there was a marked balance of convenience in favour of granting the interlocutory mandatory injunction. He submitted that there was no real prejudice which would be suffered by the plaintiffs if their application for interlocutory relief was denied. Damages were clearly an alternative remedy and would be easily quantified. He also relied on the defendants' open offer of co-possession of the Toorak property pending trial.

27 I accept Mr Rodbard-Bean's submission that any argument that the Chans needed to obtain sole possession of the Toorak property in order to advance their immigration application was not made out. I also agree that the position of the Chan's daughter, a non-party, is not a relevant consideration.

28 Initially, I was somewhat attracted by the defendants' proposal of co-possession. As Mr Rodbard-Bean pointed out, the Chans and the Chens had shared the Toorak property in the past without incident. However, that was only for short periods. Further, there had now been a serious rift in the relationship between the two families. After further reflection, it seems to me that, in the circumstances, it is quite unrealistic to contemplate requiring the parties to share possession of the Toorak property pending the trial, particularly as there is only one kitchen/family room area. I therefore put that solution to one side. Nevertheless, the fact that the Chens made the offer of co-possession is a relevant matter to take into account in the exercise of my discretion.

29 It was submitted on behalf of the defendants that to grant the application would be to remove them from the Toorak property without "due process" and without the protection of a full hearing at trial, as discussed by Hoffmann J in Films Rover International Ltd v Cannon Film Sales Ltd ("Films Rover")[3]. Mr Rodbard-Bean placed great reliance on this judgment. He urged that it would be quite inequitable to require the Chens to vacate the Toorak property when Mr Chen had given up his job as a security guard and his Chinese medicine practice to establish EWIA and had sold his home relying on the promise from the Chans about gaining an interest in the Toorak property Apart from denying that the defendants had been promised any such interest, the plaintiffs' answer was that Mr Chen had been given a 30 per cent interest in EWIA and paid a salary equivalent to his salary as a security guard, so that Mr Chen had not suffered any detriment. The termination of his employment had been brought about by his own conduct.

30 I consider that, in the circumstances of this case, most of the reasons given by Hoffmann J in Films Rover[4], following the earlier judgment of Megarry J in Shepherd Homes Ltd v Sandham[5], for concluding that mandatory injunctions "generally carry a higher risk of injustice if granted at the interlocutory stage"[6] are not applicable. For example, the interlocutory mandatory injunction sought by the Chans would not, if granted, give them the whole of the relief claimed in the proceeding. A trial would still be required to decide what, if any, interest or entitlement the Chens had in the Toorak property. It is for this reason that I do not accept Mr Rodbard-Bean's submission that this application was an inappropriate attempt to obtain summary judgment.[7] The effect of the interlocutory mandatory injunction could easily be reversed at the trial, if that were thought to be the correct result.

31 Secondly, an order requiring the Chens to give the Chans sole possession of the Toorak property would not cause excessive or irreparable waste in terms of time and money if it turns out to have been wrongly granted. Certainly, the Chens will be required to move out of the Toorak property if an order is made. But this proceeding is not like many mandatory injunction cases because an interlocutory order would not require "the dismantling or destruction of something already erected or constructed" with the risk of "a consequent waste of time money and materials if it is ultimately established that the defendant was entitled to retain the erection".[8]

32 Further, such an order may not cause any waste in terms of time and money. At best for the Chens, the eventual result will be that one is, or both of them are, held to be tenants in common with the Chans of the Toorak property. Mr Rodbard-Bean was correct, in my opinion, when he submitted that partition of a property, pursuant to s.221 of the Property Law Act 1958, was the absolute right of a co-tenant, unless either party sought the sale of the property.[9] But it was hardly to the point to submit that this would be the position which would prevail after the trial. If one is, or both of the Chens are, held to be part owner of the Toorak property and he or they make an application for partition, I have no doubt that the Chans would seek an order for the sale of the Toorak property pursuant to s.222 of the Property Law Act 1958. It therefore seems to me that it would be unlikely that the question of the defendants' entitlement to share possession of the Toorak property with the Chans will again arise.

33 An alternative result at the trial would be that one or both of the Chens would be found to have some equitable interest in the Toorak property, less than partial ownership. I agree with Mr Barton's submission that in these circumstances the likely result would be the award of a monetary sum to Mr and Mrs Chen not relief in terms of acquisition of title to the Toorak property.[10] That is, the Chans' right to some form of possession of the Toorak property undoubtedly exists, but even if the Chens successfully make out their claim to some equitable interest this may not result in them being able to assert any right or entitlement to go back into shared possession with the Chans as distinct from receiving a monetary sum for being wrongfully deprived of their equitable interest. Even though I agree with Mr Rodbard-Bean's submission that this hypothetical result presupposes that the credibility of Mr and Mrs Chan will have been thoroughly discredited, I cannot see that it will lead to any court order allowing the Chens back into possession.

34 Thirdly, it seems to me that there is no difficulty in formulating the interlocutory order with sufficient precision for it to be enforceable.

35 I reject Mr Rodbard-Bean's further submission that the Chans were guilty of delay in making their application. It seems to me that after Mr Chen refused them access to the Toorak property on 22 August 2003, they moved reasonably quickly in commencing this proceeding on 2 September 2003 and first bringing the application on in the Practice Court, after an unsuccessful mediation, on 16 October 2003 pursuant to consent orders. Even if Mr Rodbard-Bean is correct in describing the incident between Ms Chan and her aunt on 16 June 2003 as "the triggering event" for the interlocutory application, I consider that the period of time between that event and the subsequent application was not unreasonable, bearing in mind that Mr and Mrs Chan had to free themselves from business commitments to come to Australia to deal with the issue. It is not to the point, in my opinion, that there is no evidence of any desire by the Chans "to exercise their sole proprietary right" prior to that incident. The Chans acknowledge that the Chens were entitled to live in the Toorak property until they came to live in Australia permanently which it would appear they only did in August 2003, when their attempt to enter the house was refused by Mr Chen.

36 I also reject Mr Rodbard-Bean's submission concerning the relevance of cases in which it has been held that an injunction would not be granted to restrain a defendant from trespassing on land when the right of the plaintiff to possession is in question.[11] Apart from jurisdictional issues which do not arise here, these cases stand for the proposition that in those circumstances an injunction will not be granted where the claim is essentially one for the recovery of land rather than for trespass. This proceeding does contain a claim for recovery of land and there is no claim made in respect of trespass by the defendants. Moreover, the Chans' right to possession is undoubted. The only question is whether they have the sole right to possession of the property registered in their name or whether the defendants also have a right to shared possession of the Toorak property.

37 Finally, Mr Rodbard-Bean submitted that in accordance with well recognised principles, the status quo ought to be maintained pending trial and that this meant allowing the Chens to remain in sole possession of the Toorak property, if the Chans did not accept the offer to share, until the dispute had been determined. The Chens have now lived at the Toorak property for over two and a half years. In Agbor v Metropolitan Police Commissioner[12], possession of a flat for four weeks was treated as the status quo that was to be preserved by a mandatory order restoring possession to Mr and Mrs Agbor and their family after they had been evicted by the police. However, the dispute in that case, between the Federal Government of Nigeria and a representative of the former Eastern Region of Nigeria which had seceded and become the Republic of Biafra, over who had the right to possession of the flat is rather different to the present situation. On one view, the status quo is that the Toorak property is solely owned by the Chans because it is registered in their name and it is not disputed that Mrs Chan provided all of the money to pay the purchase price and associated costs. Unless and until a court has found in their favour, it could be said, the Chens have no rights in respect of the Toorak property. In any event, these undisputed facts make this situation rather special, and in my opinion, justify the making of an interlocutory order which arguably disturbs rather than maintains the status quo.

38 A relevant consideration was the defendants' reluctance to accept that it might be appropriate to pay an occupation rent for the Toorak property pending the trial, even though it could have been adjusted or repaid once rights had been determined at the trial. The defendants' final position on this question was that an occupation rent was only payable if the Chans were denied possession prior to trial which, they submitted, was not the case. This stance ignores the fact that the result at trial might be that the Chans are held to have been entitled to sole possession since the commencement of the proceeding. It presupposes that there is some justification for the Chens' claim to shared possession of the Toorak property. The Chens' reluctance to volunteer payment of a full market rental for the Toorak property pending the trial strengthens my conclusion that the correct result of this application is to grant the interlocutory mandatory injunction sought by the plaintiffs.

39 For all of the above reasons, I am satisfied to a high degree of assurance that at trial it will appear that the interlocutory mandatory injunction which I propose to make was rightly granted, in the sense that whatever the eventual outcome of the proceeding the defendants will not be going back into sole or shared possession of the Toorak property. Alternatively, I am satisfied in all the circumstances that if I were to refuse the Chans' application there would be a greater risk of injustice to them by not allowing them to have sole possession of the house registered in their name and which was purchased by their funds alone, than there would be a risk of injustice to the Chens by requiring them to give possession of the Toorak property to the Chans pending the trial. Any loss suffered by the Chens during this period, such as the payment of rent, is readily quantifiable. Further, their potential interest in the Toorak property is not at risk because the plaintiffs agreed to give an undertaking that they would not mortgage or encumber it in any way, pending the trial.

Possession of the Chattels

40 As I understood the position, there was really no dispute between the parties concerning possession of the chattels. As the Chans will be going into possession of the Toorak property pursuant to my order, their chattels can remain there. All of the chattels purchased by the Chens can be taken by them when they leave the Toorak property. Hopefully, this will not lead to further disputes between the two families.

Form of Order

41 I will hear from counsel as to the final form of the order including the question of costs.