85 Degrees Coffee Australia Pty Ltd v Ji

District Court

New South Wales

Medium Neutral Citation:

85 Degrees Coffee Australia Pty Ltd v Ji [2020] NSWDC 708

Hearing dates:

13 November 2020

Date of orders:

13 November 2020

Decision date:

13 November 2020

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraphs 44-51

Catchwords:

PRACTICE AND PROCEDURE – default judgment entered into against defendant – defendant applied to set aside default judgment – plaintiff served notice to produce for the purpose of resisting application to set aside default judgment – defendant’s application to be excused from producing certain categories of documents – alleged invalidity of notice – alleged claim of client legal privilege

Legislation Cited:

Civil Procedure Act2005 (NSW), s 68

Evidence Act1995 (NSW), ss 118, 119

Uniform Civil Procedure Rules2005 (NSW), rr 21.9, 21.10, 21.11

Cases Cited:

Australian Executor Trustees Ltd v Lanmar Pty Ltd [2008] NSWSC 549

Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Glencore International AG and Others v Federal Commissioner of Taxation and Others (2019) 93 ALJR 967; [2019] HCA 26

Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326

Hancock v Rinehart (Privilege) [2016] NSWSC 12

J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd t/as Greenwood Group Realtors [2019] NSWCA 283

Ken Tugrul v Tarrants Financial Consultants Pty Ltd (No.5) [2014] NSWSC 437

Texts Cited:

Hamilton et al, NSW Civil Procedure Handbook 2020, Thomson Reuters

Category:

Procedural and other rulings

Parties:

85 Degrees Coffee Australia Pty Ltd (Plaintiff)
Ms L Ji (Defendant)

Representation:

Counsel:
Mr D Smallbone for the plaintiff
Mr J Clifton for the defendant

Solicitors:
Accuro Maxwell for the plaintiff
Raymond Lee & Co for the defendant

File Number(s):

2020/31021

Publication restriction:

Nil

Judgment

INTRODUCTION

1. On 30 January 2020, 85 Degrees Coffee Australia Pty Ltd (who I will hereafter refer to as ‘85 Degrees’) sued Ms Lanfang Ji (‘Ms Ji’), as a guarantor of the obligations of Ji International Trading Pty Ltd (‘JIT’), under a franchise agreement for that entity to operate a bakery and café business, called ‘85 Degrees Daily Café Ashfield’, which was entered into in December 2016.

2. On 27 April 2020, 85 Degrees obtained a default judgment against Ms Ji for the sum of $254,056.48 (inclusive of costs). Since then, 85 Degrees has tried to enforce the judgment against Ms Ji. This has included several efforts at enforcement carried out in the middle of the year, including a writ of execution against property owned by Ms Ji and garnishee orders against several banks. But these were not effective.

3. On 30 July 2020, Ms Ji filed a motion seeking an order to set aside the judgment obtained on 27 April 2020. In support of that application, she affirmed an affidavit dated 30 July 2020. Ms Ji’s solicitor has deposed that procedural directions were made in relation to the hearing of that motion on 19 August 2020.

4. But those directions have…