Aollande Pty Ltd v He
[2024] VSC 736
•28 November 2024 (ex tempore)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2019 03371
| AOLLANDE PTY LTD (ACN 613 959 710) | Plaintiff |
| v | |
| LEI HE | Defendant |
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JUDGE: | Delany J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 October 2024 and 26 November 2024 |
DATE OF RULING: | 28 November 2024 (ex tempore) |
CASE MAY BE CITED AS: | Aollande Pty Ltd v He |
MEDIUM NEUTRAL CITATION: | [2024] VSC 736 |
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PRACTICE AND PROCEDURE – Application to set aside judgment – Explanation for failure to appear at trial not satisfactory – Defence on merits not substantiated – Supreme Court (General Civil Procedure) Rules 2015, r 49.02 – TSC Nominees Pty Ltd v Canham Commercial Interiors Pty Ltd and Ors [2017] VSC 86, applied.
PRACTICE AND PROCEDURE – Evidence by audio-visual link from People’s Republic of China – Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 42E – Grege v Grege [2024] VSC 475, applied – In the matter of Sunnya Pty Ltd [2023] NSWSC 1286, distinguished.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Timothy Scotter | Robinson Gill |
| For the Defendant | Ziran Guo, solicitor appearing | Smith Herbert Legal |
TABLE OF CONTENTS
The application................................................................................................................................... 1
The applicable principles................................................................................................................. 2
The 2024 proceeding.......................................................................................................................... 4
Contact between Aollande and Mr He between 2022 and 2024................................................ 5
The evidence on 25 October 2024.................................................................................................... 7
The Interise Legal subpoena to produce documents................................................................ 12
Evidence given remotely by Mr He from the People’s Republic of China.......................... 13
Further evidence received on 26 November 2024...................................................................... 16
Consideration.................................................................................................................................... 24
HIS HONOUR:
The application
These reasons concern an application for a re-hearing by the defendant, Mr Lei He in proceeding S ECI 2019 003371 (‘the 2019 proceeding’) (‘the re-hearing application’). The respondent to the application is the plaintiff in the 2019 proceeding, Aollande Pty Ltd (‘Aollande’).
The re-hearing application was heard on 25 October 2024 and 26 November 2024.
On 16 November 2022 at the trial of the proceeding at which Mr He did not appear, I ordered there be judgment for Aollande against Mr He in the amount of $1,505,750 together with interest pursuant to the Penalty Interest Rates Act 1983 (Vic) as from the commencement of the proceeding on 25 July 2019. The total amount of the judgment debt was $2,004,916.44 (‘the judgment debt’). In addition, I ordered that Mr He pay Aollande’s costs of the proceeding on a standard basis and that the sum of $105,000 paid into Court by Aollande on 22 February 2021 be released to it. The judgment debt and costs remain unpaid.
In support of the re-hearing application Mr He relied on his affidavits dated 31 July 2024 (‘July affidavit’), 20 September 2024 (‘September affidavit’) and 8 November 2024 (‘November affidavit’). Mr He was not required for cross-examination at the 25 October 2024 hearing. He was required for cross-examination and gave evidence remotely via an audio-visual link and with the assistance of an interpreter at the 26 November 2024 hearing.
In opposition to the application Aollande relied on the affidavit of its solicitor, BoJin Zhou, dated 22 October 2024. BoJin Zhou was not required for cross-examination.
At the hearing on 25 October 2024 Aollande relied upon oral evidence given on subpoena by a solicitor, Yang Chen of Interise Legal Pty Ltd (‘Interise Legal’). Mr Chen was cross-examined.
In the period between the October and November hearing dates, documents produced on subpoena by Mr Chen who until 7 October 2022 had acted as the solicitor on record for Mr He in the 2019 proceeding were made available to the parties. Some of the documents produced on subpoena were relied on by the parties in the course of the further hearing on 26 November 2024.
For the reasons that follow the application by Mr He for a re-hearing of the 2019 proceeding is refused.
The applicable principles
Although the application by summons dated 20 September 2024 is expressed as an application to ‘have the matter reheard’, in reality, the application is one to set aside the judgment obtained at trial on 16 November 2022 in circumstances where one of the parties, the defendant Mr He, was absent at the trial. Applications of that type are expressly addressed in r 49.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).
The applicable principles were helpfully summarised by Derham AsJ in TSC Nominees Pty Ltd v Canham Commercial Interiors Pty Ltd and Ors:[1]
[1][2017] VSC 86 (‘TSC Nominees’).
[42]Rule 49.02(2) of the Rules provides that the Court may set aside any judgment or order obtained ‘where a party is absent at the trial’. However, pursuant to r 49.02(3) an application under paragraph (2) ‘shall be made within 14 days after the trial’. The Court may extend any time fixed by the Rules, including the 14 day period fixed by r 49.02(3), ‘whether or not an application for the extension is made before the time expires’.
[43]The exercise of the power to set aside or vary any judgment, and to extend time to enable that, is discretionary.
…
[44] Rule 3.02 of the Rules provides, so far as is relevant:
(1)The Court may extend or abridge any time fixed by these Rules or by any order fixing, extending or abridging time.
(2)The Court may extend time under paragraph (1) before or after the time expires whether or not an application for the extension is made before the time expires.
[45]The overriding principle is what the interests of justice require. The four major factors that have been identified as relevant to the exercise of the discretion are the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to the other party. These four major factors are non-exhaustive.
…
[47]Where, as here, the discretion is conferred in unlimited terms, the question is whether it would be just in all the circumstances to grant or refuse the application. Necessarily, the indulgence is not granted as of course. It is for the party seeking to persuade the decision-maker to show that it should be granted.
…
[53]In considering the application to extend time within which to apply to set aside the judgment, the Court must seek to give effect to the overarching purpose prescribed by the Civil Procedure Act 2010 (Vic) (‘CPA’), which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. In making any order in a civil proceeding, the Court must also further the overarching purpose by having regard to the object of dealing with a proceeding in a manner which is proportionate to the complexity or importance of the issues in dispute and the amount in dispute. The overarching purpose has been applied in a variety of circumstances to reinforce the denial of relief to an applicant. Nevertheless, the just determination of the civil proceeding is the paramount object.
[54]The party seeking the extension bears the onus of proving that it should be granted. An extension will not be granted if the case is hopeless, unarguable or bound to fail, because it would be futile to grant the extension in those circumstances.
Setting Aside Judgment
[55]The guidelines that have been developed in the area of setting aside judgments obtained at trial where a party failed to attend, follow those identified by the Full Court in Rosing v Ben Shemesh, Kostokanellis v Allen and Ying v Perpetual Trustees Victoria Ltd. They are, in summary:
(a)the reason why the party failed to appear when the case was heard;(b) whether there had been any delay by the absent party in launching the application for a new trial;
(c) whether there was a bona fide issue to be tried; and
(d)whether the other party would be prejudiced by a new trial in any respect which could not be adequately compensated by a suitable award of costs and the giving of security.
…
[58]It is clear law that there is no point in granting the defendants’ application if the case is untenable or hopeless. On the other hand, that conclusion cannot be reached on a mere conflict of affidavits. Having regard to the changes brought about to the test for applications for summary judgment by the CPA, it may be that the appropriate test, as the defendants submitted, is whether the merit of the absent parties’ case can be described as one having a real as opposed to fanciful prospect of success.
The 2024 proceeding
Before turning to the re-hearing application it is important to refer to another proceeding instituted on 3 September 2024 by Aollande in which Mr He is also a defendant.
On 3 September 2024 Aollande initiated proceeding S ECI 2024 04626 (‘the 2024 proceeding’) against Mr He as the first defendant, M&A Family Pty Ltd (ACN 605 820 219) (‘M&A’) as the second defendant and Winzone Holdings Pty Ltd (ACN 633 716 748) (‘Winzone’) as the third defendant.
On 11 September 2024, a freezing order was made against Mr He in that proceeding, that order to remain in place until 4:00pm on 25 October 2024 or further order.
On 11 September 2024 an order was also made restraining Winzone from dealing with its shares in a company called Sonny Australia Investments Pty Ltd (ACN 603 071 101) (‘Sonny’). On 25 October 2024 the injunction restraining Winzone from dealing with its shares in Sonny was extended by agreement until further order or written agreement between Aollande and Winzone.
Sonny was incorporated on 26 November 2014. Since 2015 Sonny has been the registered proprietor of three parcels of land known as 99 Queen Street, Altona Victoria. The evidence before the Court on 11 September 2024 establishes that the land at Altona had been developed with three units, one of which was sold in 2023 and the other two of which are soon to be completed.
The second defendant in the 2024 proceeding, M&A, is a company incorporated on 13 May 2015 of which Patricia Yin Yu Ren ’is the sole director and shareholder. The statement of claim in the 2024 proceeding alleges that Ms Ren is either the spouse or former spouse of Mr He.
The statement of claim in the 2024 proceeding alleges, and evidence relied on in support of the freezing order establishes, that between 26 November 2016 and 12 July 2024 Mr He was a director of Sonny. On 12 July 2024 Mr He was replaced by Zijun Jia as the sole director and secretary of Sonny.
There are 100 issued shares in Sonny. Upon its incorporation in November 2014 Mr He owned all of the 100 issued shares in Sonny.
By a form lodged with ASIC on 3 March 2020 it is recorded that Mr He transferred his 100 shares in Sonny to M&A for consideration recorded as $100 and with a specified effective date of 15 January 2019.
By a form lodged with ASIC on 12 July 2024 it is recorded that Mr He resigned as a director of Sonny with a specified effective date of 8 February 2024 with the appointment of Mr Jia recorded as effective on 8 February 2024.
By a form lodged with ASIC on 15 July 2024 it is recorded that the 100 shares at that time held by M&A in Sonny were transferred to Winzone for consideration recorded as $100 and with a specified effective date of 8 March 2024.
In the 2024 proceeding Aollande seeks declarations that the transfers of the shares in Sonny from Mr He to M&A and from M&A to Winzone are void and set aside. Aollande alleges that both transfers constituted an alienation of property with the intention to defraud creditors, to the prejudice of Aollande, and are voidable pursuant to s 172 of the Property Law Act 1958 (Vic).
Contact between Aollande and Mr He between 2022 and 2024
Between 16 November 2022 and July 2024 there was no contact between Mr He and Aollande concerning the 2019 proceeding or judgment debt.
On 31 July 2024 Mr He swore an affidavit in the 2019 proceeding in which he said that he wished to set aside the 16 November 2022 judgment, that he wished to be able to file a counterclaim and that he only heard about the November 2022 decision ‘from a real estate agent’. He gave evidence that his new solicitors ‘only received a copy of the [November 2022] decision together with bankruptcy notice on 8 July 2022’.
Between around July 2024 and September 2024, Mr He sought to file documents in support of an appeal against the Order made on 16 November 2022. If documents in support of an appeal out of time were filed with the Court of Appeal, no appeal has been pursued.
The summons seeking a re-hearing was not filed in the Commercial Court until 20 September 2024, nine days after the freezing order against Mr He was made in the 2024 proceeding. At that time Mr He relied on his July affidavit and on his September affidavit. While filed in this proceeding the September affidavit bears the heading of the Court of Appeal.
The bankruptcy notice to which Mr He referred in his July affidavit was served upon him on 2 July 2024. Service was effected in accordance with an order for substituted service made by the Federal Court of Australia. The substituted service order provided for effective service of the bankruptcy notice by sending a copy of it and the accompanying documents to Ray White Altona, being the agent engaged to list the units on the Altona land for sale.
It was on 15 July 2024, shortly after substituted service of the bankruptcy notice, that a further ASIC Form 484 recording the transfer of the 100 shares in Sonny from M&A to Winzone was lodged.
A similar date and activity sequence is evident in relation to the earlier transfer of the shares in Sonny from Mr He to M&A.
The 2019 proceeding was commenced by Aollande on 25 July 2019. The ASIC form lodged by Mr He recording the transfer of his shares to M&A was lodged on 3 March 2020 but specified an effective date of 15 January 2019, an effective date prior to the institution of the 2019 proceeding.
It is unnecessary for present purposes to determine whether the apparent backdating of the 2019 share transfer (being that lodged on 3 March 2020) was related to the fact that Aollande had issued the 2019 proceeding against Mr He. It is also unnecessary to determine whether the apparent backdating of the share transfer in 2024 was related to the service of the bankruptcy notice.
It is sufficient for present purposes to say that the proposition that the backdated transfers of shares in 2020 and in 2024 were coincidental with the events to which I have referred seems unlikely.
The evidence on 25 October 2024
At the hearing on 25 October 2024 Mr He relied on the July and September affidavit.
In the July affidavit Mr He gave evidence including as follows:
7. On 19 January 2022, I moved to live in China to work as the project in Australia had not been successful. My mother who was unwell also needed my looking after in China.
8.I once used a Bigpond email [email protected] however I could not access any email from this email address. I am not sure if it was because I was in China. I informed Yang Chen that I could not receive email from the Bigpond email and told him to contact me via Wechat. We then communicated via Wechat.
9. After I arrived in China, there had been more COVID outbreaks and lockdowns and I suffer severe depression and hypertension. That exhibited herein and marked “LH-1” are copies of my medical certificates including medical prescriptions with NAATI translation.
10. From January to October 2022, Yang Chen knew that I was in China.
11. On 27 September 2022, via Wechat Yang Chen asked me to confirm my address and contact details including my Chinese mobile number. I provided him my Beijing, Haidian District, Qingqin Road address.
12. He also asked me if my address in Australia was 11 Alexander Road in Warrandyte. I told me that my address in Australia is 18 Longstaff Court in Doncaster East.
13. I have never received any Notice of Solicitor Ceasing to Act from Yang Chen via post, email or Wechat. He also never called me to inform me regarding a Notice of Solicitor Ceasing to Act document.
14.I have never received advice from Yang Chen about the effect of any such notice in writing or orally via wechat or mobile.
15. The only thing I received from him was forwarded letter regarding another matter on 6 October 2022.
16. I have never received any information or advice from Yang Chen regarding mediation or change of Court hearing dates.
17.I am now aware that Yang Chen filed a Notice of Solicitor Ceasing to Act on 7 October 2022, and that there was an order made by Justice Delany on 4 October 2022. However Yang Chen never provided me a copy of the orders made on 4 October 2022.
18. I was not informed of any trial dates or changes or date of trial.
…
21. To communicate with me, Yang Chen took screenshots of emails from otherside’s solicitor and sent to me via Wechat, and not forward emails to me.
In the September affidavit, Mr He gave evidence including as follows:
2.I say that between late (November) 2022 to mid (July) 2024, for the period of just over a year and a half, I had not done anything because I was suffering medical conditions that did not enable or support my doing more on this case. The Plaintiff knew I was in China and had my Wechat and contact details in China and neither the Plaintiff nor its lawyers ever contacted me to inform me of a hearing, outcome of hearing, or anything to do with the matter.
3. I admit that in the absence of any adverse updates or information, and to follow medical advice that I avoid stress to avoid deterioration of my health, including stroke, I did not have the mental or physical capacity to deal with the matter as I was of the impression that the matter have been paused.
4.Had I been informed that there was going to be hearing, or there was an outcome from a hearing, I would probably have had no choice but to take further actions despite my health.
5. My having been on drugs to treat my medical conditions also did not support my capacity.
…
Much of the evidence given by Mr He in the July affidavit including in the paragraphs reproduced above was directly contradicted by oral evidence given by Mr Chen on 25 October 2024.
Mr Chen gave evidence that he acted for Mr He in the 2019 proceeding and in another proceeding in this Court, Jieyun International Investments Pty Ltd v Toorak Development Group Pty Ltd and ors Jieyun International Investments Pty Ltd (‘Jieyun International proceeding’).[2]
[2][2022] VSC 387.
On 11 July 2022, Riordan J entered judgment against Mr He in the Jieyun International proceeding for over $150,000 plus costs.
Mr Chen gave evidence that on 4 October 2022, Mr Shaun Clement of counsel appeared on behalf of Mr He in the 2019 proceeding, instructed by Mr Chen. Mr Clement sought an adjournment of the trial of the 2019 proceeding, at that time fixed to commence on 14 November 2022. The application for an adjournment made by Mr He was supported by an affidavit made by him dated 3 October 2022.
At the same hearing on 4 October 2022 Mr Chen appeared on behalf of his firm, Interise Legal, seeking leave for his firm to file a notice of ceasing to act as the solicitor on record for Mr He.
I interrupt the discussion of the evidence given by Mr Chen on 25 October 2024 to note that on 4 October 2022 various orders were made including an order fixing the proceeding for judicial mediation to be held prior to 30 November 2022.[3] An order was made granting leave to Interise Legal to file a notice of ceasing to act. Leave was granted having regard to a confidential affidavit made by Mr Chen dated 26 September 2022 (‘confidential affidavit’).
Later, on 28 October 2022 the trial date of 16 November 2022 was allocated.
On 25 October 2024 Mr Chen gave evidence that after he received a copy of the Order made on 4 October 2022 on 7 October 2022, he sent a copy of the Order and of the notice of ceasing to act dated 7 October 2022 (‘the notice’) to Mr He. Mr Chen said he provided a brief description of what the Order meant. He informed Mr He that Mr He was required to attend the judicial mediation personally and that Mr He was to act on his own behalf from that day onwards. Mr Chen gave evidence that he told Mr He these things by email on 7 October 2022 and that he had also told Mr He these things in private conversations before he ceased to act.
Mr Chen gave evidence that he did have further contact with Mr He after 7 October 2022, but not in relation to this matter.
I again interrupt my discussion of the evidence given by Mr Chen on 25 October 2024 to refer to an email sent by Mr Chen to Mr He at [email protected] (‘BigPond email address’) on 7 October 2022. The email was produced on subpoena by Interise Legal, made available to the parties prior to the hearing on 26 November 2024. Omitting the formal parts, the email from Mr Chen to Mr He reads:
Please find attached latest orders made. The following is a summarisation of the orders:
1.Interise Legal Pty ltd may file and serve notice of ceasing to act.
2.Trial commencing on 14 November 2022 is vacated.
3.Orders requiring parties to file written outlines of opening is vacated.
4.Orders requiring parties to confer chronology is vacated.
5.You and the plaintiff are to attend judicial mediation by 30 November 2022.
6.You must attend personally.
7.You must email [email protected] with your details and anyone else attending.
8.If you cannot attend on 30 November 2022, you must email the court.
9.If there is non-compliance with the time table, you are to confer with other party or to email the Associate to Justice Delany.
10.No order as to costs for Interise Legal’s application
11.The plaintiff’s costs thrown away as a result of vacation of trial is to be reserved.
12.A further direction is listed for 9 December 2022 by which you must tell his honour whether you expect to have a legal representation at trial which is expected to be listed for Feb or March 2023 with estimate of 6 days.
If you have any question, please do not hesitate to contact us.
Questioned directly on 25 October 2024 about the statement by Mr He in paragraph 8 of his July affidavit that he could not access his BigPond email address, Mr Chen said that was not true as at October 2022 as it was only later that Mr He told him he could not get emails.
It was Mr Chen’s evidence he sent the email on 7 October 2022 at a time before he was told by Mr He that Mr He could not access that the BigPond email address. Mr Chen said he had been communicating with Mr He using that email address, he thought that he did so on 2 October 2022 and sending a Zoom link to him to that email address on that day seemed to be ‘okay’.
Mr Chen disagreed with the evidence in the July affidavit where Mr He said that he never received the notice and that Mr Chen never called to inform him about that. Mr Chen said he sent the email on 7 October 2022 and had a telephone call to discuss that he was ceasing to act and the consequences that would flow following the Order made on 4 October 2022.
In cross-examination Mr Chen agreed that from the end of September or October 2022 he knew that Mr He was in China. Mr Chen said his contact with Mr He was by email, WeChat and through calls. Mr Chen said that if a video call was needed that would take place via Zoom and not via WeChat.
Mr Chen could not recall ever calling Mr He by WeChat and said that he would call Mr He’s Australian telephone number.
In cross-examination on 25 October 2024 Mr Chen said that he provided an email address for the Court to Mr He. Mr Chen said he thought the email address was that of the Alternative Dispute Resolution (‘ADR’) email address of the Supreme Court of Victoria, to enable Mr He to arrange a mediation. The 7 October 2022 email set out above confirms of that oral evidence given by Mr Chen.
Mr Chen gave evidence that as best as he could recall he also provided Mr He’s address in China to the Court in his confidential affidavit dated 29 September 2022 in support of leave to file a notice of ceasing to act.
Mr Chen’s evidence about the contents of his confidential affidavit is correct.
The Interise Legal subpoena to produce documents
The subpoena to produce documents directed to the proper officer of Interise Legal dated 2 October 2024 (‘Interise Legal subpoena’) required the production of the Interise Legal file relating to the 2019 proceeding for the period 19 January 2022 to 16 November 2022 including but not limited to all correspondence, whether an email, letter or in any other form, regarding any court hearing dates, and the notice filed on behalf of Mr He on 7 October 2022.
The documents produced to the Prothonotary by Interise Legal in response to the subpoena, while available at the office of the Prothonotary on 25 October 2024, were not available to the parties or to the Court when Mr Chen gave his oral evidence on 25 October 2024.
The hearing on 25 October 2024 concluded with the solicitor who appeared for Mr He being provided with an opportunity to inspect the subpoenaed documents and, if so instructed following that inspection, to tender documents and to make further submissions in support of the application.
There was some delay in the provision of submissions. On 8 November 2024 the solicitor acting on behalf of Mr He applied to rely on the November affidavit and the exhibits to that affidavit.
The substance of the November affidavit was to seek to contest aspects of the evidence given orally by Mr Chen on 25 October 2024. The exhibits to the November affidavit include extracts from Mr He’s copy of WeChat communications passing between Mr He and Mr Chen in 2022 not previously exhibited.
In submissions dated 12 November 2024 Aollande opposed leave being given to Mr He to rely on his November affidavit. In the alternative, if the November affidavit was received into evidence, Mr He would be required for cross-examination.
Having considered the further submissions and the November affidavit and exhibits I determined to permit Mr He to rely on his November 2024 affidavit on the condition that he was available for cross-examination.
On 20 November 2024 the parties were advised by email of my decision and were advised the matter could be heard on 26 November 2024 with an allocated time of no more than two hours.
Upon being notified that the receipt of the November affidavit was conditional upon Mr He being available for cross-examination, the Court and Aollande were informed that Mr He is currently in the People’s Republic of China and that Mr He wished to give evidence by audio-visual link.
Aollande did not object to Mr He giving evidence remotely from the People’s Republic of China by audio-visual link.
Prior to the hearing my Chambers was informed that an interpreter from Mandarin to English would be required to assist Mr He when giving evidence. As the parties were unable to agree upon the identity of a suitable independent interpreter, my Chambers provided contact details of a suitably qualified interpreter. Arrangements were made for that interpreter, May Chen, to interpret when Mr He gave evidence.
Evidence given remotely by Mr He from the People’s Republic of China
When the hearing resumed on 26 November 2024 and before Mr He commenced giving evidence I informed the parties that I had given consideration to whether there were issues that needed to be taken into consideration by reason of the fact that Mr He proposed to give his evidence remotely from the People’s Republic of China.
Recently, in the decision in Sunnya Pty Ltd, Williams J declined to permit evidence to be given remotely in the Supreme Court of NSW by a witness who was proposing to do so from the Hong Kong Special Administrative Region of the People’s Republic of China. [4]
[4]In the matter of Sunnya Pty Ltd [2023] NSWSC 1286 (‘Sunnya’).
Williams J said that her Honour was following the decisions in Wang Chunfeng v Law Society of New South Wales[5] and Motorola Solutions, Inc. v Hytera Communications Corporation Ltd,[6] and on that basis determined that evidence proposed to be given by the witness in Hong Kong should not be permitted.
[5][2022] NSWSC 986 (‘Wang Chunfeng’).
[6]Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Adjournment) [2020] FCA 539 (‘Motorola’).
I consider the decision in Sunnya is distinguishable. It turns on the New South Wales legislation of which there is no equivalent in Victoria. Unlike the New South Wales legislation, the relevant Victorian legislation does not constitute the place where a person is giving their evidence, in this case in the People’s Republic of China by video link remotely, as a place where the Supreme Court of Victoria is sitting.
The position concerning evidence to be taken by video link in Victoria from a witness located overseas was recently considered by Gobbo AsJ in Grege v Grege.[7] In that case her Honour considered an application to take evidence by video link from two witnesses in Lebanon. Attention was given to s 42E of the Evidence(Miscellaneous Provisions) Act 1958 (Vic). That section provides:
(1) Subject to section 42F and to any rules of court, a court may, on its own initiative or on the application of a party to the legal proceeding, direct that a person may appear before, or give evidence or make a submission to, the court by audio-visual link or audio link from any place within or outside Victoria, or outside Australia, that is outside the courtroom or other place where the court is sitting.
(2) A court must not make a direction under subsection (1) unless it is satisfied that the technical requirements specified in section 42G are met, or can reasonably be met, in the case of the particular link.
(3) The court may, at any time in the course of a proceeding, vary or revoke a direction under subsection (1) either on its own initiative or on the application of a party to the proceeding.
(4) Without limiting subsection (3), circumstances in which a court may vary or revoke a direction under subsection (1) include the failure of the link to which the direction relates.
(5) Each party to a proceeding may address the court in respect of the making, variation or revocation of a direction under subsection (1).
[7][2024] VSC 475.
Gobbo AsJ referred to the earlier decision of Gordon J who, when a judge of the Federal Court in Kirby v Centro Properties Ltd,[8] identified some of the factors a Court may take into account in exercising its discretion to allow evidence via video link:[9]
(1)the employment commitments of an overseas witness;
(2)whether the credibility of the witness is in issue;
(3)whether the witness’ evidence will be “centrally important” to the case;
(4)whether the use of video link may frustrate or delay the management of documents in cross-examination.
[8](2012) 288 ALR 601 (‘Kirby’).
[9](2012) 288 ALR 601, 604-605.
In Grege v Grege[10] Gobbo AsJ also referred to the decision of the full Federal Court in Joyce v Sunland Waterfront (BVI) Ltd.[11]
[10][2024] VSC 475.
[11](2011) 195 FCR 213 (‘Joyce’).
At first instance in Joyce Logan J thought that without evidence that the United Arab Emirates (‘UAE’) government had no objection to Mr Joyce who was at that time living in the UAE and prevented by his bail conditions from travelling to Australia to participate in the Australian proceedings that he should not permit evidence to be received from Mr Joyce pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth). On appeal the Full Court said:[12]
Section 47A of the [Federal Court of Australia Act] confers the power to allow testimony to be given by video link, audio link or ‘other appropriate means’. It specifically authorizes the exercise of this power where the person giving the testimony is in a foreign country. There are express provisions permitting the Court to dispense with the requirement for an oath or affirmation where the law in force in the foreign country does not permit such a course, or where it would be inconvenient, because of a law of that country for a person to give evidence on oath or affirmation. However the legislation does not require that the foreign state consent to a person within its borders giving evidence by video link to an Australian court. If the Parliament perceived any problem arising out of the concept of sovereignty or that of comity, then it seems to have overridden any obligation which Australia may have had in that regard. In our view, s 47A authorizes this Court to take evidence on oath or affirmation from a person located in any other state, save where the law of that state prohibits or makes inconvenient the giving of evidence on oath or affirmation. In that case, the Court may dispense with the oath or affirmation. We see no justification for imposing upon the exercise of the discretion conferred by s 47A, a requirement that the other state consent to the taking of evidence in that way.
Of course, if the law of a foreign state prohibits a person within its borders from participating in such a process, then problems might arise. That is not the present case…
In those circumstances we conclude that in exercising the discretion pursuant to s 47A, the Court is not hampered by any need to consider questions of sovereignty or comity between nations, at least absent any law forbidding such conduct, and subject to the question of whether an oath or affirmation should be required…
[12](2011) 195 FCR 213, 71–72 [60]–[62] extracted from decision of Gobbo AsJ [28].
Section 42E of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) permits the giving of evidence by audio-visual link, where the witness in question is a party who wishes to give evidence by audio-visual link from outside Australia. That is what Mr He desired to do in this case. The plaintiff raised no objection to the course proposed. There was no expert evidence that for Mr He to give evidence in the manner proposed from the People’s Republic of China would or might contravene domestic Chinese law.
But for the subpoenaed documents the hearing would have concluded on 25 October 2024. The considerations identified by Gordon J in Kirby notwithstanding, including that the credibility of Mr He is in issue and that his evidence will be ‘centrally important‘ to the case, there being no objection to his giving evidence remotely I determined it appropriate to proceed with the evidence of Mr He via audio-visual means as proposed.
At the outset of the hearing I made an order for the receipt of Mr He’s evidence by audio-visual means pursuant to s 42E of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).
Further evidence received on 26 November 2024
When Mr He gave evidence on 26 November 2024, his evidence was interpreted by Ms Chen from Mandarin to English. When he was referred to documents in the course of his evidence, Mr He was able to view those documents and to respond to questions concerning them.
In evidence in chief Mr He adopted his November affidavit. He was cross-examined on that affidavit and the earlier affidavits filed by him dated 31 July 2024 and 20 September 2024. He was also cross-examined on his 3 October 2022 affidavit in support of an adjournment of the trial of the 2019 proceeding at that time fixed to commence on 14 November 2022.
When cross-examined Mr He first said that he was not aware on 3 October 2022 that the proceeding was set down for trial on 14 November 2022. Directed to paragraph 25 of his 3 October 2022 affidavit he then said he could now recall that he knew this was the case.
Mr He was then asked if it was correct that if an adjournment was not granted in response to the application supported by his 3 October 2022 affidavit, that he was going to try to participate at the 14 November 2022 trial by video. His response was that he did not understand this.
Directed to paragraph 26 of his 3 October 2022 affidavit in which he gave evidence that if an adjournment was not granted he would participate via video link Mr He then said that evidence was correct but that he was under the impression the case was ’postponed’ or ’dismissed‘ or ’withdrawn’.
In his September affidavit Mr He gave evidence that he was of the impression that the 2019 proceeding had been ’paused’.
If, as is fundamental to his re-hearing application, no one told Mr He what happened at the hearing on 4 October 2022 there was no basis for Mr He to suppose or believe that the 14 November 2022 case was postponed, paused, withdrawn or dismissed.
As a litigant bound by the overarching obligations in the Civil Procedure Act 2010 (Vic) including the obligation in s 25 to act promptly and to minimise delay, Mr He was bound to get in touch with the Court, with the plaintiff's solicitors or with his former solicitors and to make arrangements to participate in the 14 November 2022 trial by video link. He took none of those steps. He did nothing about the 2019 proceeding until the bankruptcy notice arising out of it came to his attention in July 2024.
The fact, as put to Mr He in cross-examination, is that from October 2022 until service of the bankruptcy notice in July 2024 Mr He studiously ignored the 2019 proceeding.
When asked who told him the case was postponed or dismissed Mr He said this was based on his judgment or his ’take’ of the situation. If no one told Mr He about the Order made on 4 October 2022 and if he did not receive the email from Mr Chen on 7 October 2022 a copy of which is reproduced above, then he had no basis to consider or believe or to proceed on the assumption that the 14 November 2022 trial date had been postponed or that the 2019 proceeding had been dismissed.
Mr He said that when the lender failed in the Jieyun International proceeding he was under the impression the lender cancelled the 2019 case as there was little or no chance of success and no one updated him about the case. The problem about that evidence is that the decision by Riordan J in the Jieyun International proceeding was delivered on 11 July 2022. Months later, on 3 October 2022 the 2019 case was still proceeding to trial on 14 November 2022 and Mr He made an affidavit wanting to have the trial of the 2019 proceeding adjourned.
I reject as untrue the evidence given by Mr He that he was under the impression the 2019 proceeding was cancelled or had been dismissed.
In his July affidavit Mr He gave evidence that he was never provided with a copy of the Order made on 4 October 2022. It was his evidence that he never received a copy of the notice from Mr Chen by post, email or by WeChat and that Mr Chen never called to inform him about that notice. He said he never received advice from Mr Chen about the effect of any such notice in writing or orally, via WeChat or mobile and the only thing he received from Mr Chen was a letter regarding another matter on 6 October 2022.
When giving evidence on 25 October 2024 Mr Chen denied the truth of the affidavit evidence of Mr He to which I have referred. Mr Chen said that he called Mr He on his mobile and sent a copy of the notice.
I reject Mr He’s evidence in his July affidavit, confirmed in his oral evidence on 26 November 2024, that no one told him about the change to the trial date or about what occurred at the hearing on 4 October 2022. I reject his evidence given orally that no one notified him that the trial would not go ahead and that he did not receive any communication from anyone via WeChat, telephone or email.
For me to accept that evidence from Mr He would require me to reject evidence given by Mr Chen, on subpoena. It would require me to accept evidence from Mr He that he did not receive emails at his BigPond email and it would require me to disregard evidence of WeChat messages about which Mr He was cross-examined. There is no proper basis for me to do any of those things.
The assertion by Mr He that he could not access any email from his BigPond email was said by Mr Chen not to be correct. It was Mr Chen’s evidence that on 2 October 2022 he sent a Zoom link to Mr He’s BigPond email. It was his evidence that it was not until later that Mr He said he could not access emails from that email address.
In response to the allegations by Mr He that he once used the email [email protected] but then could not access emails from that address and told Mr Chen to contact him via WeChat, Mr Chen gave evidence that at the time he emailed Mr He on 7 October 2022 with the notice, Mr He had not told him that he was no longer able to access the BigPond email.
As the later cross-examination of Mr He showed, Mr Chen’s evidence was true and correct.
I accept the evidence given by Mr Chen.
I reject Mr He’s evidence that ‘my Bigpond email did not work and had not worked for some time’.
Mr He exhibited a 12 May 2022 WeChat message to his 8 November 2024 affidavit. That message said:
Could you please send me your and David’s invoices for 1/3 month again. There’s some problems with my email.
Contrary to the case for Mr He, the message relied on by him did not ‘clearly’ say Mr He could no longer access that email address. That is because he could do so and because he continued to use his BigPond email.
When cross-examined on 26 November 2024 about the circumstances in which he affirmed his 3 October 2022 affidavit Mr He said it had been over two years and he had no recollection of affirming the affidavit by video. He said it was ’possible‘ to have been affirmed by video or electronically signed but he could not remember. When it was put to him that he had a video conference with Mr Chen on 3 October 2022 Mr He said he could not ’completely confirm’ because he could not recollect such a conference.
When it was put to Mr He that he was using and receiving emails on his BigPond email in October 2022 Mr He said that he had no recollection of having used his BigPond email to access emails at that time.
The affidavit dated 3 October 2022 was sent twice to Mr He to affirm. First on 22 October 2022 and then on 3 October 2022.
The documents put to Mr He in cross-examination establish that he was sent a Zoom link by Mr Chen to again affirm the affidavit by email to his BigPond address at 11:22 am on 3 October 2022 Melbourne time. Earlier, at 6:57am Beijing time Mr Chen had messaged via WeChat, that the document needs to be signed again. Two minutes after the email with the link was sent, at 11:24am, Mr Chen messaged via WeChat ‘I’ve sent it‘. At 11:32am the signed affidavit was sent back via WeChat to Mr Chen.
I reject the oral evidence of Mr He that the Zoom link was sent to him via WeChat as untrue. There was no record of that having occurred on either copy of the WeChat messages. There was no record of a WeChat call. I accept Aollande’s submission that the time of the Zoom link fits perfectly with the Zoom link both having been sent to and accessed by Mr He at his BigPond email.
On the previous day, 2 October 2022 at 4:04pm Mr Chen sent a Zoom link to Mr He on WeChat. The immediate response from Mr He on WeChat was ’email‘. At 4:06pm Interise Legal sent a link via email as instructed by its client. The affidavit was sent back at 4:21pm via WeChat.
I accept the submission on behalf of Aollande that items 77 and 78 of the subpoenaed documents do not show that Mr Chen sent a Zoom link to Mr He by WeChat as submitted on behalf Mr He. Documents 77 and 78 are emails, soft copies of which were produced on subpoena.
I do not accept Mr He’s evidence that he did not receive emails sent to his BigPond email and that he never knew about and did not receive a copy of the notice.
As submitted on behalf of Aollande between 29 September 2022 and 7 October 2022 Mr Chen sent a number of emails to Mr He at his Bigpond email. He sent emails on 29 September 2022 at 12:07pm enclosing a copy of the summons, confidential submissions and confidential Affidavit of Mr Chen affirmed 29 September 2022 and proposed orders. On 2 October 2022 at 3:36pm he sent an email with a Zoom link. On 3 October 2022 at 11:23am he sent another email with a Zoom link and on 7 October 2022 at 4:31pm he sent an email attaching a copy of the notice of ceasing to act and a bill. Mr He responded to the emails when making his affirmation on both 2 and 3 October 2022.
Having regard to the documentary evidence to which I have referred and the evidence of Mr Chen, the truth which I accept, I reject as untrue the evidence given by Mr He that he was not using and could not access his BigPond email in October 2022. I find that not only could he access his BigPond email account, he used that account and asked his solicitor Mr Chen to use the BigPond email in communications with him. It was to that email that Mr Chen sent the notice and information concerning the outcome of the hearing on 4 October 2022 on 7 October 2022.
I find that Mr He received the 7 October 2022 email and the documents attached.
In his November affidavit Mr He said that his Australian mobile was no longer in use, that Mr Chen was well aware of that from April or May 2022 and that he and Mr Chen ‘used WeChat essentially for all communications’.
When he gave evidence on 26 November 2024 contrary to his affidavit evidence that his Australian mobile was no longer in use, Mr He said that he still had his Australian mobile number but it was on silent setting. He said he would tell his friends they could call him on his Australian mobile but without appointments or agreement his mobile was ‘not working’. He then said that his Australian mobile was not being used because international roaming was too expensive and was only used on two occasions, which he did not elaborate on, during his three years in China.
Amongst the problems with Mr He’s evidence concerning his use of his Australian mobile phone number is that on 27 September 2022 when Mr Chen asked him to confirm if all pieces of information, being his contact details including that telephone number were still correct, Mr He corrected his address in Beijing but did not correct the reference to his Australian mobile. Later that day when asked by Mr Chen if the ‘shipping address’ in Australia is still 11 Alexander Road Warrandyte, Mr He responded with an address at 18 Longstaff Court Doncaster East.
In cross-examination Mr He said and I accept, that he gave the Doncaster East address because he knew his solicitor wanted that information because he was proposing to go off the record. It is telling that he changed his residential address in Australia and told Mr Chen about that but he did not correct the information concerning his Australian mobile despite Mr Chen’s request that he correct any information that needed updating and despite knowing the purpose for that request.
These are not the only examples of evidence given by Mr He that cannot not be safely acted on. Important aspects of the evidence given by Mr He are contradicted by contemporaneous documents.
Perhaps the clearest example of documents contradicting Mr He’s affidavit evidence concerns paragraph 12 of his July affidavit. In that paragraph Mr He gave evidence ‘I told me that my address in Australia is 18 Longstaff Doncaster East’. It is correct that in September 2022 that was the address given by Mr He. However, that is only part of the story.
When he made his further November affidavit Mr He exhibited some extracts from WeChat messages in Chinese characters passing between he and Mr Chen in October 2022 together with a certified translation of those messages. The last message exhibited by Mr He to his affidavit and translated was exchanged at 8:55am on 3 October 2022 Beijing time according to his WeChat time record. Mr He’s WeChat record exhibited to his November affidavit is translated as follows:
do you want to change the mailing address to which its best to only keep the address in China, followed by
The words ‘followed by’ suggest that there was a further part to the communication which is missing from the exhibit. The answer is provided when regard is had to the corresponding WeChat messages produced by Mr Chen on subpoena.
What comes after the words that translate to ‘followed by’ are further Chinese characters. During the hearing the interpreter interpreted the missing words:
You want to amend the postal address exactly which – to which address. Keep – just – just – it’s best to just keep the Chinese one, and followed by that Warrandyte one. Just to confirm again the Warrandyte address – 11 Alexander Road, Warrandyte.
The Warrandyte address is the address that Interise Legal specified in the notice dated 7 October 2022. It is the address Mr Chen was told to use by Mr He on 3 October 2022 where in his oral evidence Mr Chen said Mr He’s wife and daughter were living. The evidence in paragraph 12 of Mr He’s July affidavit is false.
Rule 20.03(2) of the Rules provides that a notice of solicitor ceasing to act shall state the address of the party last known to the solicitor. The Warrandyte address was the address of Mr He last known to Mr Chen and of which he was advised by Mr He in WeChat messages exchanged on 3 October 2022.
Consideration
The trial of the 2019 proceeding which went ahead as an undefended matter on 16 November 2022 took place after Mr He failed to communicate with the Court or with the solicitors for the plaintiff after Interise Legal ceased to act on his behalf.
It was not until two years later that Mr He again took an interest in the 2019 proceeding. While there is power to extend time beyond the 14 days specified in r 49.02, it is for the party seeking to persuade the decision-maker to show that an indulgence to permit an application to be made out of time should be granted.
In this case there is general evidence from Mr He that he was in China, that it was in lockdown and that he had various health issues. Curiously those health issues were not relied upon by him in his 3 October 2022 affidavit. At that time Mr He sought an adjournment on the basis of health issues involving his elderly mother.
The supplementary submissions on behalf of Mr He received on 27 November 2024 refer to health issues and lockdowns. I do not accept the evidence about these matters provides a satisfactory basis for the court to permit an application to set aside the 2022 judgment in the 2019 proceeding after nearly two years and with no contact in the intervening two years by Mr He with either the Court or with Aollande and its solicitors. For that reason, the application being well and truly out of time, it should be refused.
However, there are more important matters of substance why even if time were to be extended, there is no proper basis to set aside the judgment. Taking the criteria summarised by Derham AsJ in TSC Nominees:
(a) I do not accept Mr He’s explanation about the reason why he failed to appear at the trial. If I accepted his evidence at face value he should have been contacting the Court and making sure a video link was in place before the scheduled 14 November 2022 trial. I do not accept his evidence. I find that he knew the trial date been vacated, he knew he had an obligation to make arrangements to participate in a mediation, he had the relevant email address of the ADR centre and he did nothing.
(b) There was a delay in launching the application for a new trial. The delay was a delay of nearly two years. It is apparent that Mr He’s actions taken commencing in July 2024 were actions taken because of the enforcement proceedings against him for bankruptcy in the Federal Court. As earlier mentioned, I do not accept the validity of the explanation for his delay.
(c) Importantly, as I will elaborate on below I do not accept there was a bona fide issue to be tried in the 2019 proceeding or that Mr He has demonstrated he has real prospects of success in the proceeding if the 2022 judgment is set aside.
(d) Aollande, which has the benefit of the judgment and has bankruptcy proceedings on notice, would be very significantly prejudiced by an order for a new trial. Given that Mr He is apparently resident in China and given that he appears to have disposed of his shares in Sonny, the only way security in an appropriate form could be provided as a condition of setting aside the judgment would be for Mr He to pay the whole of judgment amount, together with interest since that time and costs into court. There was no suggestion by Mr He that he was willing or able to do so. The most recent submissions on his behalf made on 27 November 2024 proposed the freezing order in the 2024 proceedings remain in place until the hearing and determination of the reheard 2019 proceeding. If there was a valid disposition of shares by Mr He, he no longer owns any shares in Sonny. Winzone has already agreed to an injunction pending the hearing and determination of the 2024 proceeding. The ‘offer’ by Mr He with respect to the freezing order in the 2024 proceeding provides no proper security in support of an order setting aside the judgment in the 2019 proceeding.
The primary submission relied on in support of a re-hearing is that there is prima facie merit in Mr He’s defence. The problem with that submission is that no evidence other than assertions on affidavit has been filed by or on behalf of Mr He to provide substance in support of that submission.
I reject the proposition there is any evidence that Mr He has a defence of substance on the merits as submitted on his behalf in the 8 November 2024 submissions.
The fact the Court may have set aside 5 – 10 days for a hearing says nothing about the merits of the defence.
When determining the application I do not place weight on the assertion that Aollande made false allegations of misleading and deceptive conduct. Nor do I place weight on the assertion by Mr He in his July affidavit that ‘I had lost approximately $3 million and now wishes(sic) to file a counterclaim’.
The Court file in the 2019 proceeding reveals that Mr He filed a defence to the 2019 proceeding on 1 October 2019 prepared by R Heath and S Clement of counsel, filed on his behalf by Interise Legal. An amended defence was filed on 20 May 2022 amended by S Clement of counsel.
Although in his July affidavit Mr He said that he sought leave to file a counterclaim, no counterclaim was filed at the time of Mr He’s original defence in 2019, at the time of his amended defence in May 2022 or at any time prior to the trial of the proceeding at which he did not appear. No draft counterclaim is exhibited to any of his affidavits and there is no evidence at all to substantiate a defence or counterclaim.
No details are provided and no information is set out in any of the three affidavits made by Mr He in support of the re-hearing application that would provide a proper basis to substantiate a counterclaim, whether for $3 million or for some other amount.
Because there is no evidence that there is any defence on the merits, and Mr He has had since at least July 2024 to file and serve such evidence, the interests of justice require that the application be refused.
As to the second matter relied on in the 8 November 2024 submissions, I do not accept there are any issues of procedural fairness or natural justice arising from the fact that the 2022 trial of the proceeding took place without participation by Mr He. The reason that occurred is because Mr He took no steps to contact the Court, to contact Aollande or to defend the proceeding after Interise Legal was granted leave to cease to act.
As I have found in my discussion of the evidence, Mr He knew what happened at the 4 October 2022 hearing. He was informed about that by Mr Chen.
In Mr He’s most recent submissions it is said that the email sent on 7 October 2022 was in English characters rather than in Chinese characters. While that is the case, at the start of his evidence Mr He demonstrated capacity to understand English. He chose to make his affirmation in the English language without needing the assistance of the interpreter. He was not asked about his ability to read or understand English. His affidavits do not say they were translated from English to Mandarin. The WeChat messages include the passing of information in English characters. There is no substance to the procedural fairness/natural justice ground referred to in the submissions.
Contrary to the submissions on behalf of Mr He, it is not the case that the address and email provided by Interise Legal when giving notice of ceasing to act were incorrect. I do not accept the submission that the notice was defective or that the notice supports a re-hearing and ‘significantly mitigates against Mr He’s actions in this matter’.
For the reasons previously discussed, I reject the evidence of Mr He relied on in submissions that he did not receive any Zoom link on 3 October 2022 and that no Zoom meeting took place.
There is no substance to the submission that Mr Chen lacked credibility, veracity and reliability. I found Mr Chen to be an honest witness. The documents produced on subpoena confirmed that he acted diligently and appropriately in circumstances where his client had refused and failed to place him in funds to brief counsel to appear at the trial.
I do not accept the submission that Mr He received inadequate advice from Mr Chen. I certainly do not accept the submission that the subpoenaed material in any way supports the allegation that Mr Chen engaged in unsatisfactory conduct. There is no proper basis for such a submission and it should not have been made.
In his November affidavit Mr He made allegations that his former solicitor Mr Chen ‘gave false evidence and cannot be trusted’ and that Mr Chen sent an email to his BigPond email enclosing a notice of ceasing to act on 7 October 2022 ‘knowing that I would not receive it’.
Not only was there no reason for Mr Chen, a solicitor, giving evidence under subpoena, to give false evidence. There was also no reason for Mr Chen to send an email to Mr He’s BigPond email ‘knowing that I would not receive it’. The attack on Mr Chen’s evidence in the November affidavit is scurrilous and without any foundation whatsoever. It is also contrary to the documentary evidence concerning the use by Mr He of his BigPond email address.
Documents produced on subpoena by Interise Legal, not available at the time Mr Chen gave his oral evidence both contradict Mr He’s affidavit evidence and confirm the accuracy of Mr Chen’s oral evidence.
In his 29 September 2022 confidential affidavit in support of leave to cease to act, Mr Chen gave evidence that on 22 May 2022 he advised Mr He of the, then, new trial date, by forwarding the Court’s email listing the matter on that day and later informing him over the telephone. Various requests to be placed in funds for the trial of the proceeding, including an extension of time for that to occur to 15 September 2022 did not result in Mr He placing Interise Legal in funds. On 26 September 2022 Mr Chen wrote to the Court and to the solicitors then representing Aollande advising that he intended to cease acting. The confidential exhibits to the 29 September 2022 affidavit provide contact details of Mr He at an address in China, his Chinese telephone number and his Australian mobile. All of those matters were true.
On 7 October 2022 Interise Legal filed the notice of ceasing to act as the solicitors for Mr He in the 2019 proceeding. The notice said ‘the last known address and address for service of the defendant is 11 Alexander Road, Warrandyte Vic 3113. The last known email address for service of the defendant is [email protected].’ Those statements were true.
The WeChat messages that have been produced show that Mr Chen was diligent in his communications with his then client concerning his proposal to file a notice of ceasing to act. I accept his evidence that he notified Mr He about the order that was made when the Court granted leave to him to cease to act.
I found Mr He to be an unsatisfactory witness. He waited for nearly two years until after the 2019 proceeding was fixed for trial to take any step to enquire after the 2019 proceeding or to apply to set aside the judgment against him. His explanation as to why he did not take any action until he became aware of bankruptcy proceedings against him in mid-2024 is not credible. Where his evidence contradicts evidence given by his former solicitor, Mr Chen, or contemporaneous documents as outlined in my consideration of the evidence it is not safe to act on it and I will not to do.
The appropriate order is to dismiss the application.
Aollande is entitled to its costs.
By 4:00pm on 4 December 2024 Aollande should file and serve submissions of no more than 3 pages setting out the costs orders for which it contends.
By 4: 00pmon 11 December 2024 Mr He should file and serve any responding submissions of no more than 3 pages as to costs.
I will deal with any costs issues on the papers.
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