Aollande Pty Ltd v He - [2024] VSC 736

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aollande Pty Ltd v He

Details

AGLC: Aollande Pty Ltd v He [2024] VSC 736
Case: [2024] VSC 736
Decision Date: 28 November 2024 (ex tempore)

CaseChat Overview and Summary

Aollande Pty Ltd brought an application against He for various claims arising out of a business relationship. The defendant failed to appear at the trial, prompting the plaintiff to seek judgment in default. The defendant subsequently applied to set aside the default judgment, providing an explanation for the failure to appear and submitting a defence on the merits. The matter was heard in the Supreme Court.

The court was required to determine whether the defendant's explanation for failing to appear at the trial was satisfactory and whether the defence on the merits was substantiated. The court noted that the defendant's explanation for not appearing at trial was not satisfactory, as it was deemed to be a case of neglect rather than an unavoidable circumstance. Additionally, the court found that the defence on the merits did not provide a valid defence to the plaintiff's claims.

The court found that the defendant's explanation for failing to appear at the trial was not satisfactory and that the defence on the merits was not substantiated. The court held that the application to set aside the default judgment was unsuccessful. The court also considered the admissibility of evidence provided by audio-visual link from the People’s Republic of China, finding that it was admissible under the Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 42E. The court found that the application to set aside the default judgment was unsuccessful.

The court ordered that the application to set aside the default judgment be dismissed. The court also ordered that the default judgment entered against the defendant remain in force. The court noted that the defendant had the right to appeal the decision.

Orders