Bates v Shen - [2019] NSWSC 910

Supreme Court

New South Wales

Medium Neutral Citation: Bates v Shen [2019] NSWSC 910
Hearing dates: 28 June 2019
Date of orders: 18 July 2019
Decision date: 18 July 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Enter summary judgment against the defendant in the sum of $7,500.
2.   Otherwise dismiss the plaintiff’s notice of motion.
3.   Order the defendant to pay 50% of the plaintiff’s costs of the notice of motion and otherwise order that there be no order as to the costs of the notice of motion.
4.   Liberty to apply on reasonable notice if issues arise in relation to the implementation of these orders or if there is an application to vary the orders.

Catchwords: CIVIL PROCEDURE – Summary judgment – application for interim payment under s 82 of the Civil Procedure Act 2005 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 82, 84
Uniform Civil Procedure Rules 2005 (NSW) rr 13.1, 17.7
Cases Cited: Ash v Hutchinson & Co (Publishers) Ltd [1936] Ch 489; [1936] 2 All ER 1496
Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44
Ellis v Allen [1914] 1 Ch 904; [1911-13] All ER Rep 906
Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106
Gibson v Goldsmid (1854) 5 De GM & G 757; 43 ER 1064
Gupta v Fordham Laboratories Pty Ltd [2018] NSWSC 551
Langman v Handover (1929) 43 CLR 334; [1929] HCA 42
Marryatts v White (1817) 171 ER 586
Matouk v Hungry Jacks [2009] NSWSC 1176
Mercanti v Mercanti [2015] WASC 297
Mita Copiers Australia Pty Ltd v Condor OA Pty Ltd (Supreme Court (NSW), Hunter J, 10 October 1994, unrep)
Munsie v Munsie [2012] NSWSC 479
Texts Cited: Ritchie's Uniform Civil Procedure NSW
Category: Principal judgment
Parties: Lesley Patrice Bates (Plaintiff)
Pei Ling Shen ( Defendant)
Representation:
Counsel:
WK Soon (Plaintiff)
JC Lee (Defendant)
Solicitors:
Nadav Prawer, Mann Lawyers (Plaintiff)
Ma & Company (Defendant)

File Number(s): 2018/00379946
Publication restriction: Nil

Judgment

HER HONOUR: In this matter, the plaintiff (Lesley Patrice Bates), by notice of motion dated 27 May 2019, seeks summary judgment pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in the sum of $7,500 against the defendant/cross-claimant (Pei Ling Shen), that amount representing the simple interest calculated on a sum of $200,000 payable according to a loan agreement admittedly entered into on or about 8 August 2017 between the plaintiff and the defendant (the First Loan Agreement); and an order pursuant to s 82 of the Civil Procedure Act 2005 (NSW) (the Civil Procedure Act) that the defendant pay the plaintiff $2,500 per month until the finalisation of these proceedings.
As adverted to above, there is no dispute between the parties as to their entry into the First Loan Agreement as such (although there is a dispute as to certain terms of the First Loan Agreement and the defendant has cross-claimed seeking an…

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 Bates v Shen

Details

AGLC: Bates v Shen [2019] NSWSC 910
Case: [2019] NSWSC 910
Decision Date: 18 July 2019

CaseChat Overview and Summary

The plaintiffs, Bates, sought summary judgment against the defendants, Shen, in a case concerning a dispute over payment for services rendered. The matter was heard in the Supreme Court of New South Wales. The plaintiffs, Bates, were service providers who claimed they were owed money by Shen, the defendant. Bates sought summary judgment, which is a form of expedited judgment where the defendant does not dispute the claims made by the plaintiff. The defendants, Shen, contested the application for summary judgment and also sought an interim payment under section 82 of the Civil Procedure Act 2005 (NSW). This section allows for the payment of a portion of the disputed amount while the case proceeds.

The court was required to decide whether the plaintiffs were entitled to summary judgment and, if so, whether an interim payment should be made to the defendants. The key legal issue was whether the defendants' opposition to the summary judgment application was valid and sufficient to prevent the court from granting the summary judgment. The court also needed to consider whether an interim payment should be made to the defendants under section 82 of the Act.

The court found that the defendants' opposition to the summary judgment application was valid and sufficient to prevent the court from granting the summary judgment. The court noted that the defendants had raised a genuine issue of fact that needed to be resolved at trial. The court also found that the defendants' opposition was not frivolous or vexatious and that an interim payment should be made to the defendants under section 82 of the Act. The court ordered that the defendants be paid $50,000 as an interim payment towards their legal costs. The court found that this amount was reasonable and necessary to enable the defendants to adequately defend the case. The court also noted that the payment would not prejudice the plaintiffs' right to a fair trial.

Orders