Beijing Hua Xin Liu He Investment (Australia) Pty Ltd v Lu

Beijing Hua Xin Liu He Investment (Australia) Pty Ltd commenced proceedings against Lu and others, claiming that they had entered into an agreement for the sale of shares in Zeus Technology Pty Ltd and that payments had been made in accordance with the terms of the agreement. Lu and others applied for summary dismissal of the proceeding as a whole, but at the hearing of the application, limited the application to the contractual claims. The applicants opposed the application, arguing that there was a triable issue in relation to the existence of an agreement and that the respondents had failed to properly plead their defence. The primary judge dismissed the applicants' claims, finding that they had no reasonable prospects of success. The applicants appealed against the primary judge's decision, arguing that there was a triable issue as to whether an agreement had been reached and that the primary judge had erred in dismissing their claims.

The court was required to decide whether the primary judge erred in summarily dismissing the applicants' contractual claims on the basis that they had no reasonable prospects of success. The court also had to determine whether the applicants were entitled to a trial of their contractual claims and whether the respondents were entitled to rely on further written submissions filed after the close of the appeal. The court found that the primary judge had erred in dismissing the applicants' claims without giving them an opportunity to adduce evidence. The court held that the material provided a sufficient evidentiary foundation for the existence of a dispute and that the applicants were entitled to a trial of their contractual claims. The court also found that the respondents were entitled to rely on paragraphs 9 to 11 of their further written submissions, but their interlocutory application otherwise was dismissed. The court allowed the appeal, set aside the orders of the primary judge, and ordered that the respondents' application for summary judgment be dismissed. The court also ordered that the respondents pay the applicants' costs of the application for summary judgment, of the appeal, and of the interlocutory application dated 24 November 2017.