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Bi v Touvanna

Bi v Touvanna

Case [2025] VSC 153 28 March 2025

Jurisdiction

Amendment of Pleadings

Cause of Action

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2021 04905

BETWEEN:

RAN BI & ANOR (according to the attached Schedule)	Plaintiffs
v
ANDROULLA TOUVANNA & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2024
DATE OF JUDGMENT:	28 March 2025
CASE MAY BE CITED AS:	Bi v Touvanna
MEDIUM NEUTRAL CITATION:	[2025] VSC 153

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PRACTICE AND PROCEDURE — Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — On grounds that claim does not disclose a cause of action — Rule 36.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Application for leave to amend statement of claim — Effect of nomination clause in contract of sale — Application to amend statement of claim allowed.

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APPEARANCES:	Counsel	Solicitors
The First Plaintiff in person
For the Second Plaintiff	Mr J Peters AM of counsel with Mr J Forrest of counsel	Unite Legal
For the Defendants	Mr N Frenkel of counsel	Consult Solicitors

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
Crefly’s statement of claim.......................................................................................................... 2
The contract of sale, Nomination Form and guarantee........................................................... 4
Rule 23.01....................................................................................................................................... 6
The authorities on nomination and novation........................................................................... 6
Crefly’s submissions on substituted purchaser...................................................................... 13
Analysis Does the SOC plead an arguable claim that Crefly was substituted as a purchaser? 15
Crefly’s proposed amended statement of claim..................................................................... 17
Rules 9.03, 9.06 and 36.01........................................................................................................... 22
Crefly’s submissions on joinder and amendment.................................................................. 24
The Touvannas submissions on joinder and amendment.................................................... 25
Joinder and amendment analysis............................................................................................. 28
Conclusion.................................................................................................................................... 32

HIS HONOUR:

Introduction

This case involves a contract of sale of land. In summary, Ran Bi (Mr Bi) entered into a contract of sale as purchaser with Androulla Touvanna and Christos Touvanna (the Touvannas) as vendors. Mr Bi subsequently entered into a deed of nomination with Crefly Pty Ltd (Crefly). Mr Bi and Crefly commenced a proceeding against the Touvannas alleging the Touvannas have refused to settle the contract and seeking an order for specific performance of the contract. However, since commencing the proceeding Mr Bi has fallen out with Mr Xiaolong Zhang, the controlling mind behind Crefly. Mr Bi has purported to cancel the nomination and to have entered into a deed with the Touvannas to set aside the contract of sale. Mr Bi seeks to discontinue his proceeding against the Touvannas.

There are two applications to be decided. The first is the Touvannas’ summons seeking summary judgment under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) against Crefly on the basis that Crefly’s claim is vexatious, in that it does not disclose a cause of action. The second is an application by Crefly and Diandian Zhao[1] (Ms Zhao) seeking leave to amend Crefly’s statement of claim and an order removing Mr Bi as a plaintiff and joining him as a defendant to the proceeding. Crefly also seek an injunction to…

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 Bi v Touvanna

Details

AGLC: Bi v Touvanna [2025] VSC 153
Case: [2025] VSC 153
Decision Date: 28 March 2025

CaseChat Overview and Summary

Bi was the plaintiff in the Supreme Court of Victoria, seeking to recover a sum of money from Touvanna, the defendant, on the basis of a contract for the sale of goods. The central issue in the case was whether the plaintiff's statement of claim was amendable to disclose a cause of action. The plaintiff sought to amend the statement of claim to include an allegation that a nomination clause in the contract was void under the Australian Consumer Law. The defendant objected to the amendment, arguing that it was an attempt to introduce a new cause of action outside the limitation period.

The court considered the applicable rules and whether the amendment would allow the plaintiff to pursue a claim that was previously barred by the statute of limitations. The court found that the nomination clause was indeed void under the Australian Consumer Law, but the plaintiff's failure to include this in the original statement of claim did not mean that the claim was necessarily barred. The court acknowledged that the plaintiff's original claim did not disclose a cause of action, but the potential for the nomination clause to be void under the Australian Consumer Law was a matter that could be rectified through amendment. The court granted leave for the statement of claim to be amended to include this allegation.

The court emphasised the importance of allowing parties to pursue legitimate claims, even if they were initially presented in a flawed manner. The court found that the amendment would not prejudice the defendant, as the void nomination clause was a matter of public policy that should be considered. The court's decision allowed the plaintiff to pursue a valid cause of action that had been previously overlooked.

Orders