Cai v Tsang - [2018] NSWSC 625

Supreme Court

New South Wales

Medium Neutral Citation: Cai v Tsang [2018] NSWSC 625
Hearing dates: 4 April 2018
Decision date: 09 May 2018
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
1. The plaintiff's Notice of Motion filed on 14 March 2018 by which an order for summary judgment is sought is dismissed.
2. Unless a party makes an application in writing to my Associate within seven days for a different order, costs of and incidental to this application are to be costs in the cause.
3. Liberty to apply on three days’ notice.

Catchwords: CIVIL PROCEDURE – summary disposal – judgment for plaintiff – whether there is no arguable case – where defendant guaranteed loan made by plaintiff to defendant’s company – where company defaulted on repayments – whether guarantee enforceable against defendant – whether terms void or unjust or unenforceable – whether plaintiff’s conduct prevented performance – whether guarantee enforceable against third parties – not established that there is no arguable case – notice of motion dismissed
Legislation Cited: Contracts Review Act 1980 (NSW) s 7
Uniform Civil Procedure Rules 2005 (NSW) r 13.1
Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268; [2007] NSWCA 370
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Spellson v George (1992) 26 NSWLR 666; [1992] NSWCA 254
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57
Yerkey v Jones (1939) 63 CLR 649; [1939] HCA 3
Category: Principal judgment
Parties: Weiming Cai (Plaintiff)
Andrew Tsang (Defendant)
Representation:
Counsel:
Mr R C Gration (Plaintiff)
Mr J Cameron (Defendant)
Solicitors:
Jurisbridge Legal
Johninfo Lawyers Pty Ltd

File Number(s): 2017/312707

Judgment

HIS HONOUR: This is an application for summary judgment pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW).

Procedural history

Weiming Cai ("the plaintiff") filed a Statement of Claim on 16 October 2017 by which judgment was sought for the principal sum of $3,500,000 (plus interests, costs etcetera) against Andrew Tsang, also known as Ronghuo Zeng ("the defendant"). The sum is said to be owing pursuant to a loan agreement in which the defendant was the guarantor of the principal sum.
The Statement of Claim was served personally upon the defendant on 2 November 2017. He did not file a defence. On 22 December 2017 the plaintiff filed a notice of motion seeking default judgment. The matter was listed before the Registrar on 9 February 2018 on which occasion there was an appearance on behalf of the defendant. Orders made by the Registrar included that a notice of appearance be filed by 16 February 2018 and the matter be relisted on 23 February…

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 Cai v Tsang

Details

AGLC: Cai v Tsang [2018] NSWSC 625
Case: [2018] NSWSC 625
Decision Date: 09 May 2018

CaseChat Overview and Summary

The case of Cai v Tsang involved the plaintiff, Cai, seeking judgment against the defendant, Tsang, in relation to a guarantee that Tsang provided for a loan made by Cai to Tsang’s company. The company defaulted on its repayments, and Cai sought to enforce the guarantee against Tsang. Tsang argued that the guarantee was either void, unjust, or unenforceable, or that Cai’s conduct prevented the guarantee from being enforced against third parties. The court was required to determine whether there was an arguable case for Cai to enforce the guarantee against Tsang.

The court examined whether there was an arguable case for Cai to enforce the guarantee against Tsang. It considered whether the guarantee was enforceable against Tsang, and whether it was void, unjust, or unenforceable. The court also considered whether Cai’s conduct prevented the guarantee from being enforced against third parties. The court found that there was an arguable case for Cai to enforce the guarantee against Tsang, as the terms of the guarantee were not void, unjust, or unenforceable. Furthermore, the court found that Cai’s conduct did not prevent the guarantee from being enforced against third parties.

The court dismissed the notice of motion on the basis that there was an arguable case for Cai to enforce the guarantee against Tsang. The court found that the guarantee was enforceable against Tsang, and that there was no evidence to suggest that the guarantee was void, unjust, or unenforceable. Furthermore, the court found that Cai’s conduct did not prevent the guarantee from being enforced against third parties. The court held that there was an arguable case for Cai to enforce the guarantee against Tsang, and that the notice of motion should be dismissed.

The court dismissed the notice of motion, finding that there was an arguable case for Cai to enforce the guarantee against Tsang. The court held that the guarantee was enforceable against Tsang, and that there was no evidence to suggest that the guarantee was void, unjust, or unenforceable. Furthermore, the court found that Cai’s conduct did not prevent the guarantee from being enforced against third parties. The court ordered that the notice of motion be dismissed, with no orders as to costs.

Orders