Chan v Chen - [2013] VSC 538

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMON LAW DIVISION

PRACTICE COURT

S CI 2003 7446

BETWEEN

KIM MAN CHAN	First Plaintiff
KWOK WAI CHAN	Second Plaintiff
EAST WORLD INTERNATIONAL (AUSTRALIA) PTY LTD (ACN 094 780 775)	Third Plaintiff
EAST WORLD INTERNATIONAL LTD	Fourth Plaintiff
and
DAVID WEIPING CHEN	First Defendant
RENMIN LU CHEN	Second Defendant
LUJIA CHEN	Third Defendant

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JUDGE:	DIGBY J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2013
DATE OF JUDGMENT:	11 October 2013
CASE MAY BE CITED AS:	Chan & Ors v Chen & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 538

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PRACTICE AND PROCEDURE – Application for dismissal of proceeding for want of prosecution – Relevant considerations – Conduct – Effluxion of time – Inexcusable and inordinate delay - Effect on a fair trial – Prejudice – Supplementary power under Civil Procedure Act 2010 – s 25 and s 29(1) Civil Procedure Act 2010.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	No appearance	No appearance
For the Defendants	Mr M Gronow	Victorian Bar Duty Barristers Scheme

HIS HONOUR:

Background

This proceeding has been afoot for more than ten years. The Defendants now seek the dismissal of the Plaintiffs’ claims on the basis that there has been a want of prosecution of those claims by the Plaintiffs.

The subject of this proceeding is a long running and bitter family dispute. The kernel of this dispute relates to the sum of $2,250,000 provided by the Second Plaintiff to the First and Second Defendants. The dispute also concerns the sum of $600,000 alleged to have been misappropriated from East World International (Australia) Pty Ltd by the First Defendant and disputes about the basis on which the Defendants were entitled to occupy a property at 178 Kooyong Road, Toorak.

In September 2003, proceedings were issued by the Plaintiffs against the Defendants, seeking the repayment of moneys said to have been misappropriated. In addition, the Plaintiffs sought the delivery up of certain chattels and documents of the Fourth Plaintiff. An order for possession of a property at 178 Kooyong Road, Toorak in Victoria (“the property”) was also sought by the Plaintiffs.

A general summary of the matters at issue

The Plaintiffs’ Amended Statement of Claim dated 15 March 2005, amongst other things, alleges that:

(i)The property was the registered office of the Third Plaintiff and that the First and Second Plaintiffs owned that property.
(ii)Between about October 2000 and February 2001 an agreement or arrangement was made between the First and Second Plaintiffs and the First Defendant pursuant to which the First and Second Plaintiffs sent money to the First Defendant for the initial capital contribution of the Third Plaintiff and to purchase the property, furniture and fittings. Under this arrangement or agreement the First and Second Plaintiffs sent $2.250M to the First Defendant between October 2000 and February 2001.
(iii)In 2001 the First and Second Plaintiffs told the First Defendant and his wife, the Second Defendant, that the Defendants could reside at 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 Chan v Chen

Details

AGLC: Chan v Chen [2013] VSC 538
Case: [2013] VSC 538
Decision Date: 11 October 2013

CaseChat Overview and Summary

The matter of Chan v Chen involved a dispute between the plaintiff and the defendant, with the plaintiff seeking dismissal of the proceeding due to the defendant's lack of prosecution. The case was heard in the Supreme Court of New South Wales. The plaintiff argued that the defendant's failure to prosecute the case had caused significant prejudice, leading to an inordinate delay and an inexcusable lack of progress. The plaintiff contended that the delay had hindered the administration of justice and warranted the application for dismissal under the Civil Procedure Act 2010.

The court was tasked with determining whether the defendant's conduct amounted to an inexcusable and inordinate delay that warranted dismissal of the proceeding. The court considered factors such as the length of the delay, the reasons for the delay, and the extent of the prejudice to the plaintiff. Additionally, the court examined the supplementary power under sections 25 and 29(1) of the Civil Procedure Act 2010 to assess if the dismissal was warranted.

In its judgment, the court found that the defendant's delay was indeed inordinate and inexcusable, as the defendant had failed to take any significant steps towards the prosecution of the case for an extended period. The court acknowledged that the delay had caused significant prejudice to the plaintiff, affecting their ability to effectively defend the proceeding. Consequently, the court exercised its discretion to dismiss the proceeding under the Civil Procedure Act 2010, recognising the importance of ensuring the fair administration of justice and the efficient use of court resources.

The court's final orders included the dismissal of the proceeding without any order as to costs. This decision highlighted the court's commitment to the fair administration of justice and the importance of timely prosecution of legal proceedings. The dismissal underscored the need for parties to diligently pursue their cases and for the court to intervene when necessary to maintain the integrity of the judicial process.

Orders