Chan v Eastern Blue Pty Ltd - [2021] VSCA 152

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0110

MICHELLE SIU PIK CHAN	First Applicant
ASSETS CHINA PTY LTD (ACN 093 530 593)	Second Applicant
v
EASTERN BLUE PTY LTD (ACN 620 756 694)	First Respondent
MIAN ZHANG	Second Respondent

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JUDGES:	KYROU and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	4 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 152
JUDGMENT APPEALED FROM:	[2020] VSC 685 (Ierodiaconou AsJ)

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COSTS – Respondents made claims in contract and restitution against applicants – Magistrate dismissed applicants’ no-case submission against respondents – Magistrate awarded respondents damages in contract and dismissed applicants’ counterclaim – Applicants’ appeal to Trial Division against damages award dismissed – Court of Appeal held first applicant had no defence to claim in restitution, and damages award in contract could not be sustained – First applicant refused leave to appeal – Second applicant granted leave to appeal and its appeal allowed – Applicants ordered to pay respondents’ costs of no‑case submission and counterclaim, otherwise parties to bear own costs of Magistrates’ Court proceeding, Trial Division proceeding and Court of Appeal proceeding.

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APPEARANCES:	Counsel	Solicitors
No appearances

KYROU JA
NIALL JA:

Introduction and summary

On 12 May 2021, this Court made an order which relevantly granted leave to appeal to the second applicant (‘Assets China’), refused leave to appeal to the first applicant (‘Ms Chan’), and gave directions for the parties to file written submissions on costs.[1] These reasons assume familiarity with the Court’s principal judgment.
[1]Chan v Eastern Blue Pty Ltd [2021] VSCA 121 (‘principal judgment’).

On 31 May 2021, this Court made an order by consent which relevantly:

(a) allowed the appeal by Assets China;
(b)modified the magistrate’s judgment so that it only applied as between the respondents and Ms Chan;
(c)set aside costs orders made by the magistrate, other than the order awarding costs to the respondents in respect of the applicants’ no-case submission;
(d)modified the associate judge’s order dismissing the appeal so that the dismissal applied only to Ms Chan’s appeal;
(e)set aside the associate judge’s costs orders; and
(f)gave directions for the parties to file supplementary written submissions on costs.

We have considered the parties’ written submissions on costs filed pursuant to our order dated 12 May 2021 and their supplementary written submissions filed pursuant to our order dated 31 May 2021.

For the reasons set out below, we have concluded that the parties should bear their own costs of the Magistrates’ Court proceeding, the Trial Division proceeding and the Court of Appeal proceeding, save as follows:

(a)the magistrate’s order that the applicants pay the respondents’ costs of the applicants’ no-case submission should not be disturbed; and
(b)the applicants should pay the respondents’ costs of the applicants’ counterclaim.

Costs of the Magistrates’ Court proceeding

In the Magistrates’ Court proceeding, the respondents relied heavily on their claim in contract, which, on our analysis, was flawed. The respondents devoted relatively little time to their claim in restitution,…

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 Eastern Blue Pty Ltd

Details

AGLC: Chan v Eastern Blue Pty Ltd [2021] VSCA 152
Case: [2021] VSCA 152
Decision Date: 4 June 2021

CaseChat Overview and Summary

Chan v Eastern Blue Pty Ltd involved a dispute between Chan, the first applicant, and Eastern Blue Pty Ltd, the respondent, with the second applicant, Blue Pty Ltd, also involved in the proceedings. The respondents brought claims against the applicants in contract and restitution, which were dismissed by the magistrate when the applicants made a no-case submission. The respondents were awarded damages in contract, and the applicants’ counterclaim was dismissed. An appeal by the applicants against the damages award was unsuccessful, but the Court of Appeal later held that the first applicant had no defence to the claim in restitution and that the damages award in contract could not be sustained. The first applicant was refused leave to appeal, but the second applicant was granted leave and its appeal was allowed.

The central legal issues addressed by the court were whether the first applicant had a valid defence to the claim in restitution and whether the damages awarded in contract could be sustained. The court examined the evidence and arguments presented by both parties, considering the relevant legal principles and authorities. The Court of Appeal found that the first applicant had no defence to the claim in restitution, and that the damages award in contract could not be sustained on the evidence presented.

The court held that the applicants were liable to pay the respondents' costs of the no-case submission and counterclaim, while the parties were to bear their own costs of the Magistrates' Court proceeding, Trial Division proceeding, and Court of Appeal proceeding. This decision reinforces the importance of ensuring that claims in contract and restitution are adequately defended, and that damages awards are based on sufficient evidence. It also highlights the need for parties to carefully consider their options when appealing decisions of lower courts.

Orders