Chang v Chang - [2022] VSCA 256

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0102

HOLLY CHANG (OTHERWISE KNOWN AS HONG CHANG)	Applicant
v
VICTOR CHANG (OTHERWISE KNOWN AS SHENGLI CHANG)	Respondent

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JUDGES:	WALKER JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2022
DATE OF JUDGMENT:	23 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 256
JUDGMENT APPEALED FROM:	Chang v Chang (Supreme Court of Victoria, Irving AsJ, 23 June 2022); S ECI 2021 01122

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PRACTICE AND PROCEDURE – Application for leave to appeal, request for extension of time and stay application – Appeal from default judgment of Associate Judge – Appeal inappropriate where application to set aside default judgment not made – Where procedure under r 21.07 available but not pursued – Insufficient reasons for delay of four months in bringing applications – Insufficient prejudice to applicant where applicant may seek to set aside default judgment – Applications refused.

Supreme Court (General Civil Procedure) Rules 2015, rr 21.07, 64.08.

Lee v Yap [2021] VSCA 297; Brown v Fraser (1896) 22 VLR 22; MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172; Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 905, referred to.

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Counsel
Applicant:		In person
Respondent:		Mr C Banasik
Solicitors
Applicant:	Peer Legal
Respondent:	--

WALKER JA
J FORREST AJA:

This application to extend the time for seeking leave to appeal the decision of an Associate Justice arises out of a bitter family dispute between Mr Victor Chang (otherwise known as Shengli Chang; ‘Victor’) and Ms Holly Chang (otherwise known as Hong Chang; ‘Holly’).[1]
[1]Without any disrespect to the parties, first names are used because of the common surname.
On 15 April 2021, Victor issued a proceeding in this Court against Holly. The statement of claim sought declarations and equitable compensation from Holly in relation to alleged breaches of trust and fiduciary duties.
Despite numerous attempts to serve Holly with the Writ it was unable to be served personally.
On 31 March 2022, Judicial Registrar Keith extended the validity of the Writ to 15 June 2022. At the same time, the Registrar made orders for substituted service of the Writ upon Holly.
Pursuant to those orders, substituted service was effected on 6 April 2022 by: post to an address in Siddeley Street, Docklands; email to Holly’s email address; email to the email address of a solicitor who had previously acted for Holly; and SMS to Holly’s mobile phone number. Under the terms of the Judicial Registrar’s order, service was deemed to have been effected on 13 April 2022.
Holly did not enter an appearance to the Writ.
On 19 May 2022, Victor filed a summons pursuant to r 21.01 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). It included an application for judgment under r 21.04 of the Rules.
On 31 May 2022, Victor’s solicitor sent an email to Holly informing her of the application for default…

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 Chang v Chang

Details

AGLC: Chang v Chang [2022] VSCA 256
Case: [2022] VSCA 256
Decision Date: 23 November 2022

CaseChat Overview and Summary

The case of Chang v Chang involved an application for leave to appeal, a request for an extension of time, and a stay application, all stemming from a default judgment given by an Associate Judge. The applicant sought to challenge the default judgment on various grounds, but the court found the application to be untimely and lacking in sufficient justification for the delay. The respondent opposed the application, arguing that the applicant had not followed the appropriate procedures and had failed to demonstrate any significant prejudice that would warrant the relief sought.

The legal issues before the court were whether the application for leave to appeal was appropriately brought and whether the applicant's delay in making the application could be excused. The court examined whether the applicant could have sought to set aside the default judgment under rule 21.07 of the Supreme Court (General Civil Procedure) Rules 2015, a procedure that was available but not pursued. The court also considered the reasons provided for the four-month delay in bringing the application and whether the applicant had shown sufficient prejudice to warrant the relief sought.

The court held that the application for leave to appeal was inappropriate as the applicant had not made an application to set aside the default judgment, despite the availability of the procedure under rule 21.07. The court found that the reasons provided for the delay were insufficient and that the applicant had not demonstrated significant prejudice that would warrant the relief sought. Consequently, the court refused the application for leave to appeal, the request for an extension of time, and the stay application. The court's reasoning was grounded in the need for adherence to procedural rules and the importance of timely actions in legal proceedings. The court emphasised that the applicant could still seek to set aside the default judgment under the relevant rules, which had not been pursued in this case.

Orders