Chen v Cheng

[2002] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B94 of 2001

B e t w e e n -

WEI XIN CHEN

Applicant

and

VINCENT CHENG, MANAGER FOR CHINA TOWN AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

First Respondent

CORALIE MOTT, BODY CORPORATE MANAGER FOR WISHART, KENMORE MANAGEMENT PTY LTD

Second Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 26 JUNE 2002, AT 3.44 PM

Copyright in the High Court of Australia

MS W.X. CHEN appeared in person.

GUMMOW J:   Before you begin, Ms Chen, I should indicate the Court has been advised by the Deputy Registrar that she holds a letter from Herd & Janes, solicitors for the second respondent and advised me that the second respondent will not be filing a summary of argument in the matter, should not be named as a party, an order having been made by the Queensland Court of Appeal removing the second respondent as a party, and attaching a copy of that order.

MR M.J. DRYSDALE:   If the Court pleases, I appear for the first respondent.  (instructed by Nicol Robinson Halletts)

GUMMOW J:    Yes, Ms Chen.  Now, what do you want to say?  You have 20 minutes, do you understand?

MS CHEN:   Yes, I have supplemented the documents and oral arguments on the submission to the Court on ‑ ‑ ‑

GUMMOW J:   I am sorry, this has all got to be taken down, so if you move to the microphone and speak a little more slowly.

MS CHEN:  Yes.  I am On‑Site Manager for Wishart Village.  These things happened in 1999.  December 4, the two policemen rushed into my house, kicked me out of the unit.  They just said the ANZ let them come into my, you know – so according to the policeman’s paper in the second – no, in the 2 appeal book.  This appeal book not used by the Supreme Court appeal book either on page ‑ ‑ ‑

GUMMOW J:   Now, we have a document headed, “Oral argument with Submission”.  Do you have that?

MS CHEN:   Yes, it is – so, I think it was 4 December ‑ ‑ ‑

GUMMOW J:   No, just a minute.  We would be assisted if you would indicate which particular passages in that document you want to rely on particularly and what particular matters you would want to add that are not already there.

MS CHEN:   Yes.  The contracts and the title documents.  The title documents from the Registrar of the Title Office has said that this title is not as the…..even in the application book.  They said:

THE JUDGMENT OF THE COURT IS THAT the Plaintiff recover as against the Defendant WEI‑XIN CHEN possession of the land described as Lot 6 . . . Title Reference 18621170.

This is totally wrong, because the title document that was just issued to me on July 15, 2000 the year.  The number - the number is – the paper, it appear in this – appear the second appeal book page ‑ ‑ ‑

GUMMOW J:   Now, what you really have to satisfy us is not to start again, you have to satisfy us that there is some error in the judgment of the Queensland Court of Appeal in the judgment of Justice Mullins, I think.

MS CHEN:   This is, I said, you know, the appeal from the judgment of 20 November 2001 made by Court of Appeal of Supreme Court of Queensland which is found error in - in error of the facts, in error of evidence and in error of law, and as to its incorrectness as to the warrant of the grant of special leave.  There is sufficient basis for concluding that the decision of the Court of Appeal was affected by the apprehended basis of the decision of the decision‑makers.  The consequence of the failure ‑ ‑ ‑

GUMMOW J:   Affected by what?

MS CHEN:    ‑ ‑ ‑ to accord a procedural fairness or for concluding ‑ ‑ ‑

GUMMOW J:   Affected by what?  Just listen to me.  Affected by what?

MS CHEN:   Affected by apprehended bias of the decision‑maker.

GUMMOW J:   What bias?

MS CHEN:   Because you can look at the Judge Atkinson’s judgment either on the appeal book page - reasons for judgment of Atkinson is page 16.  He said that uniform law:

r 171 of the Uniform Civil Procedure Rules . . .against the plaintiff pursuant to the r 293 of the UCPR. 

In my oral argument the rule is document C or document D, the uniform rule 171 “Striking out pleadings”.  This rule, I think:

has a tendency to prejudice or delay the fair trial of the proceeding –

because this management rights the contractor, the basic purpose it cannot defeat.  This is the contractor only for the manager you know, to support their family life and the necessary.  So I pay over $100,000 for this management rights contract but the judge never look at.  Now, three years past, no dollar put into my account.  Just dependent on policeman’s….of paper said I obstruct their job, they carrying job on my managed garden.  But the fact totally is I was working in this garden in the morning, on Saturday morning.  They rushed into my property and kick me out and take all the furniture and everything gone with them, as long as probably five minutes.  This is the first event happened in December 4, 1999.

After the things happened I called the Queensland Law Society.  He said - the Queensland Law Society said, “Probably is ANZ Bank”.  When I come to the ANZ Bank, the ANZ Bank has nothing, you know, to show me, and that they gave me the paper.  In the appeal book they said they never advanced the facility to me, you know, on September 16, 1998.

According to my contract I purchased the management rights on 16 October 1998.  Marcus Ford for bank asking is my solicitor.  According to his – the contract, you know, executed and stamped – is no ANZ Bank any money, you know, on title encumbrance, but I cannot know.  I pay them three times in the earlier payments but the judge said I did not pay them.  So this paper in my third appeal book I pay them three times, in page 384, 385 and 386.  The monthly interest adjust to $640.  Later, after December 4 event, Queensland Law Society piece of paper let my $90,000 purchased unit and become ANZ Bank money. 

Chris Toogood, he said the company sent me 50,000.  They first put my own money with probably in the - is – I think that I win the first case.  So the first action, they put the money into my unit.  So this unit is $96,461, is in the appeal book.  The first book is one page - 162, ANZ just used this paper, plus the $30,278, and it become their money.  They said I owe them money, is more than $112,000.  So this is probably the funniest things.  In the title document issued, the other document is law over the property they take possession of.  Now, the contractor is no title encumbrance.  So according to Judge Atkinson, you know, the paper, she just said I must pay.  I need to pay ANZ Bank $830 a month.

So I tell the judge that this is - I was forced by the, you know, solicitor to sign an untenable agreement.  This agreement is on this appeal book, page 90 – is a two page and 96.  Is no ANZ Bank’s any signature.  Is only my solicitor and I, and according to this paper, is a lot of terms and conditions, is a contract - is totally conflict each other.

So such a document, if designed by the solicitor, is totally, you now, shocked, but at that moment I have no way out.  I have no money.  I just ask the solicitor, “I need back to the business.”  This business I purchased by myself.  According to Marcus Ford – the deed of assignment is at page 43 the…..severance - it says, “In the event that any part of the deed be acknowledged by parties or to be adjudged by a court or be held or…..by a competent government authority to be invalid, illegal, unenforceable, such a part will be severed from the remainder of this deed and will be deemed never to have been offered and the remainder of it will be deemed never to have been part of it and the…..remainder in full force and effect on this basic purpose of it would be defeated.”

So I think the basic purpose of this contract cannot defeat.  This is in my oral argument, the validity of Wishart Village Management Rights Business contract and the deed of agreement was executed and stamped just in October, November and December.  They are separate, you know, executed this contractor.  According to the Management Rights Act 1997 the contractor…..the contractor and the letting agent agreement.  The contractor cannot be terminated and amended.  And, according to the section 81 of the regulation 1997 this Act states that:

The term of the engagement of a . . . service contractor . . . must not be longer than 10 years.

My deed of agreement just started from October 1998.  So, this is all the trust account and the bank receipt is here.  I work as manager.  I never did anything, you know, wrong.  There are so many infringements happen in Wishart Village I think they probably have something with Nicol Robinson Hallets.  According to the paper I submitted to the Court ‑ ‑ ‑

GUMMOW J:   Now – now, we are getting ‑ ‑ ‑

MS CHEN:   Yes, there is a ‑ ‑ ‑

GUMMOW J:   Now, just listen to me.  It is a good idea.  We are getting a long way, I think, from what was actually said by Justice Mullins in the Court of Appeal and you have to persuade us of some error of principle ‑ ‑ ‑

MS CHEN:   Yes, the principle ‑ ‑ ‑

GUMMOW J:   Just a minute – by reference to what her Honour said.  You cannot go back to the beginning and start from the beginning.

MS CHEN:   Yes, so this management rights, I purchased, executed and stamped by my solicitor.  The money compensated for under one action of 8380/98 so the money is with - not ANZ Bank money.  They agree, you know, to let me purchase the unit at 96,000.  So, the 50,000 that the solicitor told me someone – that they want to save money.  So they want to save money.  This is not my fault.  So, later in the solicitor’s letter the 50,000 appearing in their letter – this is in HCF Lawyers is on page – appeal book page 395 to 399.  They deduct 15,000 from this 50,000 and probably another action, you know, they initiated.

So this is – they just told me – you have the two business rights.  So I told him – I purchased the one business rights, so this management rights in Wishart establish the management rights, is my life resources.  I need it back to this business.  If my solicitor said at the first off‑plan management rights – at that moment in 1997 the ANZ Bank they said the vendor will become bankrupt because ANZ Bank’s….is $7 million.  So I told him, this is nothing I could do.  Now, five years past, probably Clayton John Krowe is…..so I did not know anything.  I just asked him to restore the first term.  They say, no.  I can say the second management rights of the Wishart Village.

So on May 28 I submit application to the High Court ask, you know, to – the Court to restore that this – to relieve the wrong judgment from the Wishart Village Management Rights.  This is according to the appeal book, the second paper in October 19 – September 2000 year.  They claim they filed on August 2000 year, but this is totally wrong.  The title document I have been, you know, obtained from the Title Office, so the ANZ at that moment ‑ the Nicol Robinson they say that they are ANZ solicitor so I cannot say because I never see any document from the appeal book they represent ANZ so this is probably another issue.

So according to this paper, the deputy registrar gave there, you know, the judgment.  The judgment I think is wrong.  I need the Court to remove this judgment and let me back into the Wishart Village first.  So the second is ask the Court to compensate – to the mortgage – the ANZ Bank to compensate me the lost income, seeing I think from the 1999 December 4, but at least it should be on the title document issued, July 13 and the interim order, you know, issued, so I still work – continue work as caretaker and letting agent in this property, but ANZ they initiate the second – probably the third ransack my house, unit – business unit.

So according to the appeal book, the manager – so that first judgment, I think, you know, failed to accord procedural fairness and that led up to the appeal on the ground of denial of natural justice.  This is the business only for the necessary – for the standard life.  At that moment I have no job.  I cannot find any job.  So, probably the defendant used that duress – economic duress, so I do not know.  So everywhere I look for a job but they just said, “Ah, is no job for you”.  So in the case Jamieson and Co v Jamieson (1898), Lord Lindley Minister state: 

Now, when we are asked to restrain a man who is carrying on business in his own name, we must take very great care what we are about.  The principle applicable to the case, I take it is this:  The Court ought not to restrain a man from carrying on business in his

own name simply because there are people who are doing the same and who will be injured by what he is doing.  

The fact is totally, you know, the contrast by I just do my business in my own name.  This name is C-H-E-W-I-S-H-A.

GUMMOW J:   You will see that the yellow light is on.  That means that you are nearly at an end of your time.  Is there anything you want to say by way of concluding?

MS CHEN:   Yes, including this paper. I needed a Court, you know, to promptly dealing with the claim, not causing unnecessary delay and – and for the reasons outlined, the applicant humbly beg of the High Court for jurisdiction to restore the Wishart Village Management Rights business with the said unit to me and to determine the claim for compensation level to the lost profit and the damage in relation to the relevant case and the principle therewith.

GUMMOW J:   Thank you

MS CHEN:   Thank you.

GUMMOW J:   We do not need to call on you, Mr Drysdale.

The application is made in respect of a decision of the Queensland Court of Appeal.  That court affirmed a discretionary judgment to strike out the applicant’s statement of claim.  That pleading was expressed in an argumentative and a somewhat vexatious language setting forth no sufficient facts to disclose a cause of action.

The judgment of the Court of Appeal has in no way been shown to have been incorrect.  Accordingly, the application should be dismissed, with costs.

Call application No 11.

(At 4.06 pm Cho v The Queen was called)

MS CHEN:   I am totally shocked, sir.  The three documents ‑ ‑ ‑

GUMMOW J:   No, I am afraid your application has been dismissed, madam.  That is it.

MS CHEN:   My application cannot be dismissed because this ‑ ‑ ‑

GUMMOW J:   Your application has been dismissed.  We hear you no further.  We have given our decision, as we do in respect of all these applications, as you will have heard today.  Now, we hear you no further.

MS CHEN:   So why you judges never look at the contracts?

GUMMOW J:   We have looked at all the documents, thank you.
.
MS CHEN:   All the documents you can look at what Nicol Robinson said.

GUMMOW J:   We are not entering into any further debate with you.  Now, please sit down or I will order your removal.

MS CHEN:   You cannot, you are showing me the page, what they say.

GUMMOW J:   Yes, Mr Hampson.

MS CHEN:   Could you look at this paper.

GUMMOW J:   Will you please leave the Bar table.  I will adjourn.

AT 4.07 PM THE MATTER WAS CONCLUDED