Chen v Ghildyal - [2018] ACTCA 52

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Chen v Ghildyal
Citation:	[2018] ACTCA 52
Hearing Date:	14 September 2018, 20 November 2018
DecisionDate:	26 November 2018
Before:	Loukas-Karlsson J
Decision:	1. The application for leave to appeal is dismissed. 2. The applicant is to pay the respondent’s costs of the application.
Catchwords:	APPEAL – PRACTICE AND PROCEDURE – In General and Right of Appeal – Application for leave to appeal from interlocutory judgment – Costs – Costs of an Injunction – Principle of uberrima fides – Whether adequate weight given to principle of uberrima fides – Whether injunction improperly obtained – No error by primary judge – Appeal dismissed
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 1721, 5402 Supreme Court Act 1933 (ACT) ss 37E, 37J
Cases Cited:	AAMC Warehousing & Transport Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 970 Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9; ACTLR 44 House v the King (1936) 55 CLR 499 Lloyds Bowmaker Ltd v Britannia Arrow Holdings Plc [1988] 1 WLR 1337 Mallet v Mallet (1984) 156 CLR 605 More Than a Morsel Pty Ltd v Dean [2003] ACTCA 9 Re an application for leave to appeal by Insurance Australia ltd [2017] ACTCA 57 Redwin Industries Pty Ltd v Feetsafe Pty Ltd [2002] VSC 427 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 Velissaris v Fitzgerald [2008] VSCA 152 Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955
Parties:	Yijuan Chen (Applicant) Amit Ghildyal (1st Respondent) Reena Ghildyal (2nd Respondent)
Representation:	Counsel Mr B Aulich (Applicant) Mr B Buckland (Respondents)
Solicitors Aulich Civil Law (Applicant) McSpedden Harvey (Respondents)
File Number:	ACTCA 43 of 2018
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Murrell CJ Date of Decision: 31 July 2018 Case Title: Ghildyal v Chen Court File Number: SC 151 of 2018

Loukas-Karlsson J

Introduction

This matter concerns an application seeking leave to appeal an interlocutory decision of Murrell CJ, the primary judge, given on 31 July 2018. The primary judge on that occasion ordered that the costs of an ex parte injunction obtained by the first and second respondents be paid by the applicant.

Jurisdiction

An appeal from an interlocutory decision may only be brought to the Court of Appeal with the leave of the Court of Appeal: s 37E(4) of the Supreme Court Act 1933 (ACT). The Court of Appeal may be constituted by a single judge for hearing applications for leave to appeal: s 37J(1)(a) of the Supreme Court Act 1933 (ACT).

Leave to Appeal

The applicant filed an application for leave to appeal from an interlocutory judgment dated 7 August 2018. This application was accompanied by an affidavit of Mr Benjamin Joseph Aulich dated 7 August 2018, and a draft notice of appeal also filed by the appellant on 7 August 2018.

In Re an application for leave to appeal…

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.

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Details

Case: [2018] ACTCA 52
Decision Date: 26 November 2018

CaseChat Overview and Summary

This matter concerned an application for leave to appeal from an interlocutory judgment of the primary judge concerning costs awarded in relation to an injunction. The applicant, Chen, sought leave to appeal against the costs order made in favour of the respondent, Ghildyal.

The central legal issue before Loukas-Karlsson J was whether the primary judge had erred in their assessment of costs, specifically in relation to the principle of *uberrima fides* (utmost good faith) and whether the injunction had been improperly obtained. The applicant contended that insufficient weight had been given to the principle of *uberrima fides* and that the injunction was improperly obtained, thereby impacting the costs order.

Loukas-Karlsson J found no error in the primary judge's decision. The court determined that the primary judge had adequately considered the relevant principles, including *uberrima fides*, and had not improperly granted the injunction. Consequently, there was no basis to interfere with the costs order made at first instance.

The application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent's costs of the application.

Orders

Orders of the court

1. The application for leave to appeal is dismissed.

2. The applicant is to pay the respondent’s costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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