Chen v Zhang - [2009] NSWCA 202

New South Wales

Court of Appeal

CITATION: Chen v Zhang & Ors [2009] NSWCA 202

HEARING DATE(S): 2 July 2009

JUDGMENT DATE:
24 July 2009

JUDGMENT OF: Campbell JA at 1; Handley AJA at 2; Sackville AJA at 3

DECISION: 1. Leave granted to the appellant pursuant to the Felons (Civil Proceedings) Act 1981 (NSW) s4, to pursue the appeal.
2. Appeal dismissed.
3. Appellant to pay the First, Second and Third Respondents' costs of the appeal.

CATCHWORDS: APPEAL – Appeal – Interference with findings of fact – Proof and evidence – Burden of proof – Appellant claimed interest in business – Primary judge disbelieved witnesses for both appellant and respondents – Whether evidence established existence of an agreement creating interest in the business on the balance of probabilities – Whether primary judge erred in not making findings of fact as to existence or nature of agreement

LEGISLATION CITED: Evidence Act 1995
Felons (Civil Proceedings) Act 1981
Financial Transaction Reports Act 1992
Proceeds of Crime Act 2002 (Cth)

CASES CITED: Guest v Nominal Defendant [2006] NSWCA 77
Jol v State of New South Wales (1998) 45 NSWLR 203
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948; [1985] 2 All ER 712

PARTIES: Peter Chen
Shun Xuan Zhang also known as William Zhang
Wei Zhang also known as Vincent Zhang
Global Goldstar Pty Ltd
Luke Hor and Douglas Hor
Cam Phoong Tai
Christopher Papaioannou

FILE NUMBER(S): CA 40425/08

COUNSEL: M R Gracie / D A Neggo (Appellant)
G George (First, Second and Third Respondents)
D Tynan (Fourth Respondent)

SOLICITORS: Beazley Singleton Lawyers, Sydney (Appellant)
E Berman & Co, Chatswood (First, Second and Third Respondents)
Whitehead Cooper Williams, Sydney (Fourth Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 4409/08

LOWER COURT JUDICIAL OFFICER: Rein J

LOWER COURT DATE OF DECISION: 12 November 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Chen v Zhang & Ors [2008] NSWSC 1203

CA 40425/08
SC 4409/08

CAMPBELL JA
HANDLEY AJA
SACKVILLE AJA
24 July 2009

PETER CHEN v SHUN XUAN ZHANG aka WILLIAM ZHANG & ORS

Judgment

1 CAMPBELL JA: I agree with Sackville AJA.

2 HANDLEY AJA: I agree with Sackville AJA.

3 SACKVILLE AJA: This is an appeal against a decision of a Judge of this Court given on 12 November 2008. After a five day trial, his Honour dismissed a claim by the appellant (the plaintiff below) for declaratory and other relief relating to the interest claimed by him in a business conducted under the name “Heaven on Earth”. The business, which is located at premises in Crows Nest, Sydney (“Premises”), was described at the trial as a Chinese karaoke restaurant and hostess lounge.

4 The proceedings have several unusual features. First, the appellant was charged with money laundering offences in 2005. In March 2008, he was convicted of those offences and sentenced to a term of imprisonment of sixteen and a half years. 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 Chen v Zhang

Details

AGLC: Chen v Zhang [2009] NSWCA 202
Case: [2009] NSWCA 202
Decision Date: 24 July 2009

CaseChat Overview and Summary

In *Chen v Zhang*, the appellant, Mr. Chen, appealed a decision of the primary judge who had disbelieved witnesses for both the appellant and the respondents. The dispute concerned Mr. Chen's claim to an interest in a business.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the evidence did not establish the existence of an agreement creating an interest in the business on the balance of probabilities, and whether the primary judge failed to make necessary findings of fact regarding the existence or nature of any such agreement.

The Court of Appeal considered the principles governing interference with findings of fact on appeal. It was held that the primary judge's discrediting of witnesses was a matter within their purview. The Court found no error in the primary judge's assessment of the evidence, concluding that the appellant had not discharged the burden of proof required to establish the existence of an agreement creating an interest in the business on the balance of probabilities.

Leave to appeal was granted, but the appeal was ultimately dismissed, with the appellant ordered to pay the respondents' costs.

Orders

Orders of the court

1. Leave granted to the appellant pursuant to the Felons (Civil Proceedings) Act 1981 (NSW) s4, to pursue the appeal. 2. Appeal dismissed. 3. Appellant to pay the First, Second and Third Respondents' costs of the appeal.

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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CITATION:	Chen v Zhang & Ors [2009] NSWCA 202
HEARING DATE(S):	2 July 2009
JUDGMENT DATE:	24 July 2009
JUDGMENT OF:	Campbell JA at 1; Handley AJA at 2; Sackville AJA at 3
DECISION:	1. Leave granted to the appellant pursuant to the Felons (Civil Proceedings) Act 1981 (NSW) s4, to pursue the appeal. 2. Appeal dismissed. 3. Appellant to pay the First, Second and Third Respondents' costs of the appeal.
CATCHWORDS:	APPEAL – Appeal – Interference with findings of fact – Proof and evidence – Burden of proof – Appellant claimed interest in business – Primary judge disbelieved witnesses for both appellant and respondents – Whether evidence established existence of an agreement creating interest in the business on the balance of probabilities – Whether primary judge erred in not making findings of fact as to existence or nature of agreement
LEGISLATION CITED:	Evidence Act 1995 Felons (Civil Proceedings) Act 1981 Financial Transaction Reports Act 1992 Proceeds of Crime Act 2002 (Cth)
CASES CITED:	Guest v Nominal Defendant [2006] NSWCA 77 Jol v State of New South Wales (1998) 45 NSWLR 203 Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948; [1985] 2 All ER 712
PARTIES:	Peter Chen Shun Xuan Zhang also known as William Zhang Wei Zhang also known as Vincent Zhang Global Goldstar Pty Ltd Luke Hor and Douglas Hor Cam Phoong Tai Christopher Papaioannou
FILE NUMBER(S):	CA 40425/08
COUNSEL:	M R Gracie / D A Neggo (Appellant) G George (First, Second and Third Respondents) D Tynan (Fourth Respondent)
SOLICITORS:	Beazley Singleton Lawyers, Sydney (Appellant) E Berman & Co, Chatswood (First, Second and Third Respondents) Whitehead Cooper Williams, Sydney (Fourth Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 4409/08
LOWER COURT JUDICIAL OFFICER:	Rein J
LOWER COURT DATE OF DECISION:	12 November 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Chen v Zhang & Ors [2008] NSWSC 1203