Chen Wei v Na Yu - [2019] VSCA 175

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0020

CHEN WEI	First Applicant
QI YUN XIA	Second Applicant
v
NA YU	Respondent

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JUDGES:	NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 August 2019
DATE OF JUDGMENT:	12 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 175
JUDGMENT APPEALED FROM:	Chen Wei & Anor v Na Yu (Unreported, Court of Appeal, Supreme Court of Victoria, Irving JR, 20 June 2019)

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PRACTICE AND PROCEDURE – Application to set aside Judicial Registrar’s orders refusing extension of time to file application for leave to appeal – Delay of 11 months – No adequate reasons for delay – Proposed appeal devoid of merit – Application refused –Supreme Court (General Civil Procedure) Rules 2015 rr 64.08, 64.42.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	In person
For the Respondent	In person

NIALL JA:

Introduction

On 29 September 2016, following a hearing lasting six days, spread over a number of months, the Victorian Civil and Administrative Tribunal (‘Tribunal’) dismissed a proceeding brought by the applicants for the recovery of money which they contended had been lent to the respondent and not repaid. The Tribunal gave detailed reasons.

The applicants sought leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998, and, on 31 January 2018, an Associate Judge dismissed that application. Her Honour gave detailed reasons.

On 7 March 2019, some 372 days outside of the time stipulated under r 64.42(8) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), the applicants applied for an extension of time to file an application for leave to appeal the order made by the Associate Judge. On 20 June 2019, the Judicial Registrar of this Court refused the extension application.

By email dated 1 July 2019, the applicants applied for the decision of the Judicial Registrar to be set aside or varied.[1] The application was referred to me by the Registrar pursuant to r 64.15(1) of the Rules and the parties attended an oral hearing at which they were self-represented.
[1]Rules r 64.42(8).

For the reasons that follow, I would refuse the application to set aside or vary the decision of the Judicial Registrar.

The facts

In order to understand the issues that arise in the proceeding, it is necessary to recount some of the facts, drawn from the decision of the Tribunal. The respondent is the estranged daughter-in-law of the applicants. The underlying dispute concerns the recovery of $39,600 that the applicants say they lent to the respondent. This amount was comprised of $38,000, alleged to be the unpaid balance of a $60,000 loan made by them to the respondent in May 2012, and $1,600 said to have been lent by Ms Xia to the respondent in or around August 2012 to fund the purchase of an airfare to China.

The respondent said that the $38,000 was paid to her pursuant to a loan agreement between the applicants and Mr Wen Tao Wei (‘Mr Wei Junior’). Although…

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 Wei v Na Yu

Details

AGLC: Chen Wei v Na Yu [2019] VSCA 175
Case: [2019] VSCA 175
Decision Date: 12 August 2019

CaseChat Overview and Summary

Chen Wei brought an application to set aside the orders of a Judicial Registrar that had denied an extension of time to file an application for leave to appeal. Na Yu opposed the application. The application was heard in the Supreme Court of New South Wales. The primary dispute was whether the Judicial Registrar's orders should be set aside to allow Chen Wei to file a late application for leave to appeal, and whether the delay in filing was adequately explained or if the proposed appeal lacked merit.

The court had to determine if there were sufficient grounds to set aside the Judicial Registrar's orders under the Supreme Court (General Civil Procedure) Rules 2015. Specifically, the court had to consider whether the delay of 11 months was adequately justified and whether the proposed appeal had a reasonable prospect of success. The court needed to weigh the principles of timeliness and fairness against the merits of the proposed appeal.

The court found that Chen Wei had not provided adequate reasons for the significant delay in filing the application for leave to appeal. The court also concluded that the proposed appeal was devoid of merit, lacking any reasonable prospect of success. Given these findings, the court refused the application to set aside the Judicial Registrar’s orders. The court emphasised the importance of adhering to procedural timelines and the necessity for applicants to provide convincing justifications for any delays.

No specific orders were made beyond the refusal of the application to set aside the Judicial Registrar's orders.

Orders