JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2017
DATE OF JUDGMENT:	31 January 2018
CASE MAY BE CITED AS:	Chen Wei & Anor v Na Yu
MEDIUM NEUTRAL CITATION:	[2018] VSC 6

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JUDICIAL REVIEW AND APPEALS – Application for leave to appeal pursuant to Section 148 of the Victorian Civil and Administrative Tribunal (VCAT) Act 1998 (Vic) – Finding by Deputy President that funds advanced by applicants to respondent’s bank account did not constitute a loan – Adverse findings on credibility of applicants’ witnesses by Deputy President - Whether failure of Deputy President to provide a legal characterisation for the transaction constitutes an error of law or amounts to inadequate reasons – Whether an appellate court can entertain or consider arguments on claims not advanced at first instance – Whether Deputy President arguably erred in failing to characterise payments as money had and received - No prima facie case established for an arguable error of law or inadequate reasons – Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, applied; Gaycel Pty Ltd v Heski Carpenters Pty Ltd [2017] VSC 450, referred to – Casdar Pty Ltd v Fanous [2017] VSC 616, referred to – Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Limited [2014] VSCA 353 , referred to - Application for leave to appeal dismissed

PRACTICE AND PROCEDURE – Procedural fairness - Self-represented applicants whose native language was not English – Whether translation inadequacies affected Deputy President’s assessment of witness credibility - Whether Deputy President sufficiently accommodated applicants’ circumstances so as to afford natural justice – Whether hearing a six day trial over four months amounts to procedural unfairness – No procedural unfairness - Application of Sections 97 and 98 of VCAT Act 1998 (VIC) – Shaw v Gadens Lawyers [2010] VSC 7, referred to

PRACTICE AND PROCEDURE – Application for removal of affidavit from Court file pursuant to Rule 27.07 of Supreme Court (General Civil Procedure) Rules 2015 – Affidavit filed without leave – Irrelevant to determination of issues in appeal – Scandalous and defamatory material – Application for removal of affidavit from Court file granted

CONTRACT - Whether an IOU document creates or merely evidences a liability from a debtor to a creditor –Thomas v Hollier (1984) 156 CLR 152, applied

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Gronow	Victorian Bar Pro-Bono Scheme
For the Respondent	Mr J Selimi	Radebe & Associates

HER HONOUR:

Introduction and Background

This proceeding is the latest event in a long-running dispute between the applicants, Mr Chen Wei and Ms Qi Yun Xia (‘applicants’), and their estranged daughter-in-law, Ms Na Yu (‘respondent’), concerning recovery of two alleged debts said to be owed by the respondent to the applicants. Before…

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 [2018] VSC 6
Case: [2018] VSC 6
Decision Date: 31 January 2018

CaseChat Overview and Summary

In the matter of Chen Wei v Na Yu, the applicants sought leave to appeal against a decision of the Deputy President of the Victorian Civil and Administrative Tribunal (VCAT) that found the funds advanced by the applicants to the respondent’s bank account did not constitute a loan. The applicants, self-represented and non-English speaking, argued that the Deputy President erred in not providing a legal characterisation for the transaction, which they submitted amounted to inadequate reasons. They also argued that the Deputy President arguably erred in failing to characterise the payments as money had and received. The applicants further contended that procedural unfairness had occurred due to translation inadequacies and the length of the trial.

The court considered whether the Deputy President’s failure to provide a legal characterisation for the transaction constituted an error of law or amounted to inadequate reasons. The court found that the applicants had not established a prima facie case for an arguable error of law or inadequate reasons. The court held that the Deputy President was not required to provide a legal characterisation of the transaction as it was not necessary to the resolution of the dispute. Furthermore, the court found that the applicants had not demonstrated that the Deputy President arguably erred in failing to characterise the payments as money had and received.

In relation to the applicants' contention of procedural unfairness, the court found that the applicants' circumstances were sufficiently accommodated to afford natural justice. The court held that the length of the trial and any translation inadequacies did not amount to procedural unfairness. The court also found that the application for removal of an affidavit from the Court file was granted as it was filed without leave and was irrelevant to the determination of the issues in the appeal. The court found that the affidavit contained scandalous and defamatory material.

In conclusion, the court dismissed the application for leave to appeal and granted the application for removal of the affidavit from the Court file. The applicants were ordered to pay the respondent’s costs of the application for leave to appeal and the application for removal of the affidavit from the Court file.

Orders