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Cheng v Lam

Cheng v Lam

Case [2023] WASCA 65 20 April 2023

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CHENG -v- LAM [2023] WASCA 65
CORAM:   MURPHY JA
VAUGHAN JA

HEARD:   20 APRIL 2023
DELIVERED          :   20 APRIL 2023
PUBLISHED           :   26 APRIL 2023
FILE NO/S:   CACV 50 of 2022
BETWEEN:   MARY YUEN SHAN CHENG
Appellant
AND
FRANCIS HUNG LAM
ANDREA MAN YEE CHENG
Respondents

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   TOTTLE J
Citation: CHENG -v- LAM [No 8] [2022] WASC 122
File Number            :   CIV 1706 of 2015

Catchwords:

Practice and procedure - Appeal - Application for security for costs - Appeal against orders of primary judge in relation to taking of an account - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)(a), r 32(4)(b)

Result:

Application allowed
Security for costs ordered

Category: B

Representation:

Counsel:

Appellant	:	G A Lacerenza
Respondents	:	P G McGowan

Solicitors:

Appellant	:	G.A Lacerenza & Associates
Respondents	:	Johnstone Crouse Lawyers

Case(s) referred to in decision(s):

Allmark v Mossensons (a firm) [2006] WASCA 127
Cheng v Lam [No 2] [2018] WASC 199
Cheng v Lam [No 2] [2021] WASCA 196
Cheng v Lam [No 3] [2020] WASC 45
Cheng v Lam [No 4] [2020] WASC 175
Cheng v Lam [No 5] [2021] WASC 129
Cheng v Lam [No 7] [2021] WASC 417
Cheng v Lam [No 8] [2022] WASC 122
Cheng v Lam [No 9] [2022] WASC 252
Frigger v Kitay [2016] WASCA 173
George 218 Pty Ltd v Bank of Queensland Limited [2016] WASCA 56
Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45

REASONS OF THE COURT:

Introduction

On 20 April 2023 we heard an application by the first and second respondents filed 24 February 2023, for security for costs.
This appeal is against the orders of Tottle J, made on 15 December 2021, to adopt the amended report of an Independent Accounting Expert (IAE), Ms Suzanne Delbridge, in relation to the taking of an account in the primary proceedings. The reasons for that decision were published in Cheng v Lam [No 8].[1]
[1] Cheng v Lam [No 8] [2022] WASC 122 (primary decision).
On 20 April 2023, we ordered that the appellant provide security for costs of the appeal in an amount of $13,000. We said we would provide written reasons and these are our reasons.

Procedural history

The parties have been in litigation for a number of years. This is the third appeal brought before this court by the appellant.
The appellant, Mary Yuen Shan Cheng (Mary) is the former wife of Chan Thanh Lam (Chan) who was the second defendant by counterclaim in proceedings CIV 1706 of 2015 in the primary court. The first respondent, Francis Hung Lam (Frank) and the second respondent, Andrea Man Yee Cheng (Andrea) are husband and wife (together the respondents). Frank and Chan are brothers.[2]

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 Cheng v Lam

Details

AGLC: Cheng v Lam [2023] WASCA 65
Case: [2023] WASCA 65
Decision Date

CaseChat Overview and Summary

This appeal is against the orders of Tottle J, made on 15 December 2021, to adopt the amended report of an Independent Accounting Expert (IAE), Ms Suzanne Delbridge, in relation to the taking of an account in the primary proceedings. The appellant, Mary Yuen Shan Cheng (Mary), appeals the decision to adopt the IAE's amended report, arguing that the judge should have further directed the IAE to comply with the Registrar's directions and prepare balance sheets and capital accounts for the partnerships. The respondents, Frank and Andrea, have applied for security for costs, submitting that the appeal has poor prospects of success, Mary has consistently failed to pay costs in the respondents' favour, and she does not have sufficient assets to satisfy a costs order if the appeal were unsuccessful.

The court considered the principles of ordering security for costs, including the appellant's prospects of success, non-compliance with earlier costs orders, and the appellant's ability to satisfy a costs order if the appeal fails. In this case, the court found that it was in the interests of justice to grant the application for security. The appeal did not appear to have reasonable prospects of success, as the grounds of appeal lacked clarity and did not comply with the Rules. Furthermore, Mary had consistently failed to pay costs orders against her in related litigation, amounting to over $390,000. The amount sought for security for costs was reasonable and would not stultify the appeal.

The court made the following orders: 1. On or before 4.00 pm on 5 May 2023, the appellant give security for the respondents' costs of the appeal in the sum of $13,000 by payment of that amount into court. 2. The appeal be stayed until such time as the appellant has paid the sum of $13,000 into court. 3. If the appellant does not comply with order 1, the respondents have leave to apply, on seven days' notice, to have the appeal dismissed.

Orders