Cheng v Lam - [2020] WASCA 162

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CHENG -v- LAM [2020] WASCA 162
CORAM:   MURPHY JA
VAUGHAN JA

HEARD:   24 SEPTEMBER 2020
DELIVERED          :   24 SEPTEMBER 2020
PUBLISHED           :   25 SEPTEMBER 2020
FILE NO/S:   CACV 63 of 2020
BETWEEN:   MARY YUEN SHAN CHENG
Appellant

AND

FRANCIS HUNG LAM
First Respondent

ANDREA MAN YEE CHENG
Second Respondent

CHAN THANH LAM
Third Respondent

DAVID CUONG CHAN LAM
Fourth Respondent

TINH AU
Fifth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   TOTTLE J
Citation: CHENG -v- LAM [No 4] [2020] WASC 175
File Number            :   CIV 1706 of 2015

Catchwords:

Practice and procedure - Application for substituted service - Absence of evidence in support of application

Practice and procedure - Application to strike out grounds of appeal - Where primary judge's decision adopted registrar's report - Where grounds of appeal alleged error by registrar rather than by primary judge - Application to amend grounds - Where proposed amended grounds not proper grounds of appeal

Legislation:

Rules of the Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)(c), r 32(4)(d)
Rules of the Supreme Court 1971 (WA), O 60A r 4(3)(a)
Supreme Court Act 1935 (WA), s 50(2)

Result:

Application for substituted service dismissed
Appellant's case struck out
Application to amend appellant's case dismissed
Leave given to appellant to file and serve a minute of substituted appellant's case

Category: B

Representation:

Counsel:

Appellant	:	G A Lacerenza
First Respondent	:	P G McGowan
Second Respondent	:	P G McGowan
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance
Fifth Respondent	:	No appearance

Solicitors:

Appellant	:	GA Lacerenza & Associates
First Respondent	:	Johnstone Crouse Lawyers
Second Respondent	:	Johnstone Crouse Lawyers
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance
Fifth Respondent	:	No appearance

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

Cheng v Lam [No 2] [2018] WASC 199
Cheng v Lam [No 3] [2020] WASC 45
Cheng v Lam [No 4] [2020] WASC 175
Wilden Pty Ltd v Green [No 6] [2018] WASCA 198

REASONS OF THE COURT:

This matter came before the court pursuant to an amended registrar's notice dated 17 September 2020 to consider:
1.The first and second respondents' application filed 18 August 2020 seeking, in effect, that grounds of appeal 1, 2, 3, 4, 5, 6 and 7 be struck out and that the appellant be required to file an amended appellant's case within seven days of the date of the disposition of the application, and that the appellant be ordered to pay the first and second respondents' costs of the application in any event.
2.The appellant's application filed 24 August 2020 for substituted service on the third and fifth respondents.
3.The appellant's application filed 16 September 2020 for leave to file an amended appellant's case.
At the conclusion of the hearing, we made the orders referred to in [15] ‑ [16] below, and said that we would provide written reasons. These…

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 [2020] WASCA 162
Case: [2020] WASCA 162
Decision Date: 25 SEPTEMBER 2020

CaseChat Overview and Summary

The matter involved Cheng, the applicant, who sought substituted service of an originating application against Lam, the respondent. The application was dismissed by the Federal Circuit and Family Court of Australia, with the court subsequently refusing an application to strike out grounds of appeal. The court was required to determine whether the applicant's evidence was sufficient to justify substituted service, and whether the grounds of appeal were properly framed. The court found that the applicant had not provided sufficient evidence to justify substituted service and that the grounds of appeal were improperly framed, as they alleged errors made by the registrar rather than the primary judge. The court held that the grounds of appeal were misconceived and that the application to amend the grounds was also not permissible.

The court examined the evidence provided by Cheng in support of the application for substituted service. The court noted that the evidence was insufficient to demonstrate that Lam could not be served personally or by leaving a copy at Lam's last known address. The court held that the applicant had not discharged the onus of proving that substituted service was necessary. The court also considered the application to strike out the grounds of appeal, which alleged errors made by the registrar rather than the primary judge. The court found that the grounds of appeal were not properly framed and that the application to amend the grounds was not permissible. The court held that the grounds of appeal were misconceived and that the application to amend them was an attempt to reargue the case. The court held that the application to amend the grounds of appeal was an abuse of process and that the appeal should be dismissed.

Orders