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Cheng v Lam [No 2]

Cheng v Lam [No 2]

Case [2021] WASCA 196 25 November 2021

Civil Litigation & Procedure

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CHENG -v- LAM [No 2] [2021] WASCA 196
CORAM:   MURPHY JA
BEECH JA
VAUGHAN JA

HEARD:   1 NOVEMBER 2021
DELIVERED          :   25 NOVEMBER 2021
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

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 - Taking of account - Dissolution of informal partnership between parties - Taking of account in accordance with orders of judge - Where judge ordered account to be taken before a registrar - Adoption by judge of registrar's report - Principles - Whether primary judge erred in adopting registrar's report - Turns on own facts

Legislation:

Nil

Result:

Leave to amend ground 1 granted
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	M A Tedeschi
First Respondent	:	P G McGowan
Second Respondent	:	P G McGowan
Third Respondent	:	No appearance
Fourth 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

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

Agricultural Land Management Ltd v Jackson [No 2] [2014] WASC 102; (2014) 48 WAR 1
Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25
Cheng v Lam [No 2] [2018] WASC 199
Cheng v Lam [No 3] [2020] WASC 45
Cheng v Lam [No 4] [2020] WASC 175
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Glazier Holdings Pty Ltd v Australian Men's Health Pty Ltd [No 2] [2001] NSWSC 6
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44
Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission [2016] NSWCA 298; (2016) 116 ACSR 473
Re Ellis; Ellis v Ellis [2015] WASC 77; (2015) 14 ASTLR 475
Rowe v National Australia Bank Limited [2019] WASCA 140; (2019) 56 WAR 1
Starr v Minister for Pensions [1946] 1 KB 345
Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317
Wenco Industrial Pty Ltd v WW Industries Pty Ltd [2009] VSCA 191; (2009) 25 VR 119
Wilden Pty Ltd v Green [No 6] [2018] WASCA 198

JUDGMENT OF THE COURT:

Introduction

It is not now in dispute that the appellant and the respondents, or some…

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 [No 2]

Details

AGLC: Cheng v Lam [No 2] [2021] WASCA 196
Case: [2021] WASCA 196
Decision Date

CaseChat Overview and Summary

The appeal concerns the taking of an account of the financial dealings of a group of family members who were involved in a number of property development projects. The family members were partners in the projects. The proceedings have involved extensive litigation and were the subject of a report prepared by a registrar appointed by the Supreme Court of Western Australia. The primary judge adopted the report, save for one item. The appellant, Mary Yuen Shan Cheng, appeals against the primary judge's decision to adopt the registrar's report, advancing 12 grounds of appeal. Leave to appeal is required because the primary judge's orders were interlocutory in nature. For the reasons that follow, leave to appeal should be refused because none of the grounds of appeal has sufficient merit to justify a grant of leave to appeal. The primary judge's decision to adopt the report was correct. The appellant's grounds of appeal do not reveal any error of principle, or any error of the nature identified in Wenco Industrial Pty Ltd v WW Industries Pty Ltd and Wilden Pty Ltd v Green. The appellant's submissions in support of the grounds of appeal do no more than pay lip service to the legal principles governing the question of whether a court should adopt a referee's report. Rather, the tenor of the appeal is to contend that the registrar was wrong to allow or fail not to take into account various items as complained about in the taking of the account. The primary judge correctly rejected those contentions.

Orders