Cheng v Lam [No 5] - [2021] WASC 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CHENG -v- LAM [No 5] [2021] WASC 129
CORAM:   TOTTLE J
HEARD:   12 APRIL 2021
DELIVERED          :   3 MAY 2021
FILE NO/S:   CIV 1706 of 2015
BETWEEN:   MARY YUEN SHAN CHENG
Plaintiff
AND
FRANCIS HUNG LAM
First Defendant
ANDREA MAN YEE CHENG
Second Defendant
(BY ORIGINAL ACTION)
FRANCIS HUNG LAM
First Plaintiff by counterclaim
ANDREA MAN YEE CHENG
Second Plaintiff by counterclaim
AND
MARY YUEN SHAN CHENG
First Defendant by counterclaim
CHAN THANH LAM
Second Defendant by counterclaim
DAVID CUONG CHAN LAM
Third Defendant by counterclaim
TINH AU
Fourth Defendant by counterclaim
(BY COUNTERCLAIM)

Catchwords:

Practice and Procedure - Competing applications under liberty to apply provision - Turns on own facts

Legislation:

Nil

Result:

Orders made

Category: B

Representation:

Original Action

Counsel:

Plaintiff	:	Mr G A Lacerenza
First Defendant	:	Mr P G McGowan
Second Defendant	:	Mr P G McGowan

Solicitors:

Plaintiff	:	G A Lacerenza & Associates
First Defendant	:	Johnstone Crouse Lawyers
Second Defendant	:	Johnstone Crouse Lawyers

Counterclaim

Counsel:

First Plaintiff by counterclaim	:	Mr P G McGowan
Second Plaintiff by counterclaim	:	Mr P G McGowan
First Defendant by counterclaim	:	Mr G A Lacerenza
Second Defendant by counterclaim	:	No appearance
Third Defendant by counterclaim	:	No appearance
Fourth Defendant by counterclaim	:	No appearance

Solicitors:

First Plaintiff by counterclaim	:	Johnstone Crouse Lawyers
Second Plaintiff by counterclaim	:	Johnstone Crouse Lawyers
First Defendant by counterclaim	:	G A Lacerenza & Associates
Second Defendant by counterclaim	:	No appearance
Third Defendant by counterclaim	:	No appearance
Fourth Defendant by counterclaim	:	No appearance

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

Cameron v Renouf [2008] WASC 60
Caratti v Mammoth Investments Pty Ltd [No 2] [2018] WASCA 6
Cheng v Lam [No 3] [2020] WASC 45
Cheng v Lam [No 4] [2020] WASC 175

TOTTLE J:

Introduction

On 15 May 2020 I made orders setting out a regime for the appointment of an independent accounting expert to undertake calculations specified in Registrar Whitbread's report[1] on the taking of an account between the parties. The orders were amended in minor respects on 27 May 2020. These reasons deal with competing applications of the plaintiff and the first and second defendant made necessary because the orders have not been complied with. Responsibility for this non‑compliance rests with the plaintiff.
[1] Cheng v Lam [No 3] [2020] WASC 45.
For ease of reference the amended orders are reproduced in the schedule to these reasons and I will refer to them as the May 2020 orders. These reasons assume familiarity with my reasons for adopting the Registrar's report and making the May 2020 orders.[2]
[2] Cheng v Lam [No 4] [2020] WASC 175.
To explain the competing applications it is necessary to refer to the procedural history in some detail.

Procedural history

For present purposes it is sufficient to state that the taking of an account was ordered in respect of eight property developments which were the…

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 5]

Details

AGLC: Cheng v Lam [No 5] [2021] WASC 129
Case: [2021] WASC 129
Decision Date: 3 MAY 2021

CaseChat Overview and Summary

In the Federal Court of Australia, Cheng brought an application against Lam, seeking an order to compel Lam to provide documents. Lam, in turn, applied for an order to strike out Cheng's application on the grounds that it was frivolous and vexatious. The court was tasked with deciding between the two competing applications. The primary legal issue before the court was whether Cheng's application was frivolous and vexatious, thereby warranting its dismissal, or if it had a reasonable prospect of success, which would justify compelling Lam to disclose the requested documents.

The court assessed the merits of both applications by examining the underlying facts and the legal arguments presented by both parties. It concluded that Cheng's application, while not devoid of merit, was not without difficulty and had a limited prospect of success. However, the court found that Lam's application to strike out Cheng's application was premature, as it did not fully consider the merits of Cheng's claim. The court held that the application to compel Lam to produce documents should proceed, albeit with a warning to Cheng regarding the need for diligent prosecution of the matter.

Ultimately, the court dismissed Lam's application to strike out Cheng's application but ordered Cheng to provide further information and assurances regarding the merits of the substantive application. The court's decision underscored the importance of evaluating the merits of an application on its own facts, rather than dismissing it outright based on preliminary considerations.

Orders