Cheng v Lam [No 6] - [2021] WASC 265

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CHENG -v- LAM [No 6] [2021] WASC 265
CORAM:   TOTTLE J
HEARD:   21 JULY 2021
DELIVERED          :   5 AUGUST 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 - Directions to be made to give effect to account - Turns on own facts

Legislation:

Nil

Result:

Orders made

Category: B

Representation:

Original Action

Counsel:

Plaintiff	:	Mr M A Tedeschi
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 M A Tedeschi
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):

Cheng v Lam [No 2] [2018] WASC 199
Cheng v Lam [No 3] [2020] WASC 45
Cheng v Lam [No 4] [2020] WASC 175
Cheng v Lam [No 5] [2021] WASC 129

TOTTLE J:

Introduction

These reasons concern the further directions required to complete the accounts undertaken by Registrar Whitbread in accordance with the orders made by Chaney J on 28 June 2018.[1] Each side of this long running partnership dispute has proposed a set of directions.[2] The proposals differ very significantly in their intent and effect. These reasons assume familiarity with the reasons for adopting the registrar's report published on 22 May 2020[3] and the reasons for approving the appointment of Ms Suzanne Delbridge as an independent accounting expert published on 3 May 2021.[4]
[1] The account is the subject of the Registrar's report published as Cheng v Lam [No 3] [2020] WASC 45 following Chaney J's judgment delivered on 28 June 2018 Cheng v Lam [No 2] [2018] WASC 199.
[2] The plaintiff has filed and served two minutes of directions - the first dated 28 June 2021 and the second dated 19 July 2021 and has served outlines of submissions in support of each minute.
[3] Cheng v Lam [No 4] [2020] WASC 175.
[4] Cheng v Lam [No 5] [2021] WASC 129.
The issues addressed…

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 6]

Details

AGLC: Cheng v Lam [No 6] [2021] WASC 265
Case: [2021] WASC 265
Decision Date

CaseChat Overview and Summary

This case involved a long-running partnership dispute between Mary Yuen Shan Cheng, Francis Hung Lam, and Andrea Man Yee Cheng. The Supreme Court of Western Australia was tasked with deciding on the further directions required to complete the accounts undertaken by Registrar Whitbread. The court needed to address several issues, including whether there were errors or omissions in the report prepared by the Independent Accounting Expert (IAE), how rental income and the capital value of 78C Edgecumbe Street should be treated for the purpose of the account, and how income and expenses incurred after the dissolution date should be treated. The plaintiff had proposed directions that the court found to be beyond the scope of the task assigned to the IAE. The court also found that the plaintiff's expert evidence exceeded the leave granted to adduce evidence directed to any errors or omissions in the IAE's calculations. The court rejected the plaintiff's proposed directions and instead provided directions for the finalisation of the account, including the treatment of rental income and the capital value of 78C Edgecumbe Street. The court also addressed the issue of income and expenses incurred after the dissolution date and the sale of partnership properties. The court concluded that not all observations made in the reasons were the subject of submissions at the last directions hearing and provided the parties with the opportunity to make further submissions on any matters that the parties had not had an opportunity to address.

Orders