Cheng v Lam [No 7] - [2021] WASC 417

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   CHENG -v- LAM [No 7] [2021] WASC 417
CORAM:   TOTTLE J
HEARD:   13 OCTOBER 2021
DELIVERED          :   26 NOVEMBER 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

Catchwords:

Practice and procedure - Application to vary orders - Application dismissed

Practice and procedure - Construction of registrar's report - Specific finding to be accorded precedence over general finding - Directions given

Practice and procedure - Construction of orders and reasons for judgment in partnership dispute - Whether finding of in specie distributions made - No finding of in specie distribution made

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

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

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 address four issues that must be determined before accounts, taken by Registrar Whitbread in accordance with orders made by Chaney J on 28 June 2018, can be completed.[1] The reasons assume familiarity with Chaney J's reasons for making those orders, the registrar's report,[2] and with my reasons for decisions concerning earlier interlocutory disputes.[3]
[1]         Cheng v Lam [No 2] [2018] WASC 199.
[2]         Cheng v Lam [No 3] [2020] WASC 45.
[3]         Cheng v Lam [No 4] [2020] WASC 175; Cheng v Lam[No 5] [2021] WASC 129.
Three of the issues are the subject of an application brought by the plaintiff by way of a minute of proposed orders filed on 14 September 2021. By that minute the plaintiff sought to vary the orders made on 3 May 2020 and varied on 27 May 2020 (collectively 'the May 2020 orders') as follows:
(a)To remove at Item 486 rent incorrectly claimed of $156,000.
(b)To recalculate Items 471 and 474 which add to $37,077 by agreed contributions by the Plaintiff at Items 36, 84, 184, 149, 195, 287 and 352 and to increase Item 474 by $7,313 to $44,390.00.
(c)To recalculate the rent at Item 487 regarding 78C Edgecumbe Street, Como to consider the information provided by the Plaintiff by way of rent and expenses, invoices, and bank statements and to adjust Item 487 by reducing the rent from $169,000 to $98,499.02 or such sum as the Plaintiff's schedule of rentals received and supporting documents.
Although the plaintiff's minute of orders refers to a recalculation of item 487 (an allowance claimed by the first and second defendants in respect of rental income received by the plaintiff from a property that had been the subject of a partnership,…

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 7]

Details

AGLC: Cheng v Lam [No 7] [2021] WASC 417
Case: [2021] WASC 417
Decision Date

CaseChat Overview and Summary

The plaintiff, Mary Yuen Shan Cheng, sought to vary certain orders made by the court in the ongoing partnership dispute between the plaintiff, the first defendant, Francis Hung Lam, and the second defendant, Andrea Man Yee Cheng. The application brought by the plaintiff sought to remove an incorrect claim of rent, recalculate certain items based on agreed contributions, and adjust the rent regarding a property at 78C Edgecumbe Street, Como. Additionally, the plaintiff argued that the court had made a finding of in specie distributions of certain partnership properties. Justice Tottle considered the application and the issues raised by the plaintiff. Regarding the allowance for rental income from 250C Ewen Street, the court found that no allowance should be made in favour of the defendants, as the plaintiff was not required to account for rental income from the property. The court held that the specific finding of the registrar should take precedence over the general finding, and the allowance for rental income should be removed from the defendants' account. Concerning the recalculation of items 471 and 474, the court dismissed the plaintiff's application, as the application could not be brought under the slip rule, the registrar's report had been adopted, and there needed to be finality in litigation. Regarding the rental income from 78C Edgecumbe Street, the court found that the plaintiff had not let the property out before September 2012 and had paid the local government rates and insurance premiums claimed. The net rental income for which the plaintiff should account was calculated to be $109,403. Lastly, the court held that there was no finding of in specie distributions made by the previous judge, and therefore, the properties could still be subject to orders for sale on the final winding up of the partnerships. The plaintiff's application was partially successful in the issue concerning the allowance for rental income for 250C Ewen Street, but the court did not vary the May 2020 orders. The court will hear from the parties regarding the terms of the orders to be made and costs.

Orders