JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: CHENG -v- LAM [No 8] [2022] WASC 122
CORAM: TOTTLE J
HEARD: 15 DECEMBER 2021
DELIVERED : 12 APRIL 2022
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 for further orders to give effect to account - Turns on own facts
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 2] [2021] WASCA 196
Cheng v Lam [No 3] [2020] WASC 45
Cheng v Lam [No 4] [2020] WASC 175
Cheng v Lam [No 5] [2021] WASC 129
Cheng v Lam [No 6] [2021] WASC 265
Cheng v Lam [No 7] [2021] WASC 417
TOTTLE J:
Introduction
These reasons address further issues that have emerged in the taking of accounts following the dissolution of the partnerships between the parties. The taking of accounts was the subject of orders made by Chaney J on 28 June 2018 (the June 2018 orders) following the delivery of judgment in the action. These reasons assume familiarity with Chaney J's reasons,[1] the report of Registrar Whitbread on the taking of the accounts,[2] and my reasons for decision 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; Cheng v Lam[No 6] [2021] WASC 265; Cheng v Lam[No 7] [2021] WASC 417.
On 26 November 2021 I made orders that included an order to the effect that the Independent Accounting Expert (the IAE) be directed to adjust certain amounts contained in her earlier report of 2 February 2021.
The IAE adjusted her report in accordance with the orders and an amended report dated 3 December 2021 was attached to an affidavit filed and served on 6 December 2021. Relevantly the amended report recorded a net balance of $137,229 in favour of the plaintiff and the second defendant by counterclaim before any account was taken of funds held in an 'escrow account' pursuant to orders of the Family Court.[4]
[4] Affidavit of Louise Marie Sales affirmed 6 December 2021, annexure C - items 494 and 497 of Appendix C/9.
The issues for determination were brought before the court by a minute of proposed orders for directions filed by the first and second defendants on 8 December 2021 and a revised minute of orders filed by the plaintiff on 14 December 2021.
The plaintiff sought orders that the IAE be…
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CaseChat Overview and Summary
Tottle J observed that the taking of accounts was always going to be a difficult exercise due to the absence of formal agreements and conventional financial statements. The court emphasised that the taking of accounts was not a process that could be adapted to wind up the partnerships, and that the orders proposed by the parties fell outside the scope of the proceedings. The court adopted the IAE's report of 3 December 2021, but was not prepared to make any of the orders proposed by the parties. Tottle J reiterated the suggestion made by Chaney J that the parties look at alternative ways of resolving their differences, and listed the matter for a strategic conference to consider the steps required to finalise the accounts that could be the subject of directions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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