Cheng v Lam [No 8] - [2022] WASC 122

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…

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 8]

Details

AGLC: Cheng v Lam [No 8] [2022] WASC 122
Case: [2022] WASC 122
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Cheng v Lam [No 8] was heard by Tottle J on 15 December 2021, with reasons for judgment delivered on 12 April 2022. The case involved a dispute between the parties concerning the taking of accounts following the dissolution of partnerships engaged in property developments. The primary issue for determination was whether the court should adopt the report of the Independent Accounting Expert (IAE), and if so, whether any further adjustments were required to that report. The plaintiff sought orders for the IAE to make further adjustments to her report or, alternatively, to prepare balance sheets and capital accounts for the eight partnerships. The first and second defendants sought orders for the plaintiff and the second defendant to the counterclaim to account for the value of unsold partnership properties they wished to keep in their names, or alternatively, for the properties to be sold and the proceeds of sale applied in the payment of debts and liabilities.

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