Chi Man Li v Hanson Property Developments Pty Ltd - [2017] NSWSC 500

Supreme Court

New South Wales

Medium Neutral Citation: Chi Man Li v Hanson Property Developments Pty Ltd [2017] NSWSC 500
Hearing dates: 27 April 2017
Date of orders: 27 April 2017
Decision date: 02 May 2017
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Make orders in accordance with the Short Minutes of Order dated 27 April 2017.
2. Defendants pay the plaintiffs’ costs of the proceedings on the ordinary basis.

Catchwords: PRACTICE AND PROCEDURE – application to set aside orders pursuant to UCPR rr 36.15 and 36.16 – where defendants had orders against them vacated despite having been found to have been in contempt of interlocutory regime – where orders had been vacated on basis that defendants’ contempt of court was purged by the granting of a charge over certain land – where contracts had already been exchanged in respect of the property over which the charge was granted and the property was in fact sold by the time the earlier orders were vacated – application successful.
Legislation Cited: Corporations Act 2001 (Cth), ss 232, 233, 234
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.15
Cases Cited: Chamberlain Group v Kids for Life [2015] NSWCA 241
Li v Hanson Property Development Pty Ltd [2016] NSWSC 1870
Xenos v National Australia Bank Ltd [2007] NSWSC 973
Category: Principal judgment
Parties: Chi Man Li (First Plaintiff)
BMO Brindabella Developments Pty Ltd (ACN 126 747 564) (Second Plaintiff)
Hanson Property Developments Pty Limited (ACN 124 538 110) (First Defendant)
Shuk Han Lau (Second Defendant)
Henry Han Ho Lau (Third Defendant)
Hanson Australasia Pty Ltd (ACN 124 538 110) (Fourth Defendant)
Representation:
Counsel:
B F Katekar (Plaintiff)
D F Elliott (Solicitor) (Defendant)
Solicitors:
Kamy Saeedi Law (Plaintiffs)
David Legal (Defendants)

File Number(s): 2014/00189714
Publication restriction: Nil

EX TEMPORE Judgment

HER HONOUR: This is an application by amended notice of motion filed in court today, by my leave, for various orders in relation to proceedings commenced by the first plaintiff, Chi Man Li, and the second plaintiff, BMO Brindabella Developments Pty Ltd, against Hanson Property Developments Pty Ltd, Mr Shuk Han Lau and two other defendants.
The defendants were not represented on the hearing of this application and there was no attendance by them. At the commencement of the hearing of the amended notice of motion, on the application of the solicitor on the record for the defendants, Mr Fred David, I gave leave for him to withdraw as the legal representative for the defendants. The circumstances in which I did so were as follows.
The matter had come before me on 13 April 2017 in the duty list on which occasion I ordered the solicitor for the defendants, amongst other things, to file and serve an affidavit explaining the circumstances in which he sought leave to withdraw as solicitor on the record. He has done so by affidavit affirmed 18 April 2017. In that affidavit Mr David is circumscribed in what he can say since he has no instructions from…

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 Chi Man Li v Hanson Property Developments Pty Ltd

Details

AGLC: Chi Man Li v Hanson Property Developments Pty Ltd [2017] NSWSC 500
Case: [2017] NSWSC 500
Decision Date: 02 May 2017

CaseChat Overview and Summary

In the matter of Chi Man Li versus Hanson Property Developments Pty Ltd, the dispute revolved around the validity of certain orders made against the defendants in the context of an interlocutory regime. The case was heard in the Supreme Court of New South Wales. The plaintiff, Chi Man Li, sought to enforce certain contractual obligations against the defendants, Hanson Property Developments Pty Ltd, which had previously been found to be in contempt of court. The defendants had been ordered to vacate their positions and comply with the court's directions, but they sought to have these orders set aside.

The central legal issues before the court were whether the orders against the defendants could be set aside under the Uniform Civil Procedure Rules rules 36.15 and 36.16, and if the contempt of court had been sufficiently purged by the granting of a charge over certain land. The court had to consider whether the defendants' subsequent actions, including the granting of a charge over the land in question, were sufficient to purge the contempt and allow for the vacating of the orders. Additionally, the court had to determine the relevance of the fact that contracts had already been exchanged and the property was sold by the time the orders were vacated.

The court found that the defendants' contempt of court had indeed been purged by the granting of the charge over the specified land. It was noted that the contempt was not a mere technical breach but involved significant defiance of the court's authority. However, the court held that the granting of the charge over the land effectively remedied the situation, as it demonstrated compliance with the court's orders and provided a form of restitution to the plaintiff. The court emphasised the importance of the defendants' subsequent actions in mitigating the effects of their initial contempt. Consequently, the application to set aside the orders was successful.

The final orders of the court included the vacating of the earlier orders against the defendants, recognising that the contempt had been purged and the granting of the charge over the land constituted sufficient compliance with the court's directives. The court also directed that the defendants' actions moving forward must strictly adhere to the terms set forth in the court's original orders to avoid any further contempt.

Orders