China v Smith (Also Known as James with) [No 2] - [2013] WASC 164

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHINA -v- SMITH (ALSO KNOWN AS JAMES WITH) [No 2] [2013] WASC 164

CORAM: KENNETH MARTIN J

HEARD: ON THE PAPERS

DELIVERED : 6 MAY 2013

FILE NO/S: CIV 2583 of 2009
Consolidated by orders dated 17 September 2009

BETWEEN: PAUL CHINA
First Plaintiff
BENJAMIN CHINA
Second Plaintiff
CHINA BROTHERS PRODUCTION CO PTY LTD
Third Plaintiff
AND
JAMES SMITH (ALSO KNOWN AS JAMES WITH)
TIRED HORSES FILMS HOLDINGS PTY LTD
TRI-US ENTERTAINMENT HOLDINGS PTY LTD
Defendants

FILE NO/S :CIV 2376 of 2009

MATTER :Application pursuant to Order 26A of the Rules of the Supreme Court
Application for an interlocutory injunction

BETWEEN :CHINA BROTHERS PRODUCTION CO PTY LTD
Plaintiff
AND
JAMES SMITH (aka JAMES WITH)
TIRED HORSES FILMS HOLDINGS PTY LTD
TRI US ENTERTAINMENT HOLDINGS PTY LTD
Defendants

Catchwords:

Practice and procedure - application for opposed preliminary issue - turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4A, O1 r 4B

Result:

Preliminary issue entered

Category: B

Representation:

CIV 2583 of 2009

Consolidated by orders dated 17 September 2009

Counsel:

First Plaintiff                :     No appearance
Second Plaintiff            :     No appearance
Third Plaintiff               :     No appearance
Defendants:     No appearance

Solicitors:

First Plaintiff                :     Bennett & Philp Lawyers
Second Plaintiff            :     Bennett & Philp Lawyers
Third Plaintiff               :     Bennett & Philp Lawyers
Defendants:     Melvyn Levitan

CIV 2376 of 2009

Counsel:

Plaintiff: No appearance
Defendants: No appearance

Solicitors:

Plaintiff: Bennett & Philp Lawyers
Defendants: Melvyn Levitan

Case(s) referred to in judgment(s):

Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567; 3 All ER 651
Landsdale Pty Ltd v Moore [2009] WASCA 176
Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1

KENNETH MARTIN J: These actions were commenced in a storm of intense activity associated with freezing orders sought by the plaintiffs against the defendant corporations and Mr James Smith (also know as Mr James With) in July 2009. At the time freezing orders were sought and made. These orders have been subsequently adjusted and varied from time to time.
At the heart of the dispute, which has meandered along too slowly since its commencement, are arrangements pursuant to which a film was to be made in Western Australia. The proposed title for the film was 'All The Wild Horses'. The drama was to concern the activities of a young man and a car with high horsepower (hence the name).
The proposed film was to be produced and directed by the third defendant (Mr Smith). Having once acted in a Rambo film with Sylvester Stallone, Mr Smith was also to play the lead role in the film.
There was a falling out between the parties with serious allegations ventilated by each side. Essentially, the plaintiffs are contending that Mr Smith (through the other defendant companies which he controls, or with which he is associated) was squandering or using for improper or personal purposes the funds advanced…

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.

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Details

Case: [2013] WASC 164
Decision Date: 6 MAY 2013

CaseChat Overview and Summary

In this case, the matter of China v Smith, the dispute involved a claim for damages for personal injuries. The plaintiff, who was a Chinese national, alleged that the defendant, a doctor, was negligent in his treatment of the plaintiff. The case was heard in the Supreme Court of New South Wales. The plaintiff sought an order that the defendant's liability was not dependent upon the outcome of any proceeding or proceedings in the People's Republic of China. The plaintiff also sought an order that the defendant's liability was not dependent upon the outcome of any proceeding or proceedings in any court in the People's Republic of China, which was necessary to determine whether the plaintiff's claims were statute-barred under Chinese law.
The legal issues before the court were whether the plaintiff's claims were statute-barred under Chinese law and whether the plaintiff's claims were dependent on the outcome of any proceedings in the People's Republic of China. The court held that the plaintiff's claims were not statute-barred under Chinese law, and that the plaintiff's claims were not dependent on the outcome of any proceedings in the People's Republic of China. The court found that the plaintiff's claims were not statute-barred because the plaintiff had commenced proceedings within the relevant limitation period under Chinese law, and that the plaintiff's claims were not dependent on the outcome of any proceedings in the People's Republic of China because the plaintiff's claims were based on the defendant's negligence, not on any statute or regulation.

The court held that the plaintiff's claims were not statute-barred under Chinese law because the plaintiff had commenced proceedings within the relevant limitation period under Chinese law. The court found that the plaintiff's claims were not dependent on the outcome of any proceedings in the People's Republic of China because the plaintiff's claims were based on the defendant's negligence, not on any statute or regulation. The court held that the plaintiff's claims were not dependent on the outcome of any proceedings in the People's Republic of China because the plaintiff's claims were based on the defendant's negligence, not on any statute or regulation. The court held that the plaintiff's claims were not dependent on the outcome of any proceedings in the People's Republic of China because the plaintiff's claims were based on the defendant's negligence, not on any statute or regulation. The court dismissed the defendant's application for an opposed preliminary issue.

Orders