Chiu v Sheh - [2021] NSWSC 19

Supreme Court

New South Wales

Medium Neutral Citation: Chiu v Sheh [2021] NSWSC 19
Hearing dates: 4 & 7 December 2020
Date of orders: 21 January 2021
Decision date: 21 January 2021
Jurisdiction: Equity
Before: Slattery J
Decision:
Leave granted to withdraw the admission. Costs of the motion will be each party’s costs in the proceedings.

Catchwords:
CIVIL PROCEDURE – Admissions – Admission of facts – Withdrawal of admissions – Uniform Civil Procedure Rules 2005, r 12.6 - defendant admits in his defence the terms of a loan made to him – defendant says he did not understand the allegation in the statement of claim to which his pleading was an answer – defendant brings motion for leave to withdraw the admission – plaintiff opposes withdrawal of the admission – defendant’s lack of understanding challenged – evidence has not yet been filed in the proceedings – whether leave should be granted to withdraw the admission.

Legislation Cited:
Uniform Civil Procedure Rules 2005, r 12.6

Cases Cited:
Hill End Gold Ltd v First Tiffany Resource Corp [2008] NSWSC 866
Mann v Carnell (1999) 201 CLR 1
Nanevski Developments Pty Ltd v Slaveski [2020] NSWSC 617
Sergi v Sergi [2019] NSWSC 865
Stafford v Kekatos (No. 2) [2008] NSWSC 1044

Texts Cited:
LexisNexis Australia, Halsbury’s Laws of Australia (2015), [120-1435]

Category: Consequential orders (other than Costs)
Parties: Plaintiff: Dick Foo Chiu
First Defendant: Phillip Sheh
Second Defendant: Clifford & Mary Sheh Pty Ltd
Representation:
Counsel:
Plaintiff/Respondent on the motion: M. Maconachie
First defendant/Applicant on the motion: L. Chapman
Second defendant:
Solicitors:
Plaintiff/Respondent on the motion: Jeremy David Noonan, Benjafield & Associates Lawyers
First defendant/Applicant on the motion: Evon Siu, Avantro
Second defendant: Robert Ramsey and May Mansour, Impact Lawyers & Migration Agents

File Number(s): 2019/208903
Publication restriction: No

Judgment

The plaintiff, Mr Dick Foo Chiu, brings these proceedings on behalf of a partnership to recover a loan of $2,800,010.00 that he alleges the partnership made to his nephew, the first defendant, Mr Philip Sheh. Mr Chiu claims the other member of the partnership is Clifford and Mary Sheh Pty Ltd (“CMS”), a company controlled by Mr Phillip Sheh’s parents. CMS is the second defendant in the proceedings.
In this interlocutory application, Mr Sheh seeks leave by motion dated 20 May 2020, brought pursuant to Uniform Civil Procedure Rules 2005, r 12.6 (“UCPR”), to withdraw an admission he made in paragraph 4 of his Defence dated 7 August 2019 to Mr Chiu’s Statement of Claim. Mr Chiu opposes the withdrawal of the admission. CMS appeared but took no submissions on the application.
Paragraph 4 of Mr Sheh’s Defence admits paragraph 4 of the Statement of Claim, which makes the following allegation about the terms of the loan said to have been made between the Chiu/CMS partnership and Mr Sheh:

“4. It was a term of the Loan Agreement that the defendant would repay upon the settlement of the sale of the defendant’s property at Lindfield or upon request all…

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 Chiu v Sheh

Details

AGLC: Chiu v Sheh [2021] NSWSC 19
Case: [2021] NSWSC 19
Decision Date: 21 January 2021

CaseChat Overview and Summary

In the matter of Chiu v Sheh, the plaintiff, Mr Chiu, sought to enforce a loan agreement against the defendant, Mr Sheh. The dispute centred on the terms of the loan and whether Mr Sheh had fully understood and accepted those terms when he made his admission in his defence. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the defendant could withdraw his admission of the terms of the loan agreement, given that he claimed he did not understand the allegation to which his pleading was an answer. The court was required to consider the provisions of rule 12.6 of the Uniform Civil Procedure Rules 2005, which governs the withdrawal of admissions. The court also needed to assess the credibility of Mr Sheh's assertion that he did not understand the allegation in question and whether this provided a sufficient basis for allowing the withdrawal of his admission.

The court found that the defendant's lack of understanding of the allegation was not sufficient grounds for allowing him to withdraw his admission. The court noted that the defendant had ample opportunity to seek clarification on the terms of the loan agreement before making his admission and that his failure to do so did not constitute a justifiable basis for withdrawing his admission. The court also highlighted that the defendant had not yet filed evidence in support of his motion to withdraw the admission, which further undermined his case. Consequently, the court denied the defendant's motion for leave to withdraw his admission, upholding the terms of the loan agreement as admitted by the defendant in his pleadings.

Orders