Deng Da Zhan and Ors (According to the schedule annexed) v CHEN Haijing (aka CRYSTAL CHEN)

[2013] VSCA 315

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0154

DENG DA ZHAN & ORS (According to the schedule annexed)	Appellants
	v
CHEN HAIJING (aka CRYSTAL CHEN)	Respondent

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JUDGES	OSBORN and BEACH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 November 2013
DATE OF JUDGMENT	1 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 315
JUDGMENT APPEALED FROM	Haijing v Zhan & Ors [2013] VCC 1261 (Judge Kennedy)

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PRACTICE AND PROCEDURE – Application for stay of execution pending hearing and determination of the appeal – Judgment awarded against the applicants – Stay sought on the basis that the respondent is a Chinese citizen and might leave this jurisdiction or remit the judgment sum to China, rendering the appeal nugatory – Where respondent entitled to reside in Australia for the present and has no intention of leaving the jurisdiction or returning to China – Where applicants willing to caveat a property belonging to them by way of security – No special circumstances – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr F Lim (solicitor)	Francis Lim Barristers & Solicitors
For the Respondent	Mr P S Noonan	HWL Ebsworth

OSBORN JA:

1. The appellants seek a stay of a judgment given in the County Court by Judge Kennedy on 11 October 2013 against them in the sum of $142,763.90.[1]  The judgment was given in respect of a claim arising out of dealings between the parties concerning a joint venture entered into with respect to a cake shop business.  The respondent succeeded in claims that the first appellant was guilty of misleading and deceptive conduct constituted by misrepresentations and that the third appellant breached the joint venture agreement. 

   [1]Although sought pursuant to r 64.25 the jurisdiction is found in s 74(4) of the County Court Act. 

1. The notice of appeal sets out some 17 grounds of appeal alleging that her Honour erred in fact and law:

·    in her ultimate conclusions;

·    in findings with respect to the joint venture agreement; and

·    in findings with respect to misrepresentations. 

1. These grounds do not comply with r 64.05 for the reasons adumbrated by Phillips JA in State of Victoria v Bacon.[2]

   [2](1998) 4 VR 269, 285.

1. In the absence of a notice of appeal in proper form it is difficult to be satisfied that the appellants have arguable grounds.  Certainly there is no obvious error in her Honour’s reasons.  Put simply the appellants lost on the facts for reasons which her Honour explains by reference to the evidence. 

1. This said, the application was brought on the basis that because the respondent has no visa permitting her to lawfully remain in Australia there is a real risk that if the judgment moneys were paid to the respondent she would either leave this jurisdiction or remit the moneys to China.  It was submitted that in either eventuality any success upon appeal would be nugatory.[3] 

   [3]Cellante v G Kallis Industries Pty Ltd (1991) 2 VR 653; Maher v Commonwealth Bank of Australia [2008] VSCA 122.

1. It is unnecessary to set out the full extent of the affidavit material now filed and served on behalf of the respondent.  It is sufficient to say that that material shows that in fact the respondent is entitled to reside in this country until August 2016.  Further, it provides an overwhelming case that the respondent has no intention of leaving the jurisdiction, and in particular has no intention of returning to China.

1. I would refuse the application.

1. Firstly, I do not accept that the fact that the respondent is of Chinese nationality of itself establishes special circumstances in the sense that the authorities require for an application of this kind.  Prima facie, the respondent is entitled to the fruits of the judgment which she has obtained.

1. Secondly, the notice of appeal is incompetent and in my view does not state any proper grounds for challenging the trial judge's decision.

1. Thirdly, the judgment, at least with respect to misleading and deceptive conduct, is essentially based on findings of fact significantly informed by findings as to credit adverse to the appellants.  A challenge with respect to such findings is notoriously difficult to challenge on appeal and on their face the prospects of such a challenge succeeding are low.[4]

   [4]Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237; Fox v Percy (2003) 214 CLR 118, 125-8 [23]-[29].

1. For completeness, I should add that the appellants have offered to give security for a stay by way of a caveat on the title to a property owned by them in Punt Road.  The material lodged with the Court does not demonstrate satisfactorily that this would constitute an effective security.

1. Furthermore, in the course of her reasons for judgment her Honour made strongly adverse findings with respect to the appellants’ credibility as witnesses and as to their honesty.  Affidavit material filed on behalf of the respondent raises serious

questions as to their credit-worthiness arising out of the winding-up of a company which formerly conducted their business.  The affidavit also indicates that the appellants have refused to grant a second mortgage over the Punt Road property in order to adequately secure the respondent’s interests. 

1. For the reasons I have already given, however, even if I were satisfied that some appropriate security were available in the present case, I would not grant a stay.

1. In all the circumstances I would dismiss the application.

BEACH JA:

1. I agree. 

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SCHEDULE OF PARTIES

S APCI 2013 0154
BETWEEN:
DENG DA ZHAN	Firstnamed Appellant
LIU YING	Secondnamed Appellant
DENG CHUANG	Thirdnamed Appellant
LIFE OCEAN PTY LTD (ACN 075 227 100)	Fourthnamed Appellant
- and -
CHEN HAIJING (aka CRYSTAL CHEN)	Respondent