Gao, Peng Yuan v Zhang, Yan
[2002] VSCA 8
•13 February 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 5934 of 2001
| PENG YUAN GAO | Applicant |
| v. | |
| Respondent YAN | ZHANG |
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| JUDGES: | PHILLIPS, BATT and VINCENT, JJ.A. |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 February 2002 |
| DATE OF JUDGMENT: | 13 February 2002 |
| MEDIUM NEUTRAL CITATION | [2002] VSCA 8 |
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Practice and procedure – Proceeding commenced by writ claiming damages – Interlocutory application for Mareva and order for disclosure of assets – Application dismissed but made again, in part only – Proceeding dismissed – Order set aside and order substituted dismissing the application only.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Ms L. Hannon | Clayton Utz |
| PHILLIPS, J.A.: |
This is an appeal brought by leave granted on 24 August 2001. The appeal is
from an order made by the judge in the Practice Court on 14 June 2001. According to
the authenticated order, "The proceeding is struck out". That was the only order
made. It was obtained, according to the authenticated order, on the "Oral
application by applicant in person", the plaintiff appearing in person and there being
no appearance by or on behalf of the defendant. It is the plaintiff who now appeals.
The plaintiff is today unrepresented and he appears in person to prosecute the appeal. The defendant, now the respondent, is represented by counsel. Very helpfully through respondent’s counsel an offer was made, although not availed of, to provide the appellant with the services of an interpreter who, having been brought to court by the respondent, was present and sworn.
This proceeding which is No.5934 of 2001 was commenced by the filing of a writ on 24 May 2001. According to the general endorsement the appellant sought damages "in sum of approximately $304,000" and "remedies ... for unconscionable dealing, breaches of duties fraudulently, undue influence, psychosomatic, mental distress and etc.", with interest and costs. A detailed statement of claim was also filed on 24 May 2001 alleging some sort of business arrangement between the
appellant and the respondent and deliberate dishonesty on the part of the
respondent involving the transfer of considerable sums of money between the two.
In some respects it is difficult to reconcile the wording of the endorsement on the
writ with the wording on the statement claim, but I pass that by.
Of more significance is the summons which was also filed on 24 May 2001
seeking, in effect, a Mareva injunction and an order that the respondent disclose all
her assets. That summons was made returnable in the Practice Court on 29 May
2001. There is an "affidavit in support of application on summons" sworn on 24 May
2001 by the appellant. On 29 May an order was made by Beach, J. in the Practice
Court dismissing the summons. It is recorded in the authenticated order that the
plaintiff appeared in person and that there was no appearance by or on behalf of the
defendant. That is consistent with the appellant's subsequent description of this as
an ex parte application: see the affidavit of 25 June to which I shall refer in a
moment.
On 31 May another summons was filed, this time seeking only an order that
the respondent disclose all her assets, but thus far in like terms to the first summons. That second summons was made returnable on 14 June in the Practice Court and the affidavit in support, again an affidavit sworn by the appellant, was sworn on 12 June 2001.
In the meantime, a third summons had been filed on 4 June, this time for leave to amend the writ. The appellant swore an affidavit in support on 31 May 2001 and this summons, which was returnable on 6 June before a Master, was on that day dismissed by order of Master Evans. According to the appellant, it was dismissed because allegations were being made against a person who was not yet a defendant.
This brief history of the proceeding is sufficient to indicate that there was a
summons extant returnable on 14 June 2001 which, it may be supposed, the
appellant was seeking to have heard and determined in the Practice Court on that
day. If that is the correct construction to place upon the documents - and I think it is
- it is surprising that the authenticated order of 14 June describes the application as
"oral application by applicant in person". There is no reference in the order as
authenticated to the summons, and yet there is nothing in the material to lend colour
to the suggestion that on 14 June some other, and oral, application was made.
Perhaps the reference in the authenticated order to an "oral application" was simply
a slip. Ms Hannon, as I followed her, did not really suggest otherwise. At all events,
the slip is unlikely to have played any part in what the judge said on 14 June.
Just as no reference is made in the authenticated order to the summons,
neither is any reference made to the affidavit in support, an affidavit sworn by the
appellant on 12 June 2001. Moreover, although the appellant claims that the
respondent was present in person on 14 June, the order as authenticated declares
that there was no appearance by or on behalf of the defendant. Under "Other
matters", it is also said quite shortly:
"The applications this applicant continues to make to the Court are
misconceived and without merit.".
One may assume that this is the substance of what the judge said as he made his order on 14 June, and it seems appropriate then to conclude that his Honour dealt with the application on that day as a mere repetition, in part, of the application already dismissed on 29 May.
| 9 | There is, indeed, some support for this conclusion in the material which has been filed. Reference was made in argument to the affidavit of 25 June 2001 which the appellant swore in support of his application for leave to appeal (the leave which was granted on 24 August last). First, in paragraph 2, he describes the filing on 24 May 2001 of the writ, the statement of claim, the summons and the affidavit in support, and then continues: |
"3. On the basis of that the defendant engaged fraudulent conduct
to deceive a lot of money from me and some legal advice I had, I
sought Ex parte application for seeking an injunction order on
the defendant before serving the Court files on her.4. Referring to paragraph 3, the summons filed on 24th May 2001 was returnable to the Court on 29th May 2001. Judge of Beach let me to serve the Court files on the defendant first and dismissed the summons, the duration of the hearing was about five minutes for my case.
5. On 31st May 2001 I issued second summons and was returnable to the Court on 14th June 2001. The reason was that to serve the Court files on the defendant I should have a summons.".
This scarcely serves to explain why a second summons was needed after the first had been dismissed. More particularly, the applicant describes what happened in court on 14 June thus:-
"10. At hearing, I said that so far I have been served nothing for
notice of appearance and defence from the defendant as the rule
of the Court the defendant should complete the form before the
hearing, I should know who represented the defendant. The
judge replied that Mr Gao you wasted the time, the resources
of the Court, your application was struck out and you do not
come back to the Court again. Then he left the courtroom. The
duration of the hearing for my case was about two minutes.
The defendant and the man seated in the over-there never
moved and said nothing, the proceeding was struck out (I did
not hear the proceeding was struck out)."
This supports the conclusion that on 14 June his Honour did treat the application then before him as, in part, mere repetition of the earlier which had been dismissed on 29 May.
| 10 | In the circumstances, in so far as those circumstances have been disclosed on this appeal, it seems to me that we should proceed upon the footing that on 14 June 2001 the judge in the Practice Court was indeed dealing with the summons of 31 May 2001, that he regarded it as a mere repetition, in part, of the summons already dismissed on 29 May 2001 and that he therefore summarily dismissed the further application. |
In the course of argument counsel for the respondent appeared to accept that
description of events, and it was not gainsaid by the appellant. True it is that the
earlier summons of 24 May led to an application which was made, or was treated as
made, ex parte (or so it seems), while the second was perhaps intended to be made
on notice. But there was no appeal against the order of dismissal made on 29 May,
and as Ms Hannon pointed out in argument, the time for appearance had not yet
expired and no appearance had yet been filed. Thus, whatever the appellant's intent,
the application by summons on 14 June was being made ex parte, as had been the
earlier. It would not be surprising then if on 14 June the judge had seen the later
summons as being an abuse of process, especially since the appellant, although by
then relying upon the further affidavit of 12 June, put forward in substance nothing
new.
Furthermore, there is an important difference between the summons which was dealt with on 29 May and the summons which was dealt with on 14 June. In both the appellant sought an order for the disclosure of assets. In the first, however, there was also an application for a Mareva injunction. The application for disclosure of assets could be seen as in support of the application for injunction. In the second summons there was no application for the Mareva injunction, and so the application for the order for disclosure was simply free-standing and, as such, it plainly could not be supported. While such an order might in some circumstances be justified when sought in aid of an application for a Mareva injunction, I cannot see that in the circumstances of this case the order for disclosure could properly have been made, free-standing as the application was. For that reason alone I think that the judge was bound to have dismissed the application on 14 June.
The difficulty remains, however, that according to the authenticated order, the proceeding as a whole was “struck out” on 14 June. The proceeding, as I have said, was instituted for damages (among other things) and as the claim for damages has never been brought before the Court for adjudication, an order disposing of the proceeding as a whole could not be justified by what I have said so far. Nor did the judge, it seems, offer any reason for disposing of the whole proceeding, as distinct from the application only. (I draw no distinction between dismissing the application or the proceeding and striking it out. Indeed I am unclear what striking it out means, as the matter was not in any list.) It may be that in the authenticated order, which after all does appear to contain at least one error (in its reference to an "oral application"), there is another error in that the judge did in truth dismiss the application and not the proceeding. Be that as it may, while an order dismissing the application could not in my opinion have been successfully challenged on this appeal - indeed, such an order was required - it is otherwise in relation to an order dismissing the proceeding. I do not think that counsel for the respondent has justified that order and in my opinion it must be set aside.
Before concluding, I mention that there is an outstanding summons filed on 27 November 2001 by the appellant for leave "to adduce new evidences" on the appeal. This summons came on for hearing before Mr. Justice Batt and me last Friday. We could not see at the time how such new evidence was relevant to this appeal and so we adjourned the application to this Court on this day to see if in the course of the hearing of the appeal the relevance of the evidence which the appellant was seeking leave to adduce became apparent. Suffice it to say that in the course of this hearing nothing has changed, and its relevance is still not clear. Nor has the appellant sought to pursue the application any further. I think that we should therefore simply dismiss that summons.
Otherwise I would allow the appeal for the reasons that I have given, set aside the order made below and substitute instead an order that the application made by summons filed by the plaintiff on 31 May 2001 be dismissed.
I would also direct that the authenticated order be corrected under the slip
rule by substituting for the phrase "oral application by applicant in person" the
expression, "summons filed on behalf of plaintiff 31 May 2001".
| 17 | In the result, the appeal succeeds, but the application by summons of 31 May must be taken to have failed. It will then be up to the appellant as plaintiff to decide how far, if at all, he wishes to pursue the main action which remains in the Trial Division. |
BATT, J.A.:
I agree.
VINCENT, J.A.:
I agree.
PHILLIPS, J.A.:
Accordingly the orders of the Court are as follows:
1. The summons filed on behalf of the appellant on 27 November 2001 is dismissed.
2. The appeal is allowed. The order made below by the Hon. Mr. Justice Beach on 14 June 2001 is set aside and in lieu it is ordered that the application made by the plaintiff by summons filed on 31 May 2001 be dismissed.
3. It is ordered that the authenticated order of 14 June 2001 be corrected under the slip rule by substituting under the heading "how obtained", and for the phrase "oral application by applicant in person", the phrase "summons filed on behalf of plaintiff on 31 May 2001".
(Discussion ensued re costs).
We will make the usual order for costs and the orders already pronounced
will be supplemented as follows:
1. We order that the summons be dismissed with costs, including reserved costs.
2. We order that the appeal be allowed with costs, including any reserved costs.
3. We grant a certificate to the respondent under the Appeal Costs Act.
(Further discussion ensued re costs.)
Mr Gao, you will have to work out the amount of the costs with the taxing
officer of the Court, not with us. We just make the order and you work it out with
the Taxing Master at a later stage. We do not go into the details.
(After Mr. Justice Phillips and Mr. Justice Batt dealt with proceeding No.8485 of
2001, further discussion ensued in the absence of Mr. Justice Vincent.)
PHILLIPS, J.A. (for Mr. Justice Batt and himself):
Now that we have dealt with the application for leave to appeal in proceeding No.8485 of 2001, Mr Gao has drawn attention in the proceeding No.5934 to the need which has now arisen for the defendant to file an appearance and deliver a defence. Mr Gao has mentioned the possibility, too, that he might wish to mend his hand by amending the writ or the statement of claim and I suppose that on the material so far filed there is even the possibility that he might wish to add a party.
After discussion, it has been agreed between the parties that we should add to the orders made in proceeding No.5934 the following:
1. Extend the time for filing an appearance until 4 p.m. on Friday 15 February
included as part of the orders we are substituting for those made on 14 June last. We
shall give some thought to this before the orders are settled. Subject to that, the
orders I have just pronounced will be included in the orders made by the Court at
the conclusion of the appeal.
2. Extend the time for serving a defence until 4 p.m. on Monday 18 March 2002.
As at present advised, it seems to me that both these orders should be
| 26 | For the sake of the record, I note that Mr. Justice Vincent is not present but as the further orders are being added by consent that should not occasion difficulty. I shall alert his Honour to what has been done in his absence and seek his concurrence. |
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