Gao v Wang

[2022] NSWDC 121

District Court

New South Wales

Medium Neutral Citation:

Gao v Wang [2022] NSWDC 121

Hearing dates:

21 April 2022

Date of orders:

22 April 2022

Decision date:

22 April 2022

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Order:

(1)   Summons dismissed.

(2)   The plaintiff to pay the defendant’s costs of the summons and of these proceedings on an indemnity basis.

Catchwords:

APPEAL - appeal from decision of Assessor in the Small Claims Division of the Local Court pursuant to s 39(2) Local Court Act 2007(NSW) - whether lack of procedural fairness - appeal dismissed with costs on an indemnity basis

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 98

Local Court Act 2007 (NSW) ss 35 and 39

Cases Cited:

Britt v Parcell [2021] NSWDC 464

Duraisamy v Sydney Trains [2019] NSWCA 269

Isabella Shop Fitout & Design Pty Ltd v Tan Republic Pty Ltd [2014] NSWCA 192

Kioa v West (1985) 159 CLR 550

Category:

Principal judgment

Parties:

Plaintiff: Mr Ming Gao (Self-represented)
Defendant: Mr Chang Wang

Representation:

Solicitors:
Defendant: Law Partners

File Number(s):

2021/00280321

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

2 September 2021

Before:

Assessor E Keir

File Number(s):

2020/00350703

Judgment

1. This is an appeal brought pursuant to s 39(2) of the Local Court Act 2007 (NSW) (“the Act”). The Summons sets out that the applicant (“the plaintiff”), who was also the plaintiff in the Local Court, appeals from a decision of Assessor Keir dated 2 September 2021, on the following grounds:

“Assessor identified a wrong issue, procedural fairness has been denied as relevant material has been ignored. ASIC extract shows defendant Chang Wang was not the director of Blue Ocean [the company which was the other defendant in the local Court, against which no orders were sought by the plaintiff at the time of the hearing], instead, Fan Xie was the director appointed (appointment date: 1 March 2017, cease date: 5 June 2017). The rebate letter was signed by Chang Wang onto 4 April 2017 when $5000 deposit was made, at that time, Chang Wang had no capacity to sign as director of Blue Ocean, which means he is personally liable of [sic] signing the Rebate Letter.”

Jurisdiction

2. The appeal procedure for judgment in the civil jurisdiction of the Local Court sets out that all judgments and orders of the court are final and conclusive, subject to appeals as of right as set out in s 39. Section 39(1) permits the bringing of an appeal to the Supreme Court “but only on a question of law”. Section 39(2) of the Act provides a narrow and specific right of appeal to this court:

“39 Appeals as of right

(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

(2) A party to proceedings before the Court sitting in its…