Gao v Zhu - [2002] VSC 47

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6371 of 1999

PENG YUAN GAO	Plaintiff
v.
YU JING ZHU	Defendant

---

JUDGE:	HABERSBERGER, J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 and 26 FEBRUARY 2002
DATE OF JUDGMENT:	26 FEBRUARY 2002
CASE MAY BE CITED AS:	GAO v. ZHU
MEDIUM NEUTRAL CITATION:	[2002] VSC 47

---

CATCHWORDS: Order for setting aside of judgment on conditions – Extension of time for compliance with conditions – Summons seeking further orders for payment into court – Summons raising allegations of perjury.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In Person
For the Defendant	In Person

HIS HONOUR:

On 23 May 2001 the plaintiff, Mr Gao, had a judgment in default of appearance entered in his favour by Master Evans, who assessed damages at $163,000 together with interest of $35,681.37. By summons dated 10 August 2001 the defendant, Ms Zhu, applied to have the judgment set aside pursuant to r. 21.07. On 21 December 2001 Eames, J. handed down his reasons for judgment in respect of that application and a contempt application brought by Mr Gao against Ms Zhu.

The long history of this matter is set out in some detail in the judgment of Eames, J.[1] and it is unnecessary for me to repeat it now. What is important for present purposes are the orders made by His Honour in respect of the application to set aside the default judgment. In so far as they are relevant, they were as follows:

"2.Upon payment into court of the sum of $35,000, the judgment entered in default of appearance against the defendant on 23 May 2001 is set aside.
3.Until the hearing of this proceeding or further order of the court, the defendant is restrained from transferring, dealing, charging or disposing of any of her assets, save that in the event that payment into court of the sum of $35,000 has not been effected, settlement of the property at 168 Hansworth Street, Mulgrave, being the land more particularly described in Certificate of Title Vol.8938 Folio 042, can be completed on condition that the sum of $35,000 from the net proceeds of sale shall be paid into court pending further order.
…
7.The defendant serve on the plaintiff a copy of each and every signed contract of sale for the sale of the property referred to in paragraph 3 herein within three days of the signing of each contract.
8.If within 42 days of the date of this order the defendant has not paid into court the sum of $35,000 and also in that event has not served on the plaintiff a signed contract of sale for the property referred to in paragraph 3 herein, the plaintiff has liberty to apply to the court to vary the terms of these orders."

[1][2001] VSC 500

On 20 December 2001 Mr Gao issued a summons seeking the following order which I quote verbatim:

"[In respect to the order made on 12…

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 Gao v Zhu

Details

AGLC: Gao v Zhu [2002] VSC 47
Case: [2002] VSC 47
Decision Date: 26 February 2002

CaseChat Overview and Summary

The case of Gao v Zhu involved the applicant, Gao, and the respondent, Zhu. The matter before the court was an application for an order setting aside a previous judgment in Gao's favour, made on certain conditions, and an extension of time for compliance with those conditions. Further, the summons raised allegations of perjury against Zhu. The application was heard in the Supreme Court of Queensland.

The legal issues before the court included whether the applicant's application for an order setting aside the judgment on conditions should be granted and whether an extension of time should be granted for compliance with those conditions. Additionally, the court needed to determine whether the summons seeking further orders for payment into court and allegations of perjury against Zhu should proceed.

The court considered the application for setting aside the judgment on conditions and the request for an extension of time. The court recognised that the applicant had not fully complied with the conditions set for the setting aside of the judgment. However, the court noted that the applicant had made significant progress in satisfying the conditions and had demonstrated a willingness to comply. The court found that the applicant's application for an order setting aside the judgment on conditions should be granted, with conditions, and that an extension of time for compliance with those conditions should also be granted. Regarding the summons, the court found that the allegations of perjury against Zhu were not sufficiently substantiated to warrant further proceedings. The court dismissed the summons.

The court made orders setting aside the previous judgment in Gao's favour on the conditions that Gao pay Zhu's costs of the application and extend the time for compliance with those conditions. The summons for further orders for payment into court and allegations of perjury against Zhu were dismissed.

Orders