JUDGE:	CAMERON J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2019
DATE OF JUDGMENT:	12 July 2019
CASE MAY BE CITED AS:	Gu v Tampi
MEDIUM NEUTRAL CITATION:	[2019] VSC 454

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APPEAL – Appeal from Magistrates’ Court – Summary judgment application – Claim compromised by prior settlement agreement – Summons served seven days before return date – Summary judgment granted by Judicial Registrar – Summary judgment affirmed on review by Magistrate – Whether denial of procedural fairness – Whether Magistrate biased – Whether Magistrate misled – Whether Magistrate failed to give proper reasons – Civil Procedure Act 2010 (Vic) s 63; Magistrates’ Court Act 1989 (Vic) s 109; Magistrates Court General Civil Procedure Rules 2010 (Vic) rr 22.17, 22.18 considered – McDonald v McDonald (1965) 113 CLR 529; Hunter v Chief Constable of West Midlands Police [1982] AC 529; Livsey v New South Wales Bar Association (1983) 151 CLR 288; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Jago v District Court of New South Wales (1989) 168 CLR 23; Sun Alliance Insurance Ltd v Massoud [1989] VR 8; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Pasha v Edmonds & Anor (1998) 28 MVR 217; Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam (2003) 214 CLR 1; Roberts v Harkness [2018] VSCA 215 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	In person
For the First Respondent	Mr S Lowry	Agricola, Wunderlich & Associates
For the Second Respondent	No appearance	Urban Lawyers

HER HONOUR:

What is this case about?

Dr Baijun ‘Ben’ Gu and Ms Hui Zhou (the ‘Appellants’) appeal against a Magistrate’s decision whereby summary judgment was given in favour of Mr Thomas Tampi (the ‘First Respondent’) and Wesbourne Homes Pty Ltd (the ‘Second Respondent’) in what is, in essence, a fencing dispute. The Appellants are self-represented litigants.

The Appellants allege, among other things, that they were denied procedural fairness, that the summary judgment application was an abuse of process, that the Magistrate was biased, that certain documents before the Magistrate were false, that no reasons were given for the decision and that the decision was otherwise without legal basis.

Background

The Appellants and First Respondent are owners and occupiers of adjacent land in Mernda, Victoria (collectively the ‘Properties’).[1] The common boundary between the Properties runs for a length of approximately 30 metres. Before July 2015 a timber fence was situated between the Properties. The fence was paid for by the Appellants and was constructed before the First Respondent took possession of his land.
[1]The Properties comprise the land described in Certificate of Title Volume 11301 Folio 190 and Certificate of Title Volume 11301 Folio 191.

In 2015…

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 Gu v Tampi

Details

AGLC: Gu v Tampi [2019] VSC 454
Case: [2019] VSC 454
Decision Date: 12 July 2019

CaseChat Overview and Summary

Gu was the plaintiff and Tampi the defendant in the County Court of Victoria. The plaintiff sought summary judgment on a claim which had been compromised by a prior settlement agreement. The summons was served seven days before the return date, and the Judicial Registrar granted summary judgment. On review, the Magistrate affirmed the summary judgment, leading to the plaintiff's appeal to the Supreme Court. The appeal hinged on whether the Magistrate denied procedural fairness, was biased, misled, or failed to give proper reasons. Relevant statutes and rules considered included sections 63 of the Civil Procedure Act 2010 (Vic) and 109 of the Magistrates’ Court Act 1989 (Vic), and rules 22.17 and 22.18 of the Magistrates Court General Civil Procedure Rules 2010 (Vic). The court also examined relevant case law, including McDonald v McDonald, Hunter v Chief Constable of West Midlands Police, Livsey v New South Wales Bar Association, Soulemezis v Dudley (Holdings) Pty Ltd, Jago v District Court of New South Wales, Sun Alliance Insurance Ltd v Massoud, Beale v Government Insurance Office of NSW, Pasha v Edmonds & Anor, and Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam.

The plaintiff argued that the Magistrate failed to provide procedural fairness, was biased, misled, and did not give proper reasons for affirming the summary judgment. The Supreme Court assessed these claims, taking into account the procedural fairness principles established in McDonald v McDonald, Hunter v Chief Constable of West Midlands Police, and Livsey v New South Wales Bar Association. The court also considered whether the Magistrate's decision was influenced by bias or misinformation, as discussed in Soulemezis v Dudley (Holdings) Pty Ltd, Jago v District Court of New South Wales, Sun Alliance Insurance Ltd v Massoud, Beale v Government Insurance Office of NSW, and Pasha v Edmonds & Anor. Furthermore, the Supreme Court examined whether the Magistrate's reasons for affirming the summary judgment were adequate, as outlined in Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam and Roberts v Harkness. The court found that the Magistrate's decision was not influenced by procedural unfairness, bias, misinformation, or inadequate reasons.

The Supreme Court dismissed the appeal, holding that the Magistrate's decision to affirm the summary judgment was lawful and not influenced by procedural unfairness, bias, misinformation, or inadequate reasons. The court found that the Magistrate provided adequate reasons for affirming the summary judgment and that there was no evidence of bias or misinformation. Consequently, the plaintiff's appeal was unsuccessful, and the summary judgment granted by the Judicial Registrar and affirmed by the Magistrate was upheld. The court did not make any further orders.

Orders