He v Yeung

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	He v Yeung [2015] NSWCA 392
Hearing dates:	27 November 2015
Date of orders:	10 December 2015
Decision date:	10 December 2015
Before:	Beazley P at [1]; Meagher JA at [2]; Bergin CJ in Eq [3]
Decision:	Leave to appeal refused. The applicant is to pay the respondent’s costs.
Catchwords:	APPEAL – where ultimate challenge, if successful, would amount to an adjustment of well less than $100,000 – matter treated as application for leave to appeal – no matter of principle or public importance – no prospect of success of proposed appeal
Cases Cited:	Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Category:	Principal judgment
Parties:	Qin He (Applicant) Simon Yeung (Respondent)
Representation:	Counsel: Qin He (Applicant in person) PM Barham (Respondent)   Solicitors: Bowles Lawyers Pty Ltd (Respondent)
File Number(s):	2014/296848
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Date of Decision: 18 September 2014 Before: Young AJ File Number(s): 2013/355288

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Bergin CJ in Eq. I agree with her Honour's reasons and the proposed orders.

2. MEAGHER JA: I agree with Bergin CJ in Eq.

3. BERGIN CJ IN EQ: By Notice of Appeal filed on 17 December 2014 the applicant, Qin He, sought to appeal from the judgment of Young AJ (the primary judge) given on 18 September 2014 (the Judgment). Orders were entered on 23 September 2014 that provide that the respondent, Simon Yeung, was entitled to a verdict for $248,279.45; that the applicant was to pay the respondent’s costs; and that such costs were to be paid on an indemnity basis on and after 2 January 2014.

4. The proceedings arose out of a dispute in respect of loan agreements between the parties pursuant to which the respondent loaned monies to the applicant and her husband, David Zhang, for the purchase by the applicant of a residential property in Ashfield, NSW (the Property). The respondent claimed that the loan amounts were advanced in various forms including by bank cheque in the amount of $30,504.33. The primary judge held that the applicant was indebted to the respondent in the amount of $248,279.45.

5. The applicant’s original Grounds of Appeal filed on 17 December 2014 contained two contentions. The first was that the primary judge found facts that were against the evidence or the weight of the evidence: [2]-[7]. The second was that the primary judge had erred in misconstruing the applicant’s evidence and that of her husband in relation to the loans the subject of the proceedings: [8]-[11].

6. In a document entitled “Amended Appeal” filed on 20 July 2015, the applicant claims that the primary judge erred: (1) in finding that the Demands were relevant to the Mortgage and should not have been applied to the 2005 contract; and (2) in finding that the bank cheque for $30,504.33 was given to the applicant and…