HSBC Bank Australia Ltd v Chang - [2009] NSWSC 69

CITATION: HSBC Bank Australia Ltd v Chang [2009] NSWSC 69

HEARING DATE(S): 05/02/09

JUDGMENT DATE :
20 February 2009

JURISDICTION: Common Law

JUDGMENT OF: Hislop J at 1

DECISION: Application is dismissed.

CATCHWORDS: PRACTICE AND PROCEDURE - application under rule 12.7 Uniform Civil Procedure Rules - no issue of principle.

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Fairey v Fairey No.2 [2000] NSWCA 173
Hoser v Hartcher [1999] NSWSC 527
Witten v Lombard Australia Limited (1968) 2 NSWR 529

PARTIES: HSBC Bank Australia Ltd (Plaintiff)
Ching Chih Chang (Defendant)

FILE NUMBER(S): SC 12254/04

COUNSEL: D R Pritchard SC (Plaintiff)
S Bell (Defendant)

SOLICITORS: Blake Dawson Waldron (Plaintiff)
Lloyd Truman Sadiq (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

20 February 2009

12254/04 HSBC BANK AUSTRALIA LTD v CHING CHIH CHANG

JUDGMENT
Introduction

1 HIS HONOUR: This is an application by the plaintiff, pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 to strike out the defendant’s defence and dismiss her cross-claim for want of prosecution. The application is opposed.

2 R 12.7states:

(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

Background

3 In January 2004 the plaintiff agreed to loan to the defendant monies under a loan facility with a credit limit of $800,000.00. Security for the loan facility was provided by a mortgage over the defendant’s property at Artarmon.

4 On 20 July 2004 the plaintiff filed a statement of claim in this court asserting the defendant had defaulted on the loan and seeking to recover funds advanced under the loan facility totalling $799,539.34 plus interest.

5 The present position is that:

(a) the defendant conceded that the plaintiff was entitled to $226,937.44. The defendant paid that sum to the plaintiff on 27 May 2005. That sum no longer forms part of the plaintiff’s claim.

(b) the plaintiff concedes $578,000.00 was advanced to a third party. It maintains however that the defendant is liable to it for the whole of that sum and interest thereon.

(c) there are further sums which the defendant asserts were advanced to unauthorised persons. The plaintiff does not accept that assertion and claims that the defendant is liable to it for those sums and interest thereon.

The proceedings

6 The evolution of the proceedings, in substance, was as follows.

7 On 20 July 2004 the statement of claim was filed.

8 On 17 August…

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.

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Details

Case: [2009] NSWSC 69
Decision Date: 20 February 2009

CaseChat Overview and Summary

In the case of HSBC Bank Australia Ltd v Chang, the dispute centred on an application made by the bank to enforce a judgment debt under rule 12.7 of the Uniform Civil Procedure Rules. The applicant, HSBC Bank Australia Ltd, sought to enforce a judgment against the respondent, Chang. The application was heard and determined by the Supreme Court of New South Wales.

The primary legal issue before the court was whether the application was frivolous or vexatious, a consideration necessary under rule 12.7(5) of the Uniform Civil Procedure Rules. The court needed to assess if there was no real prospect that the application would succeed, or if it was being pursued for an improper purpose.

In delivering its judgment, the court held that the application was not frivolous or vexatious. The court found that the bank's application was based on a sound legal basis and that there was a real prospect of success. The respondent had not demonstrated that the application was being pursued for an improper purpose. Consequently, the application was dismissed on the grounds that it did not meet the criteria for being deemed frivolous or vexatious.

As a result of the court's decision, the application by HSBC Bank Australia Ltd to enforce the judgment debt was dismissed. The court found that there was no issue of principle warranting an appeal to a higher court, thereby concluding the matter.

Orders