Imbk Pty Ltd v Zheng Tan

[2016] NSWSC 1175

Supreme Court

New South Wales

Medium Neutral Citation:	IMBK Pty Ltd v Zheng Tan [2016] NSWSC 1175
Hearing dates:	28 July 2016
Decision date:	24 August 2016
Jurisdiction:	Common Law
Before:	White J
Decision:	1. Order that the defendant’s notice of motion filed on 14 July 2016 be dismissed. 2. Make no order as to costs.
Catchwords:	PRACTICE AND PROCEDURE — Application for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance under UCPR 7.36 — Application unsupported by sufficient evidence — Defendant directed to provide further affidavit in support of application — In the interests of the administration of justice that defendant have legal proceedings having regard to the nature and complexity of proceedings — Further evidence of defendant’s means and capacity to obtain legal assistance outside of the statutory scheme inadequate — Application refused.
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	IMBK Pty Ltd (Plaintiff) Zheng Tan (Defendant)
Representation:	Counsel: C D Wood (Plaintiff) In person (Defendant)   Solicitors: SHL and Associates Lawyers (Plaintiff) N/a (Defendant)
File Number(s):	2016/88793

Judgment

1. HIS HONOUR: This is an application for an order pursuant to r 7.36 of the Uniform Civil Procedure Rules referring the defendant to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

2. The plaintiff claims, amongst other relief, judgment in the sum of $250,000 and an order that the defendant holds on constructive trust for the plaintiff the sum of $237,505.10, or such portion of those funds that he retains custody of or control over, including any asset into which the funds can be traced.

3. Initially the defendant had legal representation. He has filed a defence and cross-claim. By his cross-claim he seeks judgment against the plaintiff in the sum of $350,000.

4. The plaintiff alleges that on 3 March 2016 it agreed with the defendant that the plaintiff would transfer into the defendant’s bank account with the National Australia Bank the sum of $612,494.90 in exchange for RMB¥3 million. The plaintiff pleads that it was a term of the agreement that it was to deposit $12,494.90 into the defendant’s bank account and would deposit the remaining $600,000 once RMB¥3 million was transferred into bank accounts of the plaintiff’s in China. The plaintiff alleges that the defendant did not deposit RMB¥3 million into its bank accounts in China and as a result it terminated the agreement. It alleges that a few days later in March 2016, it offered to pay the defendant $250,000 consisting of the $12,494.90 that the defendant had already received and an additional $237,505.10 on the basis that the plaintiff would deposit RMB¥1,247,500 into three accounts nominated by it in China. It alleges that the defendant received both the sums of $12,494.90 and $237,505.10, but did not deposit the Renminbi that he had agreed to deposit. It says that the defendant attended its Eastwood branch and removed $237,505.10 in cash without its consent.

5. In his defence and cross-claim the defendant alleges that there was an agreement between the parties whereby he agreed to pay in China RMB¥3 million to the plaintiff, and the plaintiff agreed to transfer into a bank account in Australia nominated by him the Australian Dollar equivalent of RMB¥3 million at the rate of 4.898 Renminbi for one Australian Dollar. The application of that conversion rate meant that the plaintiff was to deposit $616,494.90 into his bank account. He says that his father-in-law, on his behalf, paid the plaintiff’s agent, a Mr Jian Li, the sum of RMB¥3 million in cash in China.

6. This would appear to be the principal factual issue in the proceeding.

7. The defendant made his application for pro bono assistance by a notice of motion that was heard by me in the Duty List. He made his submission through an interpreter. He no longer has legal representation. I said I was satisfied that it would be desirable for him to have legal assistance, that there were factual disputes where he would be at a considerable disadvantage if he did not have a lawyer to provide him with assistance, but before I could make an order referring him to the pro bono panel I needed to be satisfied that he did not have any capacity otherwise to obtain legal assistance. His affidavit filed in support of his notice of motion did not attempt to describe all of his assets or liabilities and did not address the question as to whether he might be able to funded by third parties, such as his father-in-law who, the defendant says in his cross-claim, paid RMB¥3 million in order for payment to be made to the defendant in Australia.

8. The Pro Bono Scheme is designed to facilitate the provision of legal assistance to litigants who are otherwise unable to obtain assistance where it is in the interests of administration of justice to do so (r 7.33(2)). I was not satisfied that the defendant’s affidavit was sufficient to justify the making of an order. I directed him to provide a further affidavit to my Associate and said that I would then deal with the application in chambers.

9. My Associate received what was called a “Personal Statement” of the defendant and related bank statements. Although the personal statement is not verified, it is signed. The absence of verification corroborates the impression I otherwise formed that the defendant will be at considerable disadvantage if he does not have the benefit of legal assistance.

10. It appears from the defendant’s personal statement that his father-in-law has in the past provided him and his wife with considerable financial assistance. He says that his father-in-law is no longer in a position to do so and that he is in financial difficulties because the balance of the moneys he claims are payable to him as the result of the RMB¥3 million deposit he says was made in March this year has not been paid to him.

11. That issue is yet to be determined.

12. The plaintiff says he has no current substantial money in any bank account and does not have a car. He has not given evidence as to whether he is in receipt of income, and if so, how much. He deposes that “I own no property under my name”, and “I own no motor vehicle under my name” and that “the total amount of bank deposit under the name of Zheng Tan is $...”. For the defendant to say that he owns no such property in his own name might suggest that he might own such property that is in someone else’s name. Or this language may be a problem in translation.

13. The defendant deposes that his father-in-law purchased an apartment for his wife in which he and his wife and children currently live and that it has a mortgage. He does not give evidence of the value of his wife’s apartment or the extent of the mortgage on it or whether his wife would be prepared to allow it to be used as security for legal fees.

14. The defendant deposes that since 2012 “my families and my father-in-law has been supporting us and wiring money to us from China”. He deposed that so far 10 million Yuan (approximately $2 million) has been wired to him and his wife. He deposed that on 26 March 2016 over $500,000 in cash as well as jewellery, diamonds and ornaments was stolen from his home and that this theft was under police investigation. He said that the theft had been reported to the police and added “please find the details in attachment 2”, but no such details were provided. He gives no evidence to explain why he was holding $500,000 in cash at his house. He does not explain how the 10 million Chinese Yuan has been applied.

15. The defendant’s former solicitor gave notice of intention of ceasing to act on 27 June 2016. The defendant has not given evidence of any attempt to obtain legal representation otherwise than through the Law Society or Legal Aid.

16. Rule 7.36 relevantly provides:

“7.36 Referral to a barrister or solicitor

(cf SCR Part 66A, rule 4; DCR Part 28C, rule 4)

(1)    If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

(2)    For the purposes of subrule (1), the court may take into account:

(a)    the means of the litigant, and

(b)    the capacity of the litigant to obtain legal assistance outside the scheme, and

(c)    the nature and complexity of the proceedings, and

(d)    any other matter that the court considers appropriate.”

17. I am satisfied having regard to the nature and complexity of the proceedings that it is in the interests of the administration of justice that the defendant have legal assistance. But the evidence of the defendant’s means and his capacity to obtain legal assistance outside the scheme is inadequate. He has not given adequate evidence of his assets and liabilities, including whether any assets are held for him in someone else’s names. He has not given evidence of his wife’s assets or whether she is prepared to make them available for his use. He has not given evidence of his income. He has not explained how the moneys received from his father-in-law have been applied. He has not shown that he cannot obtain legal representation otherwise than through Legal Aid or the Law Society’s “service scheme”.

18. For these reasons, I am not satisfied that it is in the interests of the administration of justice that he be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

19. Accordingly, I order that the defendant’s notice of motion filed on 14 July 2016 be dismissed. I make no order as to costs.

Decision last updated: 19 April 2018