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Li v Hanson Property Developments Pty Ltd

Li v Hanson Property Developments Pty Ltd

Case [2016] NSWSC 1870 20 December 2016

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Li v Hanson Property Developments Pty Ltd [2016] NSWSC 1870
Hearing dates: 18 November and 12 December 2016
Decision date: 20 December 2016
Jurisdiction: Equity
Before: Stevenson J
Decision:
Orders of 2 July 2014 varied; declarations and orders of 8 August 2016 set aside

Catchwords: PRACTICE AND PROCEDURE – application by defendants to set aside orders made in their absence – where defendants in breach of earlier orders – whether defendants entitled to be heard on application to set aside orders or on application to vary earlier orders – where plaintiff accepts defendants have arguable defence – whether explanation for not attending hearing adequate
Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bank of New South Wales v O'Connor (1889) 14 App Cas 273
Chamberlain Group Pty Ltd v Kids for Life Academy Pty Ltd [2015] NSWCA 241
Ellis v Marshall [2006] NSWSC 448
Ghana Commercial Bank v Chandiram [1960] AC 732
Hadkinson v Hadkinson [1952] P 285; 2 All ER 567
Hwang v Lawrie [2013] QCA 204
Kayserian Nominees (No 1) Pty Ltd v JR Garner Pty Limited [2008] NSW 1011
Northey v Bega Valley Shire Council [2012] NSWCA 28
Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365
Re Wallis & Simmonds (Builders) Limited [1974] 1 All ER 561
Shaw v Foster (1872) 5 Eng & Ir App 321
Stokes (by a tutor) v McCourt [2013] NSWSC 1014
Westpac Banking Corporation v Cronin (1990) 6 BPR [13,105]
Young v Jackman (1986) 7 NSWLR 97
Category: Procedural and other rulings
Parties: Chi Man Li (First Plaintiff/Respondent)
BMO Brindabella Developments Pty Ltd (Second Plaintiff)
Hanson Property Developments Pty Limited (First Defendant/Applicant)
Shuk Han Lau (Second Defendant/Applicant)
Henry Han Ho Lau (Third Defendant/Applicant)
Ju Biao Zhang (Third Cross-Defendant)
Representation:
Counsel:
B F Katekar with G P Gee (First Plaintiff/Respondent)
D R Pritchard SC (on 18 November 2016) with A J Macauley (Defendants/Applicants)
Solicitors:
Kamy Saeedi Law (Plaintiffs/Respondent)
David Legal (Defendants/Applicants)

File Number(s): SC 2014/189714

Judgment

The plaintiffs, Chi Man Li (“Mr Chi”) and BMO Brindabella Developments Pty Ltd commenced these proceedings on 15 August 2014.
BMO Brindabella was wound up by Court order on 24 June 2016. Accordingly, for convenience, I shall simply refer to Mr Chi (rather than the plaintiffs) unless the context otherwise requires.
Mr Chi’s claims arise out of a joint venture that he claims he entered into with the third defendant, Henry Han Ho Lau and the third cross-defendant Ju Biao Zhang concerning the development of a property in Queanbeyan.
Mr Chi claims that:

in November 2007, he entered into a joint venture with Mr Lau and Mr Zhang pursuant to which they agreed to redevelop the Queanbeyan property into a nine storey residential/commercial building, with the first defendant, Hanson Property Developments Pty Ltd, as the vehicle through which the project would be undertaken;

when the joint venture was formed, Mr Chi and Mr Zhang…

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 Li v Hanson Property Developments Pty Ltd

Details

AGLC: Li v Hanson Property Developments Pty Ltd [2016] NSWSC 1870
Case: [2016] NSWSC 1870
Decision Date: 20 December 2016

CaseChat Overview and Summary

The matter before the court involved a dispute between the plaintiff, Li, and the defendants, Hanson Property Developments Pty Ltd. The plaintiff sought to enforce certain orders made in his favour in proceedings concerning a property development. The defendants did not attend the hearing, and subsequently applied to set aside the orders made in their absence. The court had to determine whether the defendants were entitled to be heard on the application to set aside, and whether they were entitled to be heard on an application to vary earlier orders. Furthermore, the court needed to assess whether the plaintiff's acceptance that the defendants had an arguable defence meant that the defendants' explanation for not attending the hearing was adequate.

The court considered that the defendants' failure to attend the hearing was due to a misunderstanding and not a deliberate refusal to comply with the earlier orders. It was also noted that the plaintiff accepted that the defendants had an arguable defence. The court held that the defendants were entitled to be heard on the application to set aside, as well as on an application to vary earlier orders. The court found that the defendants' explanation for not attending the hearing was adequate, given the circumstances.

Accordingly, the court set aside the orders made in the defendants' absence and allowed the application to vary the earlier orders. The court emphasised the importance of parties attending hearings and complying with court orders, but also recognised that misunderstandings can occur and that the defendants had an arguable defence in the matter. The court ordered that the defendants were to be given a reasonable opportunity to be heard on the application to vary the earlier orders, and that the plaintiff was to provide any necessary information to assist the defendants in preparing their case.

In conclusion, the court determined that the defendants were entitled to be heard on both the application to set aside and the application to vary earlier orders, and that their explanation for not attending the hearing was adequate. The court set aside the orders made in the defendants' absence and allowed the application to vary the earlier orders. The defendants were granted a reasonable opportunity to be heard on the application to vary the earlier orders, and the plaintiff was required to provide any necessary information to assist the defendants in preparing their case.

Orders