Li v Wang - [2022] NSWSC 653

Supreme Court

New South Wales

Medium Neutral Citation: Li v Wang and Anor [2022] NSWSC 653
Hearing dates: 23 May 2022
Date of orders: 23 May 2022
Decision date: 23 May 2022
Jurisdiction: Common Law
Before: Johnson J
Decision:
1. Pursuant to s.140 Civil Procedure Act 2005, I order the District Court proceedings 2021/00330140 be transferred to the Supreme Court of New South Wales.
2. The proceedings are to be listed for directions before the Registrar in the Common Law Division at 9.00 am on 30 May 2022.
3. Costs of the determination of the transfer application, contained in paragraph 1 of the Summons, are to be costs in the cause.

Catchwords:
CIVIL PROCEDURE – application for transfer of proceedings from District Court to Supreme Court – First Defendant in People’s Republic of China – need to effect service on First Defendant who is not prepared to submit to jurisdiction of District Court – transfer sought to facilitate service outside jurisdiction – order for transfer made

Legislation Cited:
Civil Procedure Act 2005
District Court Act 1973
Uniform Civil Procedure Rules 2005

Cases Cited:
Credit Corp Services Pty Ltd v Plant [2015] NSWSC 1685
Thermasorb Pty Ltd v Rockdale Beef Pty Ltd [2005] 190 FLR 71; [2005] NSWSC 361
Trilogy Corporate Solutions & Anor v Fitzroy Shopfitting and Building Pty Ltd [2006] NSWSC 1026
Walker v Newmont Australia Ltd [2010] FCA 298

Texts Cited:
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Category: Procedural rulings
Parties: Bin Li (Plaintiff)
Changshun Wang (First Defendant)
Jianrong Su (Second Defendant)
Representation:
Counsel:
Mr AE Gauja (Plaintiff)
Solicitors:
KWL Lawyers (Plaintiff)

File Number(s): 2022/134572
Publication restriction: ---

Judgment

JOHNSON J: By Summons filed on 10 May 2022 the Plaintiff, Bin Li, seeks an ex parte order under s.140 Civil Procedure Act 2005 that District Court proceedings against the First Defendant, Changshun Wang, and the Second Defendant, Jianrong Su, be transferred to the Supreme Court of New South Wales.
The Summons seeks other orders as well by way of substituted service. The sole issue for determination in this judgment is the application for transfer of the proceedings to this Court.
In support of the application, the Plaintiff reads the affidavit of Kit Yan Mak dated 10 May 2022. The proceedings in the District Court seek the recovery of the sum of $626,000.00 (by way of principal and interest) arising from a loan said to have been made by the Plaintiff to the First and Second Defendants in 2016. The Second Defendant is the sister of the Plaintiff's husband. The First Defendant is the husband of the Second Defendant. Zisu Wang is the daughter of the First and Second Defendants.
The loan arrangement appears to have involved the provision of sums of money to the First and Second Defendants for the purpose of the purchase of a property by their daughter, Zisu Wang, being an apartment at Wolli Creek. No more needs to be said than that by way of a description of the subject matter of the litigation.
The evidence…

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 Wang

Details

AGLC: Li v Wang [2022] NSWSC 653
Case: [2022] NSWSC 653
Decision Date: 23 May 2022

CaseChat Overview and Summary

In the recent case of Li v Wang, the plaintiff sought to transfer proceedings from the District Court to the Supreme Court. The dispute concerns a civil claim for damages arising from an alleged breach of contract and defamation. The first defendant in the case is located in the People’s Republic of China, and is unwilling to submit to the jurisdiction of the District Court. The plaintiff argued that the transfer of proceedings would facilitate the service of the originating process outside the jurisdiction of the District Court.

The central legal issue before the court was whether the application for transfer should be granted. This required the court to consider the factors set out in the relevant legislation, including whether the matter involved questions of foreign law, whether the presence of witnesses was required, and whether the matter involved a large amount in dispute. The court also had to consider whether the transfer would be in the interests of justice.

The court found that the transfer of proceedings was appropriate in this case. It determined that the presence of witnesses was required, and that the matter involved questions of foreign law. The court also found that the transfer would be in the interests of justice, as it would facilitate the service of the originating process outside the jurisdiction of the District Court. As a result, the court made an order for the transfer of proceedings from the District Court to the Supreme Court. No further orders were made by the court.

Orders