Li v Zheng - [2022] VSC 520

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2022 03222

RUNYANG LI	Plaintiff
v
HANLING ZHENG	Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2022
DATE OF RULING:	5 September 2022
CASE MAY BE CITED AS:	Li v Zheng
MEDIUM NEUTRAL CITATION:	[2022] VSC 520

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PRACTICE AND PROCEDURE — Application for freezing order — Good arguable case — Risk of dissipation — Risk speculative — Whether defendant’s alleged offences support freezing order being made — Balance of convenience — Zhen v Mo & Ors [2008] VSC 300 — Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 37A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	H McAvaney	Naomi Liu Legal
For the Defendant	A Naidu, solicitor	Logans Barristers & Solicitors

HIS HONOUR:

The plaintiff, Runyang Li, alleges that in October 2020 the defendant, Hanling Zheng, wrongfully attacked him with a knife and stabbed him to the back, hand and chest. Li commenced this proceeding against Zheng by filing a generally endorsed writ claiming damages for injuries and loss sustained as a result of the alleged assault.

Zheng is the sole registered proprietor of the property at Unit 2, 7 Nestor Grove, Blackburn North (‘property’). Zheng entered a contract to sell the property in August this year. Settlement of the sale is to take place on 27 October 2022.

Li has applied for a freezing order over the net proceeds of the sale of the property. The application is opposed by Zheng.

The following affidavit evidence was filed on the application:

(a) Xufeng Liu, Li’s lawyer, affirmed 17 August 2022;

(b) Zheng, affirmed 30 August 2022;

(c) Ashwin Sivarajah, Zheng’s lawyer, sworn 30 August 2022.

Criminal charges

Zheng has been indicted in this Court on charges that on or around 23 October 2020 he attempted to murder, intentionally caused serious injury and recklessly caused serious injury to Li. The charges arise from an incident in which it is alleged Zheng stabbed Li in the back, hands and chest.

Evidence
Zheng

Zheng states he migrated to Australia in 2008 at the age of 14. He has since lived in Melbourne and is an Australian citizen.

Zheng married Chang Lu in Hebei in the People’s Republic of China in February 2019. He and Lu separated in late-2019. They have a three year old daughter.

Zheng said that in June 2019 he approached his father to assist with a deposit to buy a home. Zheng said: ‘My father agreed to loan us the sum of $500,000 to enable us to purchase our home on the condition that we repay him the loaned amount plus $100,000 in interest’.

In April 2019 Zheng purchased the property for $960,000. The purchase was in part funded by a RAMS home loan for $560,000 secured by first mortgage. Zheng said the balance of the purchase price was provided by his father via a cheque in the sum of $450,000 paid towards the deposit,…

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 Zheng

Details

AGLC: Li v Zheng [2022] VSC 520
Case: [2022] VSC 520
Decision Date: 5 September 2022

CaseChat Overview and Summary

Li brought an application for a freezing order against Zheng, pursuant to Supreme Court (General Civil Procedure) Rules 2015 (Vic) order 37A, to prevent dissipation of assets in circumstances where there was a risk that Li would be unable to recover any judgment debt if proceedings were successful. The primary dispute was whether the court should grant the order, given that the risk of dissipation was speculative, and that Zheng's alleged offences did not directly support the making of a freezing order. The court was required to determine whether there was a good arguable case, and whether the balance of convenience favoured the making of an order.

The court found that there was no good arguable case because the risk of dissipation was speculative, and the likelihood of success in the underlying proceedings was not sufficient to justify the order. The court noted that the decision in Zhen v Mo & Ors [2008] VSC 300 was not binding authority, but provided useful guidance. The court also found that the alleged offences did not support the making of a freezing order, as the orders were intended to prevent dissipation of assets, not to punish criminal conduct. The balance of convenience did not favour the making of an order, as the potential prejudice to Zheng outweighed any potential benefit to Li.

The court dismissed the application, and made no orders as to costs. The court noted that the decision was not intended to preclude Li from seeking other remedies, such as an interim injunction or security for costs, in the underlying proceedings.

Orders