Lien Hoa Women Buddhist Meditation Centre Incorporated v KL Aussie Pty Ltd
[2024] NSWSC 1562
•04 December 2024
Supreme Court
New South Wales
Medium Neutral Citation: Lien Hoa Women Buddhist Meditation Centre Incorporated v KL Aussie Pty Ltd [2024] NSWSC 1562 Hearing dates: 04 December 2024 Date of orders: 04 December 2024 Decision date: 04 December 2024 Jurisdiction: Common Law Before: Price AJ Decision: 1. The application to vacate the hearing is granted.
2. The defendants are to pay the plaintiff’s costs occasioned by the hearing date being vacated as agreed or assessed.
3. Leave is granted to the plaintiff to file and serve an amended statement of claim by 11 December 2024.
4. Leave is granted to the defendants to file and serve an amended defence by 23 December 2024
5. The defendants are to serve any evidence upon which they intend to rely by 24 January 2025
6. The plaintiff is to serve any evidence upon which it intends to rely by 7 February 2025
7. The matter is listed for hearing on 17 February 2025 with an estimate of a day and a half.
8. Liberty is granted to either party to restore the matter to the list with 3 days’ notice to the other.
9. The parties are to comply so much as possible with Annexure A to the Common Law Division practice notes.
Catchwords: CIVIL PROCEDURE – application to vacate hearing – matter set down as undefended – dictates of justice
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: KL Aussie Pty Ltd v Lien Hoa Women Buddhist Meditation Centre (Chua Lien Hoa) Incorporated (No. 2) [2023] NSWSC 404
Category: Procedural rulings Parties: Lien Hoa Buddhist Meditation Centre Incorporated (Plaintiff)
KL Aussie Pty Ltd (First Defendant)
Huynh Luan Lam (Second Defendant)
Thi Ngoc Lieu Pham (Third Defendant)Representation: Counsel:
Solicitors:
E Cohen (Plaintiff)
N Mirzai (First, Second and Third Defendants)
WestLink Legal (Plaintiff)
Miller Prince (First, Second and Third, Defendants)
File Number(s): 2024/45388
Ex Tempore JUDGMENT
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The present proceedings were listed by the Common Law Registrar for an undefended hearing estimated to take half a day. It appears that the Registrar made that order on 25 September 2024 as the defendants had not complied with the orders to file affidavit evidence and had not appeared.
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By notice of motion dated 20 December 2024 the defendants seek to vacate the hearing. In support of their application the defendants rely on the affidavits of Thi Ngoc Lieu Pham, Huynh Luan Lam and Christopher Kindis. Mr Kindis is a solicitor in the employ of Miller Prince Solicitors who now act for the defendants. Mr Lam is the second defendant and is a director of KL Aussie Pty Ltd, the first defendant; Ms Pham, the third defendant, is also a director of the first defendant and is the wife of the second defendant.
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In her affidavit Ms Pham explains that she and her husband were unable to comply with the orders made by the Registrar as they experienced financial difficulties. They were previously legally represented, and a defence was filed on behalf of all the defendants on 14 June 2024. Due to what is referred to as significant financial difficulties experienced after that time, they could no longer afford legal representation. They sold their home in September this year and their equity from the sale is approximately $300,000.
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In their affidavits Ms Pham and Mr Lam, who are of Vietnamese background, state that their English is limited. Mr Lam states that he finds it challenging to understand legal matters without them being carefully explained to him. Ms Pham states that she did not understand what they needed to do without legal representation. In short, their lack of compliance with the court orders is they say, due to their financial difficulties and their difficulties understanding what was required.
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On around 29 November 2024 they engaged Miller Prince to act on their behalf. It became immediately evident to their solicitors that with no evidence served in the proceedings an application to vacate today's hearing would need to be made. In his affidavit Mr Kindis annexes the communications between the solicitors concerning an adjournment application.
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Mr Mirzai, the defendant's counsel, in his submissions refers to the defendants' substantial defences being,
a dispute as to the nature of the interest accruing on the loan facility claimed by the plaintiff;
questions of issue estoppel and estoppel by res judicata;
so far as the first and second defendants are concerned, there is an issue concerning the nature of the guarantee; and
an issue as to whether or not the plaintiff is required to account to the defendants for moneys it owes the defendants in other proceedings.
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A judgment was entered in favour of the first defendant in the sum of $85,145 by Williams J in KL Aussie Pty Ltd v Lien Hoa Women Buddhist Meditation Centre (Chua Lien Hoa) Incorporated (No. 2) [2023] NSWSC 404.
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It appears there has been considerable litigation between the parties.
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The orders sought by the defendants in their motion include that they are to pay the plaintiff's costs thrown away arising from the hearing being vacated and the time for the defendants to serve any lay evidence be extended to 24 January 2025.
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The Court's power to grant an adjournment must be exercised in accordance with the overriding purpose of the Civil Procedure Act 2005 (NSW) (“CPA”) being the just, quick and cheap resolution of the real issues in dispute s 56(1); in accordance with the dictates of justice s 58 and the elimination of delay s 59.
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The plaintiff has abided by the orders of the Registrar and is entitled to have the matter heard without delay. However, as I have indicated in my discussions with Ms Cohen of counsel who appears for the plaintiff, the plaintiff's amended written submissions indicate that the plaintiff's pleading and the original affidavit sworn in support are not without difficulty. There are mistakes in the statement of claim concerning the amounts lent to the defendants. It appears that the advance was not $1,975,000 but was $1,502,865.88. The statement of claim has not been amended.
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Whilst it is true that this mistake favours the defendants, the pleadings must accurately reflect what is now claimed. Procedural fairness and the dictates of justice entitle the defendants to plead their defences to the plaintiff's claim as accurately stated. I am of the view that the orders which I will make should grant the plaintiff leave to file an amended statement of claim.
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I have enquired as to when this matter may be set down for a defended hearing if the application to vacate is granted. I have been informed that any time after 3 February 2025 for a full day hearing, being a defended hearing is available.
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It is in the interests of justice that the real issues in dispute be heard and determined between the parties as soon as possible. That would not occur today; as none of the parties are present for the purpose of cross-examination; furthermore, I have regard to the unsatisfactory state of the pleadings and the lack of evidence on behalf of the defendants.
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Accordingly, I propose to vacate today's hearing which was set down on an undefended basis.
Court Orders
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The application to vacate the hearing is granted.
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The defendants are to pay the plaintiff’s costs occasioned by the hearing date being vacated as agreed or assessed.
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Leave is granted to the plaintiff to file and serve an amended statement of claim by 11 December 2024.
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Leave is granted to the defendants to file and serve an amended defence by 23 December 2024
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The defendants are to serve any evidence upon which they intend to rely by 24 January 2025
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The plaintiff is to serve any evidence upon which it intends to rely by 7 February 2025
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The matter is listed for hearing on 17 February 2025 with an estimate of a day and a half.
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Liberty is granted to either party to restore the matter to the list with 3 days’ notice to the other.
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The parties are to comply so much as possible with Annexure A to the Common Law Division practice notes.
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Decision last updated: 04 December 2024
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