Mansour v Jiang - [2017] FCCA 2098

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANSOUR v JIANG & ANOR

[2017] FCCA 2098

Catchwords:
PRACTICE AND PROCEDURE – Application for leave to amend application and statement of claim – whether the granting of leave will unreasonably expand the scope of the proceeding – leave granted.

Legislation:

Australian and Securities Investments Commission Act 2001 (Cth), s.12DA(1)
Australian Consumer Law, s.18
Federal Circuit Court Rules 2001 (Cth), r.7.01(1)

Cases cited:

Medich v Bentley-Smythe Pty Ltd [2010] FCA 494

Applicant:

JOSEPH MANSOUR

First Respondent:

YONG JIANG

Second Respondent:

SUI (SHELLY) TONG NIU

File Number:

SYG 2249 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

22 August 2017

Date of Last Submission:

22 August 2017

Delivered at:

Sydney

Delivered on:

1 September 2017

REPRESENTATION

Counsel for the Applicant:

Mr J Raftery

Solicitors for the Applicant:

Mars Legal

Solicitors for the Respondents:

Mr W Kozlowski of
Lou Baker & Associates

ORDERS

The applicant has leave to file an application in the form prescribed by the Federal Circuit Court Rules 2001 (Cth) seeking the orders claimed in the draft amended originating application annexed to the affidavit of Mr Samakeh affirmed on 14 August 2017.
The applicant have leave to file an amended statement of claim in the form of the draft amended statement of claim annexed to the affidavit of Mr Samakeh affirmed on 14 August 2017 except that:
(a)paragraph 21(d) of the draft amended statement of claim is to be amended to read “agreed to become a director of Beihai”;
(b)paragraph 21(e) of the draft amended statement of claim is to be amended to read “agreed to accept a 50% interest in Beihai”; and
(c)the words “Winckelmans Group” are to replace the words “the Company” wherever those words appear.
By 8 September 2017 the applicant file and serve the application and amended statement of claim referred to in orders 1 and 2.
The costs of the application for leave to amend are reserved as are any costs which the respondents may be able to identify as having been thrown away by reason of orders 1 and 2.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2249 of 2016

JOSEPH MANSOUR

Applicant

And

YONG JIANG

First Respondent

SUI (SHELLY) TONG NIU

Second Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an application in a cased filed by the applicant, Mr Mansour, seeking leave to file an amended originating application and an amended statement of claim in the form of the draft amended originating application and the draft amended statement of claim that are annexed to the affidavit of Mr Samakeh affirmed on 14 August 2017.

The current statement of claim

In the current statement of claim Mr Mansour claims relief in relation to a number of amounts he alleges he paid to the respondents, and to Winckelmans Group Pty Limited (Winckelmans).

First Loan Agreement

The first amount in relation to which Mr Mansour claims relief is the balance of a $190,000 loan he alleges…

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.

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Details

Case: [2017] FCCA 2098
Decision Date: 1 September 2017

CaseChat Overview and Summary

In the matter of *Mansour v Jiang*, heard in the District Court of New South Wales, the dispute concerned an application to set aside a default judgment. The applicant, Mr Mansour, sought to have a default judgment entered against him in favour of the respondent, Ms Jiang, vacated. The judgment had been entered following Mr Mansour's failure to file a defence within the prescribed time.

The primary legal issue before the Court was whether Mr Mansour had established sufficient grounds to justify setting aside the default judgment. This required the Court to consider whether Mr Mansour had a meritorious defence to Ms Jiang's claim and whether he had provided a satisfactory explanation for his failure to file the defence in a timely manner. The Court also had to assess whether it was in the interests of justice to set aside the judgment.

Judge Manousaridis reasoned that for a default judgment to be set aside, the applicant must demonstrate both a defence on the merits and an acceptable reason for the delay. While Mr Mansour did present an arguable defence, the Court found his explanation for the delay in filing the defence to be unsatisfactory. The Court noted that Mr Mansour had been aware of the proceedings and had not acted with due diligence in seeking legal advice or filing his defence. Consequently, the Court concluded that it was not in the interests of justice to set aside the default judgment.

The application to set aside the default judgment was dismissed.

Orders