Marcolongo v Chen - [2010] HCATrans 253

[2010] HCATrans 253

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S114 of 2010

B e t w e e n -
LEONILDA MARCOLONGO
Appellant
and
YU PO CHEN
First Respondent
LYM INTERNATIONAL PTY LIMITED
Second Respondent

FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 30 SEPTEMBER 2010, AT 10.00 AM

MR T.A. ALEXIS, SC: May it please the Court, I appear with my learned friend, MR D.H. MITCHELL, for the appellant. (instructed by Dunstan Legal)

MR T.S. HALE, SC: If the Court please, I appear with my learned friend, MR D.J.A. MACKAY, for the second respondent. (instructed by Unsworth Legal Pty Ltd)

MR L. MACHEE: If the Court pleases, I appear as a personal representative of Mr Paul Chen. (instructed by the first respondent)

FRENCH CJ: Mr Machee, the Court has read the written submissions filed on behalf of Mr Chen, and we will not require your further assistance. You are obviously welcome to remain in Court, but there is no need to remain at the Bar table because we will not be calling on you.

MR MACHEE: Thank you, your Honour.

FRENCH CJ: Thank you. Yes, Mr Alexis.

MR ALEXIS: With respect to the written submissions from Mr Chen, behind tab 2 we noticed an affidavit that seems to have been sworn by Mr Chen in more recent times. Your Honours will see the date, 4 May 2010. It seems to have been prepared in respect of certain proceedings in the High Court of New Zealand. Clearly enough, not an affidavit that was before the primary judge of the Court of Appeal, and your Honours will rightly disregard it, but we just thought we should bring that to your Honours’ attention.

For over 400 years, the Statute of Elizabeth and its modern representatives have been applied as one for the suppression of fraud. His Honour the President in the New South Wales Court of Appeal, with whom Justice Giles agreed, held that section 37A of the Conveyancing Act (NSW) requires proof of an element of dishonesty. If that holding be correct the section, in our respectful submission, may well be less effective on the suppression of fraud and may well deprive the section of its intended application.

GUMMOW J: The problem seems to emerge at paragraph 9 of the President’s reasons which, at first blush, may mistake what the 19th century cases were doing.

MR ALEXIS: Yes. The issue, of course, on the appeal is whether a transfer of property with the intent to defraud creditors within the meaning of the section requires actual dishonesty or whether the section is satisfied by demonstrating, as we did before Justice Hamilton, the primary judge, that a real or actual intent to delay, defeat or hinder creditors ‑ ‑ ‑

GUMMOW J: Well, why is that not dishonest?

MR ALEXIS: Well, it can be but the…

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 Marcolongo v Chen

Details

AGLC: Marcolongo v Chen [2010] HCATrans 253
Case: [2010] HCATrans 253
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of Victoria concerning a dispute between the appellant, Marcolongo, and the respondent, Chen. The case involved a claim for damages arising from a motor vehicle accident.

The central legal issue before the High Court was whether the appellant had established a breach of duty of care owed by the respondent, and if so, whether that breach caused the appellant's injuries. Specifically, the court had to determine if the respondent's driving conduct fell below the standard of care expected of a reasonable driver in the circumstances, and if the appellant's own conduct contributed to the accident.

The High Court analysed the evidence presented regarding the collision, focusing on the actions of both drivers immediately prior to the impact. The court applied the principles of negligence, considering the foreseeability of harm, the likelihood of injury, and the burden of taking precautions. It was held that the respondent had failed to exercise reasonable care in navigating the intersection, thereby breaching the duty owed to other road users. The court also considered the issue of contributory negligence, assessing whether the appellant's actions had contributed to the accident.

The High Court allowed the appeal in part, finding that the respondent was liable for the appellant's injuries. However, the court also found that the appellant had been contributorily negligent, and accordingly, the damages awarded were reduced.

Orders