Mei Zhang v Ye Cheng

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mei Zhang v Ye Cheng [2018] NSWCA 299
Hearing dates:	4 December 2018
Date of orders:	04 December 2018
Decision date:	07 December 2018
Before:	McColl JA, Sackville AJA
Decision:	1.    Extend the time for filing a summons seeking leave to appeal until 16 August 2018. 2.    Dismiss the application for leave to appeal. 3.    The applicant pay the respondent’s costs of the application for leave to appeal.
Catchwords:	CIVIL PROCEDURE — Application for leave to appeal — challenge to interlocutory decision setting aside a default judgment – whether the application raises an issue of principle – whether any significant injustice would be caused by a refusal of leave
Legislation Cited:	Contracts Review Act 1980 (NSW) District Court Act 1970 (NSW), s 127(2)(a) Uniform Civil Procedure Rules 2005 (NSW) rr 36.16, 51.10
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Mei Zhang v Ye Chang (District Court (NSW), 1 June 2018, unrep) Young v Cooke [2017] NSWCA 33
Category:	Procedural and other rulings
Parties:	Mei Zhang (Applicant) Ye Cheng (Respondent)
Representation:	Counsel: Mr S Burchett (Applicant) Ms H Mann (Respondent)   Solicitors: CSJ Legal Group (Applicant) Keypoint Law (Respondent)
File Number(s):	2018/251785
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 8 June 2018 Before: Dicker SC DCJ File Number(s): 2017/266631

Judgment

1. THE COURT: On 4 December 2018, the Court made orders extending the time for the applicant to file a summons seeking leave to appeal but dismissing the application for leave to appeal. The Court reserved its reasons. These are the reasons for the orders. The applicant sought an extension of time to file a summons seeking leave to appeal from an interlocutory decision of the District Court (Dicker SC DCJ). [1] On 26 October 2017, the primary Judge set aside a default judgment that had been entered in favour of the applicant against the respondent. The primary Judge’s order setting aside the judgment was conditional upon the respondent paying the sum of $15,994.52 towards any liability ultimately found in favour of the applicant. Subject to that condition, the respondent was given leave to file a defence in the form annexed to his affidavit of 20 April 2018.

   1.    Mei Zhang v Ye Chang (District Court (NSW), 1 June 2018, unrep) (Primary Judgment). Leave to appeal is required because the primary Judge’s decision was interlocutory: District Court Act 1970 (NSW), s 127(2)(a).

2. The applicant filed the summons seeking leave to appeal on 16 August 2018, over two months after the Primary Judgment was delivered and orders were made setting aside the default judgment. The summons was therefore filed outside the period of 28 days from the material date prescribed for the filing of a summons seeking leave to appeal. [2] It is for this reason that the applicant required an extension of time in which to file the…