Mei Zhang v Ye Cheng

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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…

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Details
Case
[2018] NSWCA 299
Decision Date

CaseChat Overview and Summary

Mei Zhang (the applicant) sought leave to appeal from an interlocutory decision of the Supreme Court of New South Wales that set aside a default judgment previously entered against Ye Cheng (the respondent). The application for leave to appeal was heard by McColl JA and Sackville AJA in the Court of Appeal of the Supreme Court of New South Wales.

The primary legal issues before the Court of Appeal were whether the application for leave to appeal raised an issue of principle, and whether any significant injustice would be caused to the applicant by refusing leave to appeal. These considerations are central to the determination of whether leave to appeal should be granted from an interlocutory decision.

The Court of Appeal considered the criteria for granting leave to appeal from an interlocutory decision, which requires demonstrating an issue of principle or a significant injustice. After reviewing the circumstances and the arguments presented, their Honours concluded that neither of these criteria had been met. Consequently, the Court of Appeal decided to dismiss the application for leave to appeal.

The Court ordered that the time for filing the summons seeking leave to appeal be extended until 16 August 2018, but ultimately dismissed the application for leave to appeal. The applicant was also ordered to pay the respondent’s costs of the application for leave to appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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