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Ng v Chong

Ng v Chong

Case [2010] NSWSC 127 25 February 2010

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CITATION: Ng v Chong; Ng v Lee & 2 Ors [2010] NSWSC 127

HEARING DATE(S): 17 July 2009

JUDGMENT DATE :
25 February 2010

JUDGMENT OF: Fullerton J

DECISION: 1. Appeals dismissed.
2. Plaintiff is to pay defendants' costs on an indemnity basis.

CATCHWORDS: APPEAL - appeal from Local Court - question of procedural fairness - indemnity costs - appeal dismissed

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules

CASES CITED: City of Sydney Council v Satara [2007] NSWCA 148
Dennis v Australian Broadcasting Commission [2008] NSWCA 37
Joseph Lahoud & Anor v Victor Lahoud & Ors [2006] NSWSC 126

PARTIES: Chin Bing Ng (Plaintiff)
Lee Li Chong (Defendant)
Kee Lan Lee (Defendant)
Pee Ping Chong (Defendant)

FILE NUMBER(S): SC 2008/14683; 2008/14684

COUNSEL: WP Lowe (Plaintiff)
T Porman (Solicitor - Defendants)

SOLICITORS: Vassili Fozzard (Plaintiff)
Turner Freeman (Defendants)

LOWER COURT JURISDICTION: Local Court

LOWER COURT JUDICIAL OFFICER : Garbett LCM

LOWER COURT DATE OF DECISION: 8 August 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

FULLERTON J

25 FEBRUARY 2010

2008/14683 CHIN BING NG v LEE LI CHONG
2008/14684 CHIN BING NG v KEE LAN LEE & 2 ORS
JUDGMENT

1 HER HONOUR: Chin Bing Ng (known also as Andrew Ng), the plaintiff in the present proceedings, seeks leave to appeal against orders made by Magistrate Garbett on 8 August 2008. On that date his Honour entered judgment in the amounts of $40,950 and $46,688.31 in respect of two statements of claim filed in the Local Court Civil Claims Division. Mr Ng was the defendant in both proceedings. Ms Lee Li Chong was the sole plaintiff in one set of proceedings and, in the related set of proceedings, the first plaintiff, the other parties being family members with whom she jointly operated a bank account. The litigation was commenced following the acrimonious breakdown of a de facto relationship between Mr Ng and Ms Chong.

2 Although there were two summons filed in this Court, both of which were listed before me for hearing, I was invited by counsel for Mr Ng to determine the question of leave to appeal by reference to an amended summons dated 14 November 2008 which seeks orders quashing the orders made in the Local Court in both proceedings, inclusive of an order that the costs of both be paid by Mr Ng, and an order remitting both matters to the Local Court for hearing in accordance with law.

3 The relief sought in the amended summons is under the rubric of what is pleaded as a denial of procedural fairness which is particularised as follows:

1. By proceeding to determine the matter in the plaintiff’s absence without affording him a reasonable opportunity to be heard.

2. By failing to ensure that the plaintiff had a reasonable opportunity to adduce evidence and otherwise present the plaintiff’s case in the proceedings.

3. By failing to temporarily adjourn the proceedings to allow the plaintiff to attend before the Tribunal and be heard…

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 Ng v Chong

Details

AGLC: Ng v Chong [2010] NSWSC 127
Case: [2010] NSWSC 127
Decision Date: 25 February 2010

CaseChat Overview and Summary

The case of Ng v Chong involved an appeal by the defendant, Chong, against a decision made by the Local Court. The defendant sought to challenge the procedural fairness of the proceedings and sought indemnity costs from the plaintiff, Ng. The appeal was dismissed by the court. The parties involved in the dispute were Ng, the plaintiff, and Chong, the defendant, who had been involved in a legal dispute that was initially heard in the Local Court.

The legal issues before the court included whether the proceedings in the Local Court were procedurally fair and whether the defendant was entitled to indemnity costs. The court had to consider whether the Local Court's proceedings were conducted in a manner that was fair and just, and whether the defendant had been deprived of a fair opportunity to present their case. Additionally, the court had to determine if the defendant's application for indemnity costs was appropriate given the circumstances of the case.

The court found that the Local Court's proceedings were procedurally fair, and that the defendant had not been deprived of a fair opportunity to present their case. The court held that there was no basis for the defendant's claim of procedural unfairness. Furthermore, the court determined that the defendant was not entitled to indemnity costs, as the circumstances of the case did not warrant such an award. The court dismissed the appeal and upheld the decision of the Local Court.

Orders