Nikolic v Guo - [2022] WASC 386

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NIKOLIC -v- GUO [2022] WASC 386
CORAM:   MASTER SANDERSON
HEARD:   7 NOVEMBER 2022
DELIVERED          :   7 NOVEMBER 2022
PUBLISHED           :   15 NOVEMBER 2022
FILE NO/S:   CIV 2059 of 2021
BETWEEN:   DAVOR NIKOLIC
Plaintiff

AND

XIUYI GUO
First Defendant

SHUYA DUAN
Second Defendant

Catchwords:

Practice and procedure - Application for freezing order - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
First Defendant	:	D Chandler
Second Defendant	:	D Chandler

Solicitors:

Plaintiff	:	In Person
First Defendant	:	AH2 Legal
Second Defendant	:	AH2 Legal

Case(s) referred to in decision(s):

Nedroc Pty Ltd v Welling [2016] WASC 363

MASTER SANDERSON:

By a chamber summons filed 19 July 2022, the plaintiff sought a freezing order in relation to two properties in Northbridge owned by the first and second defendants. The application was supported by an affidavit of the plaintiff sworn 8 July 2022. In opposition to the application, both the first and second defendants filed affidavits sworn 8 August 2022. (The defendants also relied on an affidavit of Qunhua Dai sworn 8 August 2022. This affidavit provided a translation of the affidavit of the first defendant who speaks limited English). The plaintiff filed a further affidavit sworn 26 August 2022 and the defendants filed an affidavit of Anfernee Hok Ming Lai affirmed 21 September 2022. This last affidavit attached a copy of a conditional contract for the sale of the two Northbridge properties, the subject of the application. The plaintiff and the defendants filed written submissions. After hearing oral argument I dismissed the plaintiff's application. I said I would provide reasons for my decision. These are those reasons.
By reference to the statement of claim, the plaintiff's claim can be summarised as follows. The plaintiff was at all material times the sole proprietor of Architectural Online. The first and second defendants, as registered proprietors of the two properties in Northbridge, proposed to construct a hotel on the site. The plaintiff alleges on 20 April 2019, the plaintiff entered into a written contract with the first and second defendants to project manage the construction of the new proposed hotel. The plaintiff alleges on 20 November 2020, the first and second defendants repudiated the contract. The plaintiff says he accepted the repudiation of the contract and pursuant to the terms of the contract he is entitled to damages. It is the defendants' position they never entered into any contract with the plaintiff and accordingly they are not liable for damages.
It is clear then the plaintiff's claim is a claim in personam. That is to say, he is not claiming any interest in the two properties. If he were claiming such an interest he could no doubt lodge caveats to protect his interest. But that option is not available to him. He brought the application for a freezing order because he was concerned the defendants might remove…

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 Nikolic v Guo

Details

AGLC: Nikolic v Guo [2022] WASC 386
Case: [2022] WASC 386
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia was asked to decide whether a freezing order should be granted in the case of Nikolic v Guo. The plaintiff, Davor Nikolic, sought the order in relation to two properties owned by the first and second defendants, Xiuyi Guo and Shuya Duan. Nikolic claimed that the defendants had repudiated a contract to project manage the construction of a hotel on the properties and he was owed damages. The defendants, on the other hand, maintained that no such contract existed. The plaintiff applied for a freezing order to prevent the defendants from disposing of the properties, fearing that they might remove assets from the jurisdiction. The court examined whether the plaintiff had a good arguable case and whether there was a danger that the defendants would dissipate their assets. After considering the evidence, the court concluded that while the plaintiff had a good arguable case, there was no evidence to suggest that the defendants would abscond or dissipate their assets. Therefore, the application for a freezing order was dismissed.

The legal issues before the court were whether the plaintiff had established a good arguable case and if there was a danger that the defendants would dissipate their assets, justifying a freezing order. The court noted that the plaintiff had a good arguable case, but this alone was not enough to warrant a freezing order. The court further considered that there was no evidence indicating that the defendants might abscond or dissipate their assets. The defendants had a conditional contract for the sale of the properties, but they maintained this was part of their normal business operations and there was no evidence to suggest otherwise. Both defendants also affirmed their commitment to remaining in the jurisdiction. Given these circumstances, the court found that the plaintiff had not met the necessary criteria to warrant a freezing order.

In reaching its decision, the court referred to relevant rules and case law. It noted that under O 52A r 5(4) of the Rules of the Supreme Court 1971 (WA), a freezing order could be made if there was a danger that a judgment or prospective judgment would be unsatisfied. The court referenced the decision in Nedroc Pty Ltd v Welling [2016] WASC 363, which outlined the requirements for a good arguable case and the circumstances under which a freezing order may be justified. The court concluded that while the plaintiff had a good arguable case, there was insufficient evidence to suggest that the defendants would dissipate their assets. Therefore, the application for a freezing order was dismissed. The court ordered that if the parties could not agree on costs, short written submissions should be filed within seven days of the publication of the reasons.

Orders