Peng Yuan Gao v Yan Zhang

[2002] VSC 276

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE PRACTICE COURT

No. 5934 of 2001

PENG YUAN GAO	Plaintiff
v
YAN ZHANG	Defendant

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JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 July 2002
DATE OF JUDGMENT:	1 July 2002
CASE MAY BE CITED AS:	Peng Yuan Gao v Yan Zhang
MEDIUM NEUTRAL CITATION:	[2002] VSC 276

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APPEAL FROM MASTER – Leave to join parties – No basis for joinder.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Ms L. Hannon	Clayton Utz
HIS HONOUR:

1. This is an appeal from a Master in which the plaintiff is the appellant. The plaintiff is Peng Yuan Gao, who has sued Mrs Yan Zhang. If one goes back in time, the writ was issued on 24 May 2001. Mr Gao appears for himself and prepares his documents, and in considering the statement of claim some allowance must be made for the fact that he has prepared his documents.

2. It would appear that at some time in the period from about November 1999 to July 2000, the appellant met Mrs Zhang. There were discussions about a proposed marriage and it is alleged that Mrs Zhang agreed to marry him and, not only that, agreed to enter into some business relationship. As a result of those alleged promises and representations, the plaintiff allegedly paid to the defendant approximately $226,510 between 30 November 1999 and 30 December 1999.

3. The plaintiff seeks to recover damages for breach of the promises and representations. In effect he seeks to recover the sum given to the defendant together with interest.

4. The claim was originally struck out but it was reinstated as a result of an appeal to the Court of Appeal. More recently the defendant made application in relation to the statement of claim and Ashley, J. ordered that certain parts of the statement of claim be deleted and gave leave to the plaintiff to file and serve a further amended statement of claim.

5. Mr Gao appealed to the Court of Appeal in relation to that order, and the Court of Appeal on 24 June this year refused him leave to appeal. He has not as yet delivered an amended statement of claim.

6. On 5 June 2002 the appellant issued a summons which was returnable before the Listing Master on 17 June. In it he sought an order that the defendant discover and give information of the name and address for service for persons who were described by Mr Gao as "Messrs John and T.S. Serv." In the second paragraph of his summons he sought leave to file an amended writ and to add defendants in the proceeding. The third paragraph sought leave to add charges of conspiracy to defraud and to defeat justice, and an offence of perjury in the proceeding.

7. The matter came on before Master Kings on 25 June 2002. In support of the application Mr Gao swore an affidavit on 5 June 2002. Mr Gao appeared before the Master and the defendant was represented by a solicitor. The Master ordered that the plaintiff's summons be dismissed. She further ordered that the plaintiff pay the defendant's costs.

8. It is against those orders that Mr Gao now appeals to the court. The appeal is a re- hearing de novo and accordingly I must consider the matter afresh. I have carefully considered the affidavit of Mr Gao, and I have done my best to understand his submissions. I am correct in saying that Mr Gao has been told on previous occasions that the court would be assisted if he obtained the services of an interpreter, but, more often than not, these suggestions are ignored. I have had the usual problem with Mr Gao which is experienced by other members of this court, that is, difficulty in understanding what he is saying. Having said that, I have pointed out to him that I must decide this application in accordance with his affidavit, namely, the material before me.

9. Mr Gao has indicated that he wishes to join as defendants a person who he now knows by the first name of John, and an entity or person called T.S. Serv. He has also informed me that he wishes to join the Bank of Melbourne and also the HSBC Bank.

10. It is convenient that I should deal with his second prayer for relief first, which is in these terms:

"2. The plaintiff has leave to file an amend (sic) writ and to add
defendants in the proceeding."

As I have indicated, he has identified the proposed defendants as Messrs John and
T.S. Serv and the two banks.

1. Before the court could grant leave to a party to add a defendant to a proceeding it would be necessary for that party to show that he had a cause of action against the proposed defendant or, at the very least, an arguable cause of action. The first question I have to consider is whether Mr Gao's material does disclose any cause of action against the person John and whoever or whatever T.S. Serv is. There are references in his affidavit to a John, in paragraph 8, paragraph 12B, paragraph 15(d), paragraph 19 and also paragraph 22. Mr Gao asserts in his affidavit that on or about 30 January 2000 the defendant paid a sum of about $200,000 by HSBC Bank cheque to John. He asserts that John was a boyfriend of the defendant. As best I understand Mr Gao, the suggestion is that that was his money. However, there is no evidence to support the assertion that that was his money. It may have been his money, but his cause of action against the defendant is for money that he paid to her. He is seeking damages for breach of her promises and representations to him. Once the money was paid to her, she could do what she wished with it, and his cause of action arose after he had paid the money to her. The mere fact that she may have paid the money to John does not in any way disclose a cause of action against the person John. The plaintiff has not established against John, any of the matters set out in Rule 9.06.

2. So far as T.S. Serv is concerned, there is a reference to T.S. Serv in the beginning of paragraph 15 and there is a reference in 15(d). In addition, there is a reference in paragraph 22. It would appear from what Mr Gao is saying that T.S. Serv actually paid some money to the defendant. It would appear the sum was in the order of $200,000. Mr Gao in his paragraph 22 says this:

   "T.S. Serv was found in the evidence produced by MELB to County Court in November 2001. T.S. supported that they provided fund of $200,000 for Yan on 30 November 1999. On 4th August 2000 John alleged that he gave Yan $125,000 in cash. What sort of relationship among John, T.S. and rest defendants? Therefore T.S., Melb, HSBC must appear in this proceeding."

   That paragraph is somewhat revealing as to what is the real object of this exercise, which appears to be join anybody who may have had anything to do with that dealing with the defendant and large sums of cash.

3. I cannot find any basis in the material for any form of cause of action against these alleged persons or entities. The same can be said in relation to the two banks he wishes to join. Nothing in this affidavit material discloses any form of cause of action against them.

4. In my view, it would be inappropriate to grant the plaintiff leave to add those four entities as defendants in the proceeding. Accordingly, the relief he seeks in paragraph 2 is refused.

5. I now go back to paragraph 1, which is in this form -

"1. In pursuance of [r 32.03] discovery to identify defendants first defendant is asked to give information of name and address of service for Messrs John and T.S. Serv."

In limited circumstances one can make an order under rule 32.03 requiring a party to disclose certain information about a party, but one would have to be satisfied that reasonable enquiries have been made, and that it was impossible to identify the person. Having said that, it seems to me that what is sought in paragraph 1 follows on from paragraph 2, which I have dismissed, namely before a court would make an order requiring any person to identify anybody, it would be necessary to show that the unidentified party may become a party in the proceeding as a defendant. Following on from the dismissal of paragraph 2, in my view there is no basis for making an order under rule 32.03. Accordingly, the relief sought in paragraph 1 also fails.

1. Turning to paragraph 3 of the summons, the plaintiff seeks leave to add charges of conspiracy to defraud, to defeat justice, an offence of perjury in the proceeding. Mr Gao has had a number of opportunities to amend his statement of claim. He should not be permitted to amend his statement of claim unless he has some basis for alleging that there are such claims, and they are arguable claims, against the present defendant. I have carefully read his affidavit and I am not persuaded that there is any basis for giving him leave to make these claims against the defendant. Accordingly, the relief sought in the paragraph fails.

2. In my view, the Master was clearly right in her decision and accordingly I dismiss the appeal.

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