Pi v Zhou - [2015] NSWSC 1644

Supreme Court

New South Wales

Medium Neutral Citation: Pi v Zhou [2015] NSWSC 1644
Hearing dates: 2 November 2015
Decision date: 09 November 2015
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Judgment for the defendants.
(2) Unless either party makes an application in writing to my Associate within seven days hereof, order the plaintiff to pay the defendants’ costs of the proceedings.
Catchwords:
TORT – assault – credibility of witnesses - standard of proof where grave allegations made – motive is an aspect of probability - onus not discharged – finding that defendant acted in self defence
CONTRACT – claim for breach of covenant of quiet enjoyment and alleged forced eviction from premises – evidence of plaintiff not accepted – failure to discharge onus
Legislation Cited: Evidence Act 1995 (NSW), s 140
Consumer Trader and Tenancy Act 2001 (NSW), s 51
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Helton v Allen (1940) 63 CLR 691
Onassis and Calerropolous v Vergiottis [1968] 21 Lloyds LR 403
Category: Principal judgment
Parties: Guang Hoa Pi (Plaintiff)
Jian Cheng Zhou (First Defendant)
Christine Zhao (Second Defendant)
Representation:
Counsel:
Plaintiff in person
J O’Connor (Defendants)
Solicitors:
John Orford & Associates (Defendants)

File Number(s): 2013/389177

Judgment

Introduction

Mr Zhou, the first defendant, and his wife, Mrs Zhao, the second defendant, own a property in Lakemba (the Property) on which there is a house and a one-bedroom flat. The defendants leased the flat as well as spare bedrooms in the house. In June 2010 Mr Pi, the plaintiff, agreed to rent the flat for the sum of $100 per week.
Mr Pi occupied the flat until 12 January 2011. At about 7pm on 12 January 2011 there was an altercation between Mr Pi and Mr Zhou in the yard of the property as a result of which injuries were sustained by both of them. Mr Pi’s occupation ceased from that time.
By statement of claim filed on 8 July 2015, Mr Pi claimed:

Damages for breach of contract against Mr Zhou, arising from Mr Zhou’s interference with his quiet enjoyment of the flat and from his forced eviction from the Property;

Damages against both defendants with respect to the assault on 12 January 2011; and

Damages against Mr Zhou for conversion of a washing machine.

The defendants deny these allegations. With respect to the assault, they admit that there was an altercation between Mr Pi and Mr Zhou on 12 January 2011 but contend that Mr Pi was the instigator and that, to the extent to which Mr Zhou used force in the exchange, he did so only in self defence. Mr Pi had originally made other claims, including in defamation. However his pleading in that respect was struck out at an earlier hearing.
The plaintiff and both defendants gave oral evidence and were cross-examined.

The facts

The background

The defendants purchased the Property in 2003. The house had four bedrooms. The detached flat had one bedroom. There was also a separate kitchen and…

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 Pi v Zhou

Details

AGLC: Pi v Zhou [2015] NSWSC 1644
Case: [2015] NSWSC 1644
Decision Date: 09 November 2015

CaseChat Overview and Summary

The case of Pi v Zhou was heard by the Supreme Court of Victoria. The plaintiff, Pi, sued the defendant, Zhou, for assault and breach of covenant of quiet enjoyment, along with an allegation of forced eviction from premises. The plaintiff claimed that the defendant physically assaulted him, breached the covenant of quiet enjoyment by causing disturbances, and forced him to leave the premises. The defendant denied all allegations and claimed that any physical altercation was in self-defence.

The court had to determine the credibility of the witnesses and assess whether the plaintiff had discharged the onus of proof in relation to the assault. Additionally, the court had to consider whether the plaintiff had discharged the onus of proving that the defendant breached the covenant of quiet enjoyment and forced him to leave the premises. The court also had to consider the defendant's claim of self-defence.

The court found that the plaintiff's evidence was not credible and did not discharge the onus of proof. The court held that the plaintiff failed to establish the defendant's motive as an aspect of probability and did not prove the assault on the balance of probabilities. The court also found that the plaintiff did not discharge the onus of proving that the defendant breached the covenant of quiet enjoyment and forced him to leave the premises. The court accepted the defendant's claim of self-defence as the more probable explanation for any physical altercation that occurred.

The court dismissed the plaintiff's claims and ordered the plaintiff to pay the defendant's costs.

Orders