Qin v He - [2017] NSWSC 978

Supreme Court

New South Wales

Medium Neutral Citation: Qin v He [2017] NSWSC 978
Hearing dates: 21 July 2017
Date of orders: 21 July 2017
Decision date: 21 July 2017
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) The proceedings are dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW).
(2) The Plaintiff is to pay the costs of the First and Third Defendants.
Catchwords:
PRACTICE AND PROCEDURE – summary dismissal – whether statement of claim pleaded any cause of action – whether proceedings are frivolous and vexatious – plaintiff self-represented – whether pleaded claim was manifestly hopeless – loan agreement between plaintiff and another and one of three defendants – borrower is undischarged bankrupt – plaintiff and other lender obtained judgment against borrower on loan agreement in Local Court – claim by plaintiff for interest in two properties where loan monies were said to be expended – one property owned jointly by borrower and another defendant – one property owned by two defendants but not borrower – whether any basis for equitable tracing – other lender not a party to proceedings – claim manifestly hopeless – summary dismissal order made
PRACTICE AND PROCEDURE – pleadings – second attempt at pleading - irrelevant material pleaded – pleading contained evidence – difficulty discerning cause of action – whether pleading embarrassing – whether further opportunity to plead should be given
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125
McGuirk v The University of New South Wales [2009] NSWSC 1424
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Waters v Commonwealth of Australia [2012] NSWSC 790
Category: Procedural and other rulings
Parties: Wei Wen Qin (Plaintiff)
Kaijun He (First Defendant)
Li Li (Second Defendant)
View Land Properties Pty Ltd (Third Defendant)
Representation:
Counsel:
In person (Plaintiff)
K Young (First & Third Defendants)
No appearance (Second Defendant)
Solicitors:
Unrepresented (Plaintiff)
Shen’s Lawyers (First & Third Defendants)
Unrepresented (Second Defendant)

File Number(s): 2016/293049

Judgment

The First and Third Defendants by an Amended Notice of Motion filed 4 May 2017 seek orders that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), alternatively that the Amended Statement of Claim filed on 18 April 2017 be struck out pursuant to r 14.28, and in any event seek an order that two Notices to Produce issued to the First and Third Defendants dated 30 March 2017 and 6 April 2017 be set aside.
These proceedings commenced on 30 September 2016. The Plaintiff has at all times acted for himself. The original Statement of Claim filed 30 September 2016 sought two orders as follows:

(1) $130,000 worth of investment return for property 165 Fitzwilliam Road, Toongabbie NSW 2146 from the First and Second Defendant.

(2) $1,250,000 (subject to actual value) worth of investment return for property at 50 Rosedale Road,…

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 Qin v He

Details

AGLC: Qin v He [2017] NSWSC 978
Case: [2017] NSWSC 978
Decision Date: 21 July 2017

CaseChat Overview and Summary

The matter before the court involved the plaintiff, Qin, who was self-represented, and the defendants, He and others. The dispute centred around a loan agreement between the plaintiff and a borrower, who was an undischarged bankrupt. The plaintiff, along with another lender, had obtained a judgment against the borrower in the Local Court. The plaintiff sought an interest in two properties, which were said to have been purchased with the loan money. One property was jointly owned by the borrower and another defendant, while the other was owned by two defendants, but not the borrower. The plaintiff's claim was based on equitable tracing.

The court needed to determine whether the statement of claim pleaded any cause of action and whether the proceedings were frivolous and vexatious. Additionally, the court had to assess whether the pleaded claim was manifestly hopeless and whether the plaintiff should be granted a further opportunity to plead. The plaintiff's claim was complicated by the inclusion of irrelevant material and evidence, making it difficult to discern the cause of action. The court also considered whether the pleading was embarrassing and if it warranted a further opportunity to amend the pleadings.

The court found that the pleaded claim was manifestly hopeless because the plaintiff had no basis for equitable tracing. The plaintiff's claim was based on the loan agreement and the subsequent judgment against the borrower, but the other lender was not a party to the proceedings. The court held that the claim was frivolous and vexatious, and there was no basis for equitable tracing. Consequently, the court made a summary dismissal order in favour of the defendants.

Orders