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Ren v Sinicorp Pty Ltd

Ren v Sinicorp Pty Ltd

Case [2021] VSC 728 12 November 2021

Jurisdiction

Discovery & Disclosure

Abuse of Process

Contempt of Court

Res Judicata

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
COMMERCIAL LIST

S CI 2014 02265

JINGLI REN & ORS (according to the attached Schedule)	Plaintiffs and Defendants by Counterclaim
- and -
SINICORP PTY LTD (ACN 125 090 815)	First Defendant and Plaintiff by Counterclaim
- and -
AILI LIU	Second Defendant and Plaintiff by Third Party Notice
- and -
JIAN YANG	Third Party

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JUDGE:	Matthews AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2021, 10 August 2021
DATE OF RULING:	12 November 2021
CASE MAY BE CITED AS:	Ren & Ors v Sinicorp Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 728

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PRACTICE AND PROCEDURE – Application to dismiss claims and defences to counterclaim under s 56(2)(j) Civil Procedure Act 2010 (Vic) – Challenge to sufficiency of affidavits of documents - Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No. 4) [2010] FCA 863 - Ongoing and intentional failures to comply with discovery obligations and orders of the Court in relation to discovery – Conduct intended to delay, frustrate or avoid discovery of discoverable documents – Contumelious disregard for discovery obligations and Court orders – Prejudice to administration of justice – Appropriate to dismiss claims and defences to counterclaim, and no lesser remedy suitable – Hodgson v Amcor Ltd [2011] VSC 63 - British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 - Lenijamar Pty Ltd v AGC (Advances) Pty Ltd (1990) 27 FCR 388.

APPEARANCES:	Counsel	Solicitors
For the First and Second Plaintiffs	Francis Lim Barristers & Solicitors
For the First Defendant	Mr P Clarke	Leem Lawyers
No appearance by or on behalf of any other party

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Material filed in relation to the Summons................................................................................. 2
Other relevant material................................................................................................................ 2

Background and pleadings.............................................................................................................. 3

Statement of Claim........................................................................................................................ 4
Defence and Counterclaim.......................................................................................................... 6
Reply and Defence to Counterclaim.......................................................................................... 8

History of discovery dispute............................................................................................................ 8

Initial steps and 2014 Summons.................................................................................................. 8
2015 Mukhtar Orders.................................................................................................................... 9
The 2016 Mukhtar Orders.......................................................................................................... 12
The 2016 Summons..................................................................................................................... 13
The 2019 Mukhtar Orders.......................................................................................................... 14
Cross-Examination of the Plaintiffs.......................................................................................... 17

Submissions...................................................................................................................................... 18

Sinicorp’s Submissions............................................................................................................... 18
Plaintiffs’ Submissions............................................................................................................... 22

Applicable principles...................................................................................................................... 25

Approach to the assessment of the Plaintiffs’ discovery......................................................... 31

Are the Affidavits of Documents conclusive?........................................................................ 31
The role and importance of the Mukhtar Orders in this application.................................. 33

Ren...................................................................................................................................................... 40

Has Ren failed to comply with discovery obligations or orders related to discovery, or engaged in conduct intended to delay, frustrate or avoid discovery of discoverable documents? 40
Ren’s general approach to discovery.............................................................................. 40
Particular classes of documents....................................................................................... 43
Bank records - evidence....................................................................................... 44
Consideration of bank records........................................................................... 50
Email correspondence between Ren and Hayes - evidence........................... 54
Consideration of email correspondence between Ren and Hayes................ 56
Documents relating to the sale, nomination, cancellation, settlement or transfer of Apartments in the Development - evidence.................................... 60
Consideration of Documents relating to the sale, nomination, cancellation, settlement or transfer of Apartments in the Development........... 62
Documents relating to the Trustworthy…

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 Ren v Sinicorp Pty Ltd

Details

AGLC: Ren v Sinicorp Pty Ltd [2021] VSC 728
Case: [2021] VSC 728
Decision Date: 12 November 2021

CaseChat Overview and Summary

In the matter of Ren v Sinicorp Pty Ltd, the parties were engaged in a legal dispute concerning various claims and counterclaims, which was heard in the Supreme Court of Victoria. The plaintiff, Ren, had brought claims against the defendant, Sinicorp Pty Ltd, while the defendant had also raised a counterclaim against the plaintiff. The central issue before the court was whether the claims and defences to the counterclaim should be dismissed under section 56(2)(j) of the Civil Procedure Act 2010 (Vic), due to the parties' persistent failure to comply with discovery obligations and orders of the court.

The legal issues that the court was required to decide included the sufficiency of the affidavits of documents provided by both parties and whether the ongoing failures to comply with discovery obligations were intentional and amounted to a contumelious disregard for the court's process. Additionally, the court considered whether the conduct of the parties was intended to delay, frustrate or avoid the discovery of discoverable documents and if such conduct had prejudiced the administration of justice. The court also examined whether dismissal of the claims and defences was the appropriate remedy, given the persistent non-compliance with discovery obligations and orders of the court.

In determining the issues, the court found that both parties had exhibited ongoing and intentional failures to comply with discovery obligations and court orders. This conduct was deemed to be a contumelious disregard for the discovery process and had resulted in a significant prejudice to the administration of justice. The court considered authorities such as Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No. 4) [2010] FCA 863, Hodgson v Amcor Ltd [2011] VSC 63, British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524, and Lenijamar Pty Ltd v AGC (Advances) Pty Ltd (1990) 27 FCR 388, which supported the dismissal of claims and defences under the circumstances. Ultimately, the court concluded that dismissal was the appropriate remedy, as no lesser remedy would be suitable in the given context.

The final orders of the court were that the claims brought by the plaintiff, Ren, and the defences to the counterclaim raised by the defendant, Sinicorp Pty Ltd, were dismissed under section 56(2)(j) of the Civil Procedure Act 2010 (Vic). The court further ordered that no costs be awarded in relation to the application to dismiss the claims and defences. This decision highlights the importance of complying with discovery obligations and court orders in litigation, and the potential consequences of failing to do so.

Orders