Roupell v Zhang - [2020] NSWSC 1362

Supreme Court

New South Wales

Medium Neutral Citation: Roupell v Zhang [2020] NSWSC 1362
Hearing dates: 6 October 2020
Date of orders: 6 October 2020
Decision date: 06 October 2020
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
1. The plaintiff’s motion is dismissed and they must bear Mr Zhang’s costs, as agreed or assessed.

Catchwords:
CIVIL PROCEDURE – Freezing orders – Where plaintiff engaged defendant to install air conditioner – Where fire ignited and destroyed plaintiff’s home –Whether risk of dissipation established – Where prospect of impending insolvency not alone a reason to grant freezing order – Where no evidence that defendant would take steps to make himself proof against an order to pay judgment against him – Whether plaintiff demonstrated defendant’s lack of probity - Risk of dissipation of assets not established

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 58
Uniform Civil Procedure Rules 25.11, 25.12

Cases Cited:
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46
Beecham Group Ltd v Bristol LaboratoriesPty Ltd (1968) 118 CLR 618 at 622; [1968] HCA 1
Frigo v Culhaci [1998] NSWCA 88
Hortico (Australia) Pty Ltd v Energy Equipment Co (Australia) Pty Ltd (1985) 1 NSWLR 545
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Ross v Internet Wines Pty Ltd (2004) 60 NSWLR 436; [2004] NSWCA 195
Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279

Category: Principal judgment
Parties: Saroj Amy Roupell (First Plaintiff)
Darko Roupell (Second Plaintiff)
Zhi Lian Zhang (Defendant)
Insurance Australia Ltd T/as CGU Insurance (Cross Defendant)
Representation: Counsel:
C Hickey (Plaintiffs)
J Lee (Defendant)
Solicitors:
Boyd House & Partners (Plaintiffs)
Veracity Legal (Defendants)
McCabe Curwood (Cross Defendants)

File Number(s): 2020/219819

Judgment

Mr and Mrs Roupell commenced proceedings in July 2020 claiming that in October 2019 they engaged Mr Zhang to install an air conditioner at their home. During the work undertaken on 19 October a fire broke out, destroying the house. They now seek orders restraining Mr Zhang’s assets to the value of $1.2 million and requiring him to provide an affidavit disclosing his assets and liabilities: Uniform Civil Procedure Rules 25.11 and 25.12.
The orders are opposed.
The plaintiffs contend that they contracted Mr Zhang to undertake the work which neither he nor the workers were licensed to undertake. At the time Mr Zhang held an electrician’s license but only applied to the Australian Refrigeration Council for a refrigeration license on 21 October 2019, which was not issued until 12 November 2019.
It is Mr Zhang’s case that from 24 December 2010 he was the holder of the business name Sam Z Electrical & Air and carried on the business of providing electrical and air conditioning services, but from 26 July 2017 that business was conducted by Sam Z Electrical & Air Pty Ltd, of which he was sole director. It was the company, not he, which contracted with Mr and Mrs Roupell and employed the workers who burnt down the property and had business…

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 Roupell v Zhang

Details

AGLC: Roupell v Zhang [2020] NSWSC 1362
Case: [2020] NSWSC 1362
Decision Date: 06 October 2020

CaseChat Overview and Summary

The plaintiff in Roupell v Zhang sought a freezing order against the defendant, who had been engaged to install an air conditioner in the plaintiff's home. A fire caused by the installation destroyed the home, leading to a dispute over liability and compensation. The case was heard in the Federal Circuit Court of Australia, where the plaintiff sought to freeze the defendant's assets to secure any future judgment.

The primary legal issue was whether the plaintiff had established a risk of dissipation of the defendant's assets, which is a necessary condition for granting a freezing order. The court considered whether the prospect of the defendant's impending insolvency alone was sufficient to justify a freezing order. Additionally, the court examined whether the plaintiff had demonstrated the defendant's lack of probity or provided evidence that the defendant would take steps to make himself proof against a judgment debt.

The court determined that the plaintiff had not demonstrated a sufficient risk of dissipation of the defendant's assets. The court found that the prospect of impending insolvency was not, by itself, a sufficient reason to grant a freezing order. Furthermore, there was no evidence that the defendant would take steps to make himself proof against a judgment debt, nor had the plaintiff demonstrated the defendant's lack of probity. Consequently, the court dismissed the application for a freezing order. The court's decision highlighted the need for the plaintiff to establish a clear risk of dissipation and other grounds for a freezing order.

Orders