Rysze International Pty Ltd v Guan - [2021] VSC 706

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2021 02229

RYSZE INTERNATIONAL PTY LTD (ACN 057 712 473)	Plaintiff
v
HUA GUAN	First Defendant
and
WEN LIU	Second Defendant

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JUDGE:	ATTIWILL J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2021
DATE OF JUDGMENT:	29 October 2021
CASE MAY BE CITED AS:	Rysze International Pty Ltd v Guan & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 706

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PRACTICE AND PROCEDURE – Application for a temporary stay of the proceeding – Applicable principles – Material effect of proceeding at the Victorian Civil and Administrative Tribunal on the proceeding in this Court – Balancing the advantages and disadvantages to the parties of a temporary stay – Public interest – Application for temporary stay granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Alan Herskope	Kalus Kenny Intelex
For the First Defendant	Christopher Lum	J. Lei & Co
For the Second Defendant	Andrew Silver	Waterson Legal

HIS HONOUR:

INTRODUCTION

The second defendant (‘Ms Liu’) applied by summons filed 15 September 2021 for the following orders:

(a) the proceeding be temporarily stayed pending resolution or determination of proceeding BP1436/2021 in the Victorian Civil and Administrative Tribunal (‘VCAT’) (‘VCAT proceeding’); and

(b) the plaintiff (‘Rysze’) pay the costs of the application.

Rysze opposed Ms Liu’s application. The first defendant (‘Mr Guan’) supported it.

For reasons I will now give, I will order that this proceeding be stayed until the resolution or determination of Rysze’s claims against Mr Guan in the VCAT proceeding or until further order of this Court.

PARTIES’ MATERIALS

Ms Liu relied upon submissions filed 6 October 2021 and her affidavit affirmed 15 September 2021. Mr Guan relied upon submissions filed 7 October 2021. Rysze relied upon submissions filed 12 October 2021 and affidavits of Rita Zhang, sole director of Rysze, sworn 24 June 2021 and of Michael Kenny, of Rysze’s solicitors, sworn 21 September 2021. Counsel for the parties made oral submissions at the hearing of the application.

BACKGROUND
The Lease

By a written lease dated 19 February 2016, Ly & Lay Holdings Pty Ltd, as landlord, leased the land known as Lot T6, 1 Queens Road, Melbourne (‘Melbourne premises’) to Empire on Queens Pty Ltd (‘the Lease’).[1] Clause 7.2 of the Lease provided:[2]

Termination by the landlord ends this lease, but the landlord retains the right to sue the tenant for unpaid money or for damages (including damages for the loss of the benefits that the landlord would have received if the lease had continued for the full term) for breaches of its obligations under this lease.

[1]Exhibit ‘RZ-1’ to the Zhang affidavit, pgs 15–41.

[2]Ibid pg 32.

The permitted use of the Melbourne premises under the Lease was a café and restaurant.[3]
[3]Ibid pg 19 (item 15).

On 16 August 2016, Rysze became the sole registered proprietor of the Melbourne premises.[4] As a result, Rysze became entitled to every covenant or provision of the Lease in favour of the landlord.[5]
[4]Zhang affidavit,…

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.

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Details

Case: [2021] VSC 706
Decision Date: 29 October 2021

CaseChat Overview and Summary

Rysze International Pty Ltd applied to the Supreme Court for a temporary stay of the proceeding in favour of a proceeding at the Victorian Civil and Administrative Tribunal (VCAT). The dispute arose from a contractual relationship between the parties, with the plaintiff seeking damages for breach of contract. The Court was required to determine whether it should grant a temporary stay in favour of the VCAT proceeding, considering the material effect of the VCAT proceeding on the Court proceeding, the advantages and disadvantages to the parties of a temporary stay, and the public interest.

In assessing the material effect of the VCAT proceeding on the Court proceeding, the Court found that the issues raised in the VCAT proceeding were significantly different from those in the Court proceeding, with the VCAT proceeding focusing on a different contractual relationship between the parties. The Court also considered the advantages and disadvantages to the parties of a temporary stay, finding that the plaintiff would suffer little prejudice from a temporary stay, while the defendant would benefit from the opportunity to resolve the dispute in a more efficient and cost-effective forum. The Court further found that the public interest favoured a temporary stay, as it would promote the efficient use of judicial resources.

Based on these considerations, the Court granted the application for a temporary stay of the proceeding in favour of the VCAT proceeding. The Court emphasised that this was a temporary stay only, and that the proceeding in the Court would resume if the VCAT proceeding did not result in a final determination of the issues between the parties. The Court also noted that the parties were free to apply to the Court for an extension of the temporary stay if necessary.

Orders