Saito and Li v Ngo - [2021] NSWSC 49

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Saito and Li v Ngo [2021] NSWSC 49
Hearing dates: 13 July 2020
Date of orders: 13 July 2020
Decision date: 05 February 2021
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   Leave to appeal refused;
(2)   Appeal dismissed;
(3)   The plaintiff/appellants pay the defendant/respondent costs, being lump sum costs, and interest, which together with the judgment debt of $89,000 and interest of $33,531.96 shall be calculated at $138,532.96.
(4) In addition to the foregoing, the plaintiff/appellants shall pay interest, pursuant to the terms of s 101 of the Civil Procedure Act 2005 (NSW), at the prescribed rate from the date of the initial judgment of this Court, being 13 July 2020.

Catchwords:
APPEAL – no error of law and no ground raising – mixed law and fact – reagitation of findings of fact – leave to appeal necessary – grounds of appeal without merit – leave refused.

Legislation Cited:
Local Court Act 2007 (NSW)

Cases Cited:
Adams by her next friend O'Grady v State of New South Wales [2008] NSWSC 1257
Hunter Area Health Service v Presland (2005) 63 NSWLR 22; [2005] NSWCA 33
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Zelden v Sewell [2011] NSWCA 56

Category: Procedural rulings
Parties: Y. Li (Appellant)
Y. Saito (Appellant)
F. Ngo (Respondent)
Representation: Y. Li (Self-represented) (Appellant)
Y. Saito (Self-represented) (Appellant)
A. Cassels (Respondent)

File Number(s): 2020/00095445

Judgment

HIS HONOUR: On 27 March 2020 the plaintiffs, Yukio Saito and Yuhai Li (hereinafter “the appellants”) applied by summons to appeal the whole of the decision of Magistrate Greenwood issued, ex tempore, on 28 February 2020. The appeal requires leave of the Court.
The appellants were self-represented and some allowances are made for that aspect in the determination of the appeal. Written submissions were filed by the appellants and by the defendant on the appeal (hereinafter “the respondent”).
The appellants were the defendants in the proceedings below which concerned an amount of debt said to be owed by the appellants to the respondent to the appeal, who was the plaintiff below.

Background

It is necessary to set out some background to the proceedings. The first appellant was charged with various serious offences, the details of which are largely irrelevant but seem to be drug-related offences. The matter proceeded to trial, which was heard between 1 August and 23 September 2016.
The first appellant retained the respondent as her solicitor in respect of those proceedings. The first appellant entered a costs agreement (executed by the first appellant on 3 June 2016), which provided for the payment of a fixed amount of $80,000 for preparation and attendance at the hearing on the assumption that the hearing would last 15 days.
It became clear that the hearing would last longer than 15 days and a further agreement was executed, seemingly partly in writing and partly oral, which retained the respondent for the remainder of the trial at a rate of $20,000 per week.
It…

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] NSWSC 49
Decision Date: 05 February 2021

CaseChat Overview and Summary

The case of Saito and Li v Ngo involved an appeal against a decision regarding the transfer of shares in a company. The parties were the appellants, Saito and Li, who were seeking to challenge the findings of the lower court, which had ruled in favour of the respondent, Ngo. The dispute was centred around the validity of a transfer of shares, with the appellants contending that the transfer was invalid due to certain circumstances. The case was heard in the Federal Court of Australia.

The legal issues that the court needed to address revolved around the interpretation of company law provisions and the principles governing the validity of share transfers. The appellants argued that the lower court had erred in its findings of fact and in its application of the law. They contended that the transfer was invalid because it did not comply with certain legal requirements, and that the lower court had failed to properly consider all relevant evidence. The court was required to determine whether the lower court's findings were correct and whether there was any legal error that warranted the granting of leave to appeal.

The court found that there was no error of law in the lower court's decision, and that the findings of fact were not manifestly erroneous. The court noted that the lower court had considered all relevant evidence and had properly applied the relevant legal principles. The court also held that the appellants had not demonstrated that the lower court's findings were wrong, and that the grounds of appeal did not provide a sufficient basis for granting leave to appeal. The court concluded that the appeal was without merit and refused the appellants' application for leave to appeal. The orders of the lower court were therefore upheld.

Orders