Shumin Li v Han Li

Case [2022] NSWDC 70


District Court


New South Wales

Medium Neutral Citation: Shumin Li v Han Li [2022] NSWDC 70
Hearing dates: 2, 3 March 2022
Date of orders: 21 March 2022
Decision date: 21 March 2022
Jurisdiction:Civil
Before: Weber SC DCJ
Decision:

In proceedings number 2021/202510

(1) That the proceedings be dismissed.

In proceedings number 2022/61979

(1) That there be judgment and verdict for the plaintiff against the defendant in the sum of $315,005.26.

(2) That there be interest thereon from 21 November 2019 at the rates pertaining from time to time pursuant to section 100 of the Civil Procedure Act 2005 (NSW).

(3) That any party wishing to be heard on the issue of costs notify my associate of that fact on or before noon on 4pm on 25 March 2022 (“Notification”)

(4) That in the event of Notification, the notifying party shall file and serve any evidence and submissions on the issue of costs on or before 4:00pm on 1 April 2022.

(5) That the non-notifying party file and serve any evidence and submissions which it wishes to make on the issue of costs on or before 4:00pm on 8 April 2022.

(6) That the notifying party file and serve any submissions in reply on or before 4:00pm 14 April 2022

(7) That the filing of the documents referred to in orders (4), (5), and (6) be effected by way of email transmission to my associate.

(8) That any issue as to costs be decided on the papers.

(9) That in the absence of Notification, the Court will order that the defendant pay the plaintiff’s costs.

Catchwords:

CIVIL PROCEDURE – Discontinuance of proceedings – Leave of court – Commencement of fresh proceedings for same relief - initial proceedings discontinued, and new proceedings commenced by consent

LIMITATION OF ACTIONS – Debt – whether a notice of demand was necessary to commence the limitation period

LIMITATION OF ACTIONS – Debt – confirmation – where confirmation of a cause of action is constituted by payment of interest

CONTRACTS – Implied terms – Terms implied in fact – whether interest was repayable on the loans

Legislation Cited:

Limitation Act 1969

Civil Procedure Act 2005 (NSW).

Cases Cited:

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Chidiac v Maatouk [2010] NSWSC 386

Estate of Tornya (Deceased) [2020] NSWSC 1230

Fischer v Nemeske Pty Ltd [2014] NSWSC 203

Hawkins v Clayton (1988) 164 CLR 539

Young v Queensland Trustee Ltd (1956) 99 CLR 560

Hawkins v Clayton (1988) 164 CLR 539

Category:Principal judgment
Parties: Shumin Li (Plaintiff)
Han Li (Defendant)
Representation:

Counsel:
Mr D Price (Plaintiff)
Mr L Ellison SC (Defendant)

Solicitors:
Cedric Spencer Lawyers (Plaintiff)
Broaden Legal (Defendant)
File Number(s): 2021/0202510
2022/0061979
Publication restriction: NA

Judgment

Introduction

  1. These proceedings concern loans between the plaintiff and Mr Nicholas Khor (“Mr Khor”). Mr Khor died on 11 October 2019. He died intestate. On 17 December 2019 the defendant published a notice that she intended to apply for letters of administration of Mr Khor’s estate.

  2. These…

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Details
AGLC
Shumin Li v Han Li [2022] NSWDC 70
Case
[2022] NSWDC 70
Decision Date

CaseChat Overview and Summary

Shumin Li commenced proceedings against Han Li in the Supreme Court of New South Wales, seeking repayment of a debt. The proceedings were discontinued, and fresh proceedings were commenced by consent. Han Li sought to have the fresh proceedings dismissed on the basis that they were an abuse of process, and alternatively, that they were statute-barred. Shumin Li argued that the debt was not statute-barred as the limitation period had not expired and that interest payments constituted confirmation of the debt. The court was required to determine whether the fresh proceedings were an abuse of process, and if not, whether the debt was statute-barred and if interest was repayable on the loans.

The court found that the fresh proceedings were not an abuse of process, as they were commenced with the consent of both parties. The court also found that the limitation period had not expired, as the payment of interest constituted confirmation of the debt. The court held that interest was repayable on the loans, as it was an implied term in fact. The court ordered that the fresh proceedings be dismissed, and that there be judgment and verdict for the plaintiff against the defendant in the sum of $315,005.26, with interest from 21 November 2019. The court also made orders regarding the issue of costs.

Orders

Orders of the court

In proceedings number 2021/202510

(1) That the proceedings be dismissed.

In proceedings number 2022/61979

(1) That there be judgment and verdict for the plaintiff against the defendant in the sum of $315,005.26.

(2) That there be interest thereon from 21 November 2019 at the rates pertaining from time to time pursuant to section 100 of the Civil Procedure Act 2005 (NSW).

(3) That any party wishing to be heard on the issue of costs notify my associate of that fact on or before noon on 4pm on 25 March 2022 (“Notification”)

(4) That in the event of Notification, the notifying party shall file and serve any evidence and submissions on the issue of costs on or before 4:00pm on 1 April 2022.

(5) That the non-notifying party file and serve any evidence and submissions which it wishes to make on the issue of costs on or before 4:00pm on 8 April 2022.

(6) That the notifying party file and serve any submissions in reply on or before 4:00pm 14 April 2022

(7) That the filing of the documents referred to in orders (4), (5), and (6) be effected by way of email transmission to my associate.

(8) That any issue as to costs be decided on the papers.

(9) That in the absence of Notification, the Court will order that the defendant pay the plaintiff’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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