Shumin Li v Han Li - [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

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.
These…

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 Shumin Li v Han Li

Details

AGLC: Shumin Li v Han Li [2022] NSWDC 70
Case: [2022] NSWDC 70
Decision Date: 21 March 2022

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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