Shun Sheng Pty Ltd v Lei (No 2) - [2024] NSWCA 105

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shun Sheng Pty Ltd v Lei (No 2) [2024] NSWCA 105
Hearing dates: 29 April 2024
Decision date: 09 May 2024
Before: Leeming JA at [1];
Payne JA at [83];
Griffiths AJA at [84]
Decision:
1. Grant leave to appeal.
2. Direct the appellants to file a notice of appeal in the form of the draft notice of appeal within 7 days of today, and otherwise dispense with the rules concerning service.
3. Appeal dismissed.
4. Appellants to pay the respondents’ costs.

Catchwords:
APPEAL – appeal as of right or by leave – where primary judge made findings as to termination of partnership but left many issues unresolved – appeal interlocutory and required leave
PARTNERSHIP – primary judge rejected plaintiffs’ claim that partnership terminated on 30 June 2019 – primary judge disbelieved all witnesses – whether challenges to factual findings made out

Legislation Cited:
Supreme Court Act 1970 (NSW), s 101

Cases Cited:
A [a pseudonym] v E Co [a pseudonym] [2018] NSWCA 188
Cassaniti v Katavic (No 2) [2023] NSWCA 107
Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; 54 ALR 767
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Shun Sheng Pty Ltd v Lei [2023] NSWSC 1176
Watson v Foxman (1995) 49 NSWLR 315
Wendy Wei v Holroyd City Council [2007] NSWLEC 163

Category: Principal judgment
Parties: Shun Sheng Pty Ltd (First Applicant)
Sunshine Island (Aust) Pty Ltd (Second Applicant)
Xue Feng Wei (Third Applicant)
Jun Lei (First Respondent)
Theo Kitsos (Second Respondent)
Representation:
Counsel:
D McGovern SC and D Allen (Applicants)
M White SC and B Adam (Respondents)
Solicitors:
Du and Associates Lawyers (Applicants)
Lloyd & Lloyd Solicitors (Respondents)

File Number(s): 2023/339742
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity – Expedition List

Citation:

[2023] NSWSC 1176

Date of Decision:

29 September 2023

Before:

Parker J

File Number(s):

2021/365823

JUDGMENT

LEEMING JA: Ms Xue Feng Wei and two companies associated with her, Shun Sheng Pty Ltd and Sunshine Island (Aust) Pty Ltd, seek leave to appeal from a judgment ordering inter alia that a partnership be wound up and that a receiver be appointed on the basis that the partnership was dissolved on 18 October 2021: Shun Sheng Pty Ltd v Lei [2023] NSWSC 1176. The respondents are Ms Jun Lei and her husband Mr Theo Kitsos. Ms Wei is sometimes known as “Wendy” or “Nancy”, and Ms Lei is sometimes known as “Jun” or “Coco”. Mr Kitsos is known as Theo or occasionally “Leo”.
The partnership business was a brothel at premises in Guildford in Western Sydney, seemingly lawfully conducted pursuant to development consent issued by the Land and Environment Court on 29 March 2007: Wendy Wei v Holroyd City Council [2007] NSWLEC 163 (Hussey C). The structure of the business may have changed from time to time. 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: [2024] NSWCA 105
Decision Date: 09 May 2024

CaseChat Overview and Summary

Shun Sheng Pty Ltd (the appellants) appealed to the Court of Appeal of New South Wales against interlocutory findings made by a primary judge concerning the termination of a partnership. The primary judge had made findings regarding the termination of the partnership but left numerous other issues unresolved, leading to the appeal being considered interlocutory and requiring leave.

The central legal issues before the Court of Appeal were whether the primary judge erred in rejecting the appellants' claim that the partnership terminated on 30 June 2019 and whether the challenges to the primary judge's factual findings were made out. The primary judge had disbelieved all witnesses who gave evidence.

The Court of Appeal granted leave to appeal, acknowledging the interlocutory nature of the proceedings. However, after considering the arguments, the Court dismissed the appeal. The appellants were ordered to pay the respondents' costs.

Orders

Orders of the court

1. Grant leave to appeal.

2. Direct the appellants to file a notice of appeal in the form of the draft notice of appeal within 7 days of today, and otherwise dispense with the rules concerning service.

3. Appeal dismissed.

4. Appellants to pay the respondents’ 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:	Shun Sheng Pty Ltd v Lei (No 2) [2024] NSWCA 105
Hearing dates:	29 April 2024
Decision date:	09 May 2024
Before:	Leeming JA at [1]; Payne JA at [83]; Griffiths AJA at [84]
Decision:	1. Grant leave to appeal. 2. Direct the appellants to file a notice of appeal in the form of the draft notice of appeal within 7 days of today, and otherwise dispense with the rules concerning service. 3. Appeal dismissed. 4. Appellants to pay the respondents’ costs.
Catchwords:	APPEAL – appeal as of right or by leave – where primary judge made findings as to termination of partnership but left many issues unresolved – appeal interlocutory and required leave PARTNERSHIP – primary judge rejected plaintiffs’ claim that partnership terminated on 30 June 2019 – primary judge disbelieved all witnesses – whether challenges to factual findings made out
Legislation Cited:	Supreme Court Act 1970 (NSW), s 101
Cases Cited:	A [a pseudonym] v E Co [a pseudonym] [2018] NSWCA 188 Cassaniti v Katavic (No 2) [2023] NSWCA 107 Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; 54 ALR 767 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Shun Sheng Pty Ltd v Lei [2023] NSWSC 1176 Watson v Foxman (1995) 49 NSWLR 315 Wendy Wei v Holroyd City Council [2007] NSWLEC 163
Category:	Principal judgment
Parties:	Shun Sheng Pty Ltd (First Applicant) Sunshine Island (Aust) Pty Ltd (Second Applicant) Xue Feng Wei (Third Applicant) Jun Lei (First Respondent) Theo Kitsos (Second Respondent)
Representation:	Counsel: D McGovern SC and D Allen (Applicants) M White SC and B Adam (Respondents) Solicitors: Du and Associates Lawyers (Applicants) Lloyd & Lloyd Solicitors (Respondents)
File Number(s):	2023/339742
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity – Expedition List Citation: [2023] NSWSC 1176 Date of Decision: 29 September 2023 Before: Parker J File Number(s): 2021/365823