Sum Yuen v Justin Yat-kun Chan - [2018] NSWDC 274

District Court

New South Wales

Medium Neutral Citation: Sum Yuen v Justin Yat-kun Chan [2018] NSWDC 274
Hearing dates: 25 June 2018 – 27 June 2018
Decision date: 27 September 2018
Jurisdiction: Civil
Before: Mahony SC DCJ
Decision:
Verdict for the defendant. For Orders see [138]

Catchwords: Defamation; Words spoken at meetings held by incorporated association; defence of qualified privilege upheld
Legislation Cited: Defamation Act 2005
Cases Cited: Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158
Enders v Erbas & Associates Pty Limited [2014] NSWCA 70
Gross v Western [2007] 69 NSWLR 279
Guise v Kouvelis (1946) SR (NSW) 419
Horrocks v Lowe [1975] AC 135
Lindholdt v Hyer (2008) 251 ALR 514
Radio 2UE Sydney Pty Limited v Chesterton (2009) 238 CLR 460
Roberts v Bass [2002] 212 CLR 1
Texts Cited: Gatley on Liable and Slander 12th Ed
Category: Principal judgment
Parties: Sum Yuen (Plaintiff)
Justin Yat-kun Chan (Defendant)
Representation:
Counsel:
R Potter with H Elachkar (Plaintiff)
R Rasmussen (Defendant)
Solicitors:
Rydge Evans Lawyers
Pancific Legal

File Number(s): 16/45042
Publication restriction: Nil

Judgment

The plaintiff’s claim

By a Further Amended Statement of Claim (“FASOC”) filed on 13 October 2016, the plaintiff claims damages, including aggravated damages, interest and costs for defamation which he said occurred when the defendant published defamatory statements of the plaintiff at two meetings of an incorporated association known as Goon Yee Tong (“GYT”) on 15 September 2015 and on 13 December 2015. GYT was formed well over a century ago as an unincorporated association for the purpose of providing welfare and assistance to individuals and their families originally from the Chinese county of Dongguan, within the province of Guangdong.

Background to the dispute

In 1990 GYT was incorporated as an incorporated association, pursuant to the Incorporated Associations Act 1984.
GYT had a sister society known as Luen Fook Tong (“LFT”), which had been formed for a similar purpose to assist individuals and families coming from a neighbouring county in China.
In 1917, GYT and LFT agreed to buy vacant land in Dixon Street, Sydney, upon which they built two properties. The title to those properties was held by four trustees from time to time, two from each society. Two three-storey buildings were subsequently erected on the land which still exists today at 50 and 52 Dixon Street, Sydney. The plaintiff contends that they have a value somewhere in the region of $7.5 million.
In 1995, the title of those two properties was transferred to a third incorporated association called Luen Yee Tong (“LYT”). It was incorporated on 1 February 1995, following which, it was managed by a committee of 14 people comprising seven representatives from each of GYT and LFT.
In January 2008, an annual general meeting of GYT was held, in which two resolutions were adopted by the members. The first was for a new constitution. The second resolution was to “legally separate the ownership of properties at 50 and 52 Dixon Street”. Problems had arisen with the management…

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: [2018] NSWDC 274
Decision Date: 27 September 2018

CaseChat Overview and Summary

The case of Sum Yuen versus Justin Yat-kun Chan was heard in the Federal Circuit Court of Australia, where the plaintiff, Sum Yuen, sought damages for defamation against the defendant, Justin Yat-kun Chan. The dispute arose from comments made by Chan at meetings held by an incorporated association. The central contention was whether Chan's remarks were defamatory and if they were made with the necessary justification to warrant a qualified privilege.

The court was tasked with determining whether the words spoken by Chan were defamatory, which involved assessing the ordinary meaning of the words and their impact on Yuen's reputation. Additionally, the court had to evaluate whether Chan's statements were protected by the defence of qualified privilege, considering the circumstances under which the statements were made and the relationship between the parties involved. The court had to decide if the occasion demanded a duty to make the statements and if the statements were made honestly, without malice, and within the bounds of a legitimate interest or duty.

The Federal Circuit Court found that the words spoken by Chan were indeed defamatory, but upheld the defence of qualified privilege. The court reasoned that the context of the meetings, held for the purpose of governance and decision-making within the association, provided a setting where such communications were necessary. The judge concluded that Chan had a legitimate interest in communicating the statements, and they were made without malice, thus satisfying the requirements for qualified privilege. Consequently, the court ruled in favour of Chan, dismissing Yuen's claim for defamation.

Orders

Orders of the court

Verdict for the defendant. For Orders see [138]

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:	Sum Yuen v Justin Yat-kun Chan [2018] NSWDC 274
Hearing dates:	25 June 2018 – 27 June 2018
Decision date:	27 September 2018
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict for the defendant. For Orders see [138]
Catchwords:	Defamation; Words spoken at meetings held by incorporated association; defence of qualified privilege upheld
Legislation Cited:	Defamation Act 2005
Cases Cited:	Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 Enders v Erbas & Associates Pty Limited [2014] NSWCA 70 Gross v Western [2007] 69 NSWLR 279 Guise v Kouvelis (1946) SR (NSW) 419 Horrocks v Lowe [1975] AC 135 Lindholdt v Hyer (2008) 251 ALR 514 Radio 2UE Sydney Pty Limited v Chesterton (2009) 238 CLR 460 Roberts v Bass [2002] 212 CLR 1
Texts Cited:	Gatley on Liable and Slander 12th Ed
Category:	Principal judgment
Parties:	Sum Yuen (Plaintiff) Justin Yat-kun Chan (Defendant)
Representation:	Counsel: R Potter with H Elachkar (Plaintiff) R Rasmussen (Defendant) Solicitors: Rydge Evans Lawyers Pancific Legal
File Number(s):	16/45042
Publication restriction:	Nil