Tay v Chong - [2024] FCA 1327

FEDERAL COURT OF AUSTRALIA
Tay v Chong [2024] FCA 1327

File number: WAD 77 of 2024

Judgment of: COLVIN J

Date of judgment: 18 November 2024

Catchwords: PRACTICE AND PROCEDURE - application to strike out paragraphs of defence - reasons as provided in related judgment, Yap v Chong [2024] FCA 1326 - leave granted to replead

Cases cited: Yap v Chong [2024] FCA 1326

Division: General Division

Registry: Western Australia

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Number of paragraphs: 9

Date of hearing: 6 November 2024

Counsel for the Applicant: Mr AC Willinge with Mr BJ Willesee

Solicitor for the Applicant: Gandhi and Shaw

Counsel for the Respondents: Mr JP Cook

Solicitor for the Respondents: Mendelawitz Morton

ORDERS

WAD 77 of 2024

BETWEEN:
SOON KIM TAY

Applicant

AND:
JOHN TSE-LIANG CHONG

First Respondent

AUSTRAL MIGRATION CONSULTANCY PTY LTD (ABN 15 601 686 042)

Second Respondent

AUSTRAL MIGRATION CONSULTANCY SDN BHD (MALAYSIAN COMPANY NUMBER 201201032377)

Third Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

6 NOVEMBER 2024

THE COURT ORDERS THAT:
1.Pursuant to rules 16.21(c) and (d) of the Federal Court Rules 2011 (Cth), paragraphs 8, 12, 17, 18, 19, 20, 25, 26, 28 and 29 of the defence dated 12 July 2024 be struck out.
2.The respondents have leave to replead a defence.
3.The respondents file and serve an amended defence on or before 27 November 2024.
4.The matter be listed for a case management hearing on 19 December 2024 at 10.45 am AWST.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

WAD 77 of 2024

BETWEEN:
SOON KIM TAY

Applicant

AND:
JOHN TSE-LIANG CHONG

First Respondent

AUSTRAL MIGRATION CONSULTANCY PTY LTD (ABN 15 601 686 042)

Second Respondent

AUSTRAL MIGRATION CONSULTANCY SDN BHD (MALAYSIAN COMPANY NUMBER 201201032377)

Third Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

18 NOVEMBER 2024

THE COURT ORDERS THAT:
1.The respondents do pay the costs of and incidental to the interlocutory application dated 3 October 2024 forthwith, such costs to be taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
COLVIN J:

In 2015 and 2016, Ms Soon Kim Tay had dealings with Mr John Tse-Liang Chong about obtaining an Australian business visa. It appears that those dealings led Ms Tay to make an investment of $1.5 million in Morena Perro Pty Ltd by depositing that amount into the bank account of Morena in 2016.
Ms Tay says that she was induced to make the investment by representations made to her by Mr Chong. Those representations were said to arise from what she was told by Mr Chong at a meeting in July 2015, by what was stated in an email dated 4 April 2016 (April Email) and by what was said in a telephone conversation with Mr Chong in or around May 2016. The alleged representations are (a) that the…

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 Tay v Chong

Details

AGLC: Tay v Chong [2024] FCA 1327
Case: [2024] FCA 1327
Decision Date: 18 November 2024

CaseChat Overview and Summary

The case of Tay v Chong involved the applicant, Tay, seeking to strike out certain paragraphs of the respondent, Chong's, defence. This matter was heard in the Federal Court of Australia. The primary dispute centred on whether specific paragraphs of Chong's defence should be struck out for being irrelevant or disclosing no reasonable cause of action. This application was made in light of the reasoning provided in a related judgment, Yap v Chong.

The legal issues before the court were whether the defence contained in the paragraphs in question was irrelevant or disclosed no reasonable cause of action, thereby justifying their removal. The court considered the precedent set in Yap v Chong, which provided a basis for the current application. The primary focus was on whether the application met the threshold for relevance and the disclosure of a reasonable cause of action, as per the Federal Court's practice and procedure.

The court found that the reasons provided in the related judgment applied sufficiently to the current matter. It determined that the paragraphs of the defence in dispute were indeed irrelevant and did not disclose a reasonable cause of action. Consequently, the court granted leave for Chong to replead those paragraphs, as they failed to meet the necessary legal standards. The court ordered that Chong pay the costs of the interlocutory application, which were to be taxed if not agreed upon. This decision reinforced the importance of adhering to the principles of relevance and reasonable cause of action in pleadings before the Federal Court.

Orders

Orders of the court

1. The respondents do pay the costs of and incidental to the interlocutory application dated 3 October 2024 forthwith, such costs to be taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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File number:	WAD 77 of 2024
Judgment of:	COLVIN J
Date of judgment:	18 November 2024
Catchwords:	PRACTICE AND PROCEDURE - application to strike out paragraphs of defence - reasons as provided in related judgment, Yap v Chong [2024] FCA 1326 - leave granted to replead
Cases cited:	Yap v Chong [2024] FCA 1326
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	9
Date of hearing:	6 November 2024
Counsel for the Applicant:	Mr AC Willinge with Mr BJ Willesee
Solicitor for the Applicant:	Gandhi and Shaw
Counsel for the Respondents:	Mr JP Cook
Solicitor for the Respondents:	Mendelawitz Morton

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	6 NOVEMBER 2024