Tiao v Lai - [2009] WASCA 169

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TIAO -v- LAI [2009] WASCA 169

CORAM: PULLIN JA

HEARD: 25 AUGUST 2009

DELIVERED : 25 AUGUST 2009

FILE NO/S: CACV 64 of 2009

BETWEEN: CHENG CHIH TIAO
HUI PING WANG
First Appellants
AUSTRALIAN CHINESE CONFUCIUS - MENCIUS SAINT TAO CENTRE INC
Second Appellant
AND
SHENG CHIN LAI
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JOHNSON J
Citation  :LAI -v- TIAO [No 2] [2009] WASC 22
File No  :CIV 1442 of 2005
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JOHNSON J
Citation  :LAI -v- TIAO [No 2] [2009] WASC 22 (S)
File No  :CIV 1442 of 2005

Catchwords:

Practice and procedure - Appeal - Application for third party to be joined as an appellant - Turns on own facts

Legislation:

Nil

Result:

Application granted

Category: B

Representation:

Counsel:

First Appellants             :     Mr B D Campbell
Second Appellant          :     Mr G D Crocket
Respondent:     Mr K G Robson
Proposed Appellant       :     Mr M C Hotchkin & Mr P B Dobson

Solicitors:

First Appellants             :     Mony de Kerloy
Second Appellant          :     G D Crocket & Co
Respondent:     Tan & Tan
Proposed Appellant       :     Hotchkin Hanly

Case(s) referred to in judgment(s):

Homestyle Pty Ltd v City of Belmont [1999] WASCA 59
Krishell v Nilant (2006) 32 WAR 540
Lai v Tiao [2006] WASC 232
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
State of Victoria v Sutton (1998) 195 CLR 291

PULLIN JA: This is an application by Level Holdings Pty Ltd for an order for leave to be joined as a party to the appeal. It was not a party to the proceedings which are under review. In those proceedings, the respondent was the plaintiff; the first appellants were the first defendants and the second appellant, the association, was the second defendant.
The statement of claim reveals the existence of a dispute within the association about who controlled it. One aspect of the claim was of concern to Level Holdings. In this regard, the statement of claim pleaded in effect that the first-named first appellant, Mr Tiao, purported to enter into a contract on behalf of the association with Level Holdings without authority.
It appears from other information provided to me that the contract involved Level Holdings carrying out development work which would lead to subdivisional approval and the creation of new lots and then, in consideration for Level Holdings carrying out this work, the association would ultimately transfer the title to five newly created lots to Level Holdings. The relief claimed is, inter alia, a permanent injunction restraining the first appellants (but not the association) from giving effect to or proceeding with the contract with Level Holdings.
On 19 April 2005 Master Newnes granted an interim injunction to the plaintiff. The terms of the injunction were that:
Until 5 pm on 13 June 2005, the first and…

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 Tiao v Lai

Details

AGLC: Tiao v Lai [2009] WASCA 169
Case: [2009] WASCA 169
Decision Date: 25 AUGUST 2009

CaseChat Overview and Summary

The case of Tiao v Lai involved a dispute between the parties, with the plaintiff seeking to join a third party as an appellant in the appeal process. The matter was heard in the court of appeal, where the legal issues at hand centred on the procedural aspects of allowing a third party to join as an appellant and the application of relevant legal principles in such a context. The court was required to determine whether the application to join the third party as an appellant was permissible under the existing legal framework and whether there were any compelling reasons to permit such a joinder.

The court considered the arguments presented by both the original appellant and the third party, focusing on the procedural fairness and the potential impact of the third party's inclusion on the appeal's outcome. The court examined the facts and circumstances unique to this case to assess whether the third party's involvement was warranted and if it would contribute meaningfully to the appeal's resolution. The court concluded that the application was grounded in the specific facts of the case and that the principles of justice and fairness supported the granting of the application.

Following the detailed analysis of the arguments and the relevant legal principles, the court found that the application for the third party to be joined as an appellant was justified. The court ruled that the application should be granted, allowing the third party to participate in the appeal process. The decision was made on the basis that the inclusion of the third party would not prejudice the rights of any other party and would assist in the fair and complete determination of the issues in the appeal.

Orders

Orders of the court

Application granted

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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