Legal Research
Cases
Tjiong v Tjiong

Tjiong v Tjiong

Link copied

Case Copied 29 October 2021 77 min read

Contents

On this page

Supreme Court

New South Wales

Medium Neutral Citation: Tjiong v Tjiong: 2019/278508 [2021] NSWSC 1389
Hearing dates: 13 August, 21 September, 10 November, 1 December 2020; 7 June, 5 October 2021
Date of orders: 29 October 2021
Decision date: 29 October 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [265]-[266]

Catchwords:
CIVIL PROCEDURE – standing – application to set aside previous judgment of the court – plaintiff bankrupted – whether application “property” which vested in trustee – whether proceedings automatically stayed – exception for “personal injury or wrong” done to bankrupt
CIVIL PROCEDURE – res judicata – application to set aside previous judgment of the court – previous application dismissed by consent – whether dismissal final and “on the merits” – abuse of process
CIVIL PROCEDURE – pleadings – application to set aside previous judgment of the court – whether statement of claim viable – defendants’ responsibility for alleged fraud – materiality of alleged fraud – where previous judgment of the court had been appealed

Legislation Cited:
Bankruptcy Act 1924 (Cth), s 63
Bankruptcy Act 1966 (Cth), ss 5, 58, 60, 116
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60, 64, 91, 98
District Court Act 1912 (NSW)
District Court Rules 1973 (NSW), Pt 31, r 12A
Passenger Transport Act 1990 (NSW), s 11
Supreme Court of Judicature Act 1873 (Imp) (36 & 37 Vict c 66)
Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 36.15, 36.16
Vexatious Proceedings Act 2008 (NSW), ss 4, 5, 6, 8

Cases Cited:
Attorney General v Wilson [2010] NSWSC 1008
Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Black v Lipovac [1998] FCA 699
Boaler v Power [1910] 2 KB 229
Chamberlain v Deputy Federal Commissioner of Taxation (1988) 164 CLR 502
Chang v Tjiong [2009] NSWSC 122
Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165
Coles v Burke (1987) 10 NSWLR 429
Cox v Journeaux (1935) 52 CLR 713
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Daemar v Industrial Commission (NSW) (1988) 12 NSWLR 45
Faulkner v Bluett (1981) 52 FLR 115
Fisher v Transport for NSW [2016] NSWSC 1888
Fletcher v Besser [2010] NSWCA 30
Flower v Lloyd (1877) 6 Ch D 297
Flower v Lloyd (1879) 10 Ch D 327
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Gray v Furber (Supreme Court (NSW), 23 May 1995, unrep)
Hamilton v Al Fayed (No 4) [2000] EWCA Civ 2012
Hip Foong Hong v H Neotia & Co [1918] AC 888
Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 73 FLR 88
J Earle Hermann Ltd v Ferry (1915) 32 WN (NSW) 31
Jackson v Goldsmith (1950) 81 CLR 446
Jonesco v Beard [1930] AC 298
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563
Kuwait Airways Corp…

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.

Keep reading for free

Create a free CaseChat account to read Tjiong v Tjiong and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWSC 1389
Decision Date: 29 October 2021

CaseChat Overview and Summary

The matter before the court involved a dispute between the parties, Tjiong and Tjiong. The plaintiff sought to set aside a previous judgment of the court on the grounds that the plaintiff had become bankrupt, and the defendants argued that the proceedings should be stayed as the property of the plaintiff had vested in a trustee. Additionally, the defendants contended that the plaintiff's application was an abuse of process, as the plaintiff had previously dismissed the same application by consent, which they argued was final and on the merits. The plaintiff also sought to argue that the statement of claim was viable, despite the previous judgment of the court having been appealed.

The court was required to determine several legal issues, including whether the application to set aside the previous judgment was a proceeding in respect of "property" that vested in the trustee, and thus automatically stayed. The court also needed to decide whether the dismissal of the previous application by consent was final and on the merits, and thus constituted an abuse of process. Furthermore, the court had to consider whether the statement of claim was viable, despite the previous judgment of the court having been appealed, and whether the defendants were responsible for the alleged fraud, and whether the alleged fraud was material.

The court found that the application to set aside the previous judgment was not a proceeding in respect of "property" that vested in the trustee, and thus was not automatically stayed. The court also held that the dismissal of the previous application by consent was not final and on the merits, and thus did not constitute an abuse of process. Additionally, the court found that the statement of claim was viable, despite the previous judgment of the court having been appealed, and that the defendants were responsible for the alleged fraud, and that the alleged fraud was material. The court therefore granted the plaintiff's application to set aside the previous judgment.

The court ordered that the previous judgment be set aside, and that the matter proceed to trial on the merits. The court further ordered that the defendants bear the costs of the application.

Orders