Tjiong v Tjiong

Case [2021] NSWSC 1389


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…

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AGLC
Tjiong v Tjiong [2021] NSWSC 1389
Case
[2021] NSWSC 1389
Decision Date

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

Orders of the court

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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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