Uy v Ng

Case [2021] NSWSC 429 26 April 2021

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Supreme Court

New South Wales

Medium Neutral Citation: Uy v Ng [2021] NSWSC 429
Hearing dates: 26 April 2021
Date of orders: 26 April 2021
Decision date: 26 April 2021
Jurisdiction: Equity - Commercial List
Before: Rees J
Decision:
Application to vacate hearing refused with costs

Catchwords:
CIVIL PROCEDURE – application to vacate 3 day trial on medical grounds – principles at [17]-[21] – plaintiff in hospital – feeling sick, complaining of chest pains, elevated blood pressure – no report from GP or specialist that unable to attend Court – history of non-compliance with directions due to non-specific illness unsupported by medical evidence – application refused.

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 66

Cases Cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australia and New Zealand Banking Group Ltd v Mio Amico Pty Ltd [2013] NSWSC 716
Forster v Harvey [2006] NSWSC 1112
Hamod v New South Wales [2011] NSWCA 375
In the matter of Wise & Young Pty Ltd [2019] NSWSC 1092
Kerr v American Express Australia Ltd [2009] FCA 1219
Lennox v Amcor Ltd trading as Amcor Cartonboard (No 2) [2009] FCA 962
Magjarraj v Asteron Life Ltd [2009] NSWSC 1433
Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210; (2014) 101 ACSR 25
Singh v Deputy Commissioner of Taxation [2011] FCA 889
Thornberry v The Queen (1995) 69 ALJR 777
Von Reisner v Chepurin [2012] NSWCA 418

Category: Procedural rulings
Parties: Ching Wah (Phillip) Uy (Plaintiff)
Lib Heng (Kenny) Ng (First Defendant)
Everest Private Pty Ltd (Second Defendant)
Representation:
Counsel:
R A Parsons (Plaintiff)
J J Hatton (Defendants)
Solicitors:
Kells The Lawyers (Plaintiff)
Ashurst Australia (Defendants)

File Number(s): 2019/377141

Ex Tempore Judgment

HER HONOUR: This is an application by the plaintiff, Ching Wah (Phillip) Uy, to vacate a three-day trial listed for hearing commencing today. The application was served on the defendants over the weekend and is opposed.

Facts

These proceedings were commenced in December 2019. The proceedings were the subject of various delays by the plaintiff, the details of which it is not necessary to set out. In October 2020, time came for the plaintiff to file evidence in reply. The defendants' solicitors circulated proposed short minutes of order for the upcoming directions hearing, proposing a date for the plaintiff to do so. The day before the directions hearing, the plaintiff's solicitor advised that the plaintiff was not in a position to review the defendants' evidence and put on evidence in reply, stating:

We are instructed that our client has recently been discharged from hospital due to a serious heart condition. … [W]e will provide you with the evidence from our client's doctor as soon as we receive the same.

The defendants' solicitor enquired when the plaintiff had been discharged from hospital, to which the plaintiff's solicitor replied:

[W]e have previously misinterpreted our client's instructions regarding his health. While our client is suffering [from] a serious medical condition,…

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 Uy v Ng

Details

AGLC: Uy v Ng [2021] NSWSC 429
Case: [2021] NSWSC 429
Decision Date: 26 April 2021

CaseChat Overview and Summary

The case of Uy v Ng involved the plaintiff seeking to vacate a scheduled three-day trial on medical grounds. The application was brought before the court and was subsequently refused. The plaintiff, Uy, claimed to be in hospital, feeling unwell with symptoms including chest pains and elevated blood pressure. However, Uy did not present any medical reports from a general practitioner or specialist confirming an inability to attend court. The plaintiff's application to vacate the trial was based on a history of non-compliance with court directions, which was allegedly due to non-specific illnesses that were not substantiated by any medical evidence.

The legal issues before the court were whether the plaintiff's medical condition was sufficiently serious to warrant vacating the trial and whether the plaintiff's past history of non-compliance with court directions, without supporting medical evidence, should be a factor in the decision. The court had to balance the need to ensure fair and just proceedings with the health and welfare of the plaintiff.

The court found that the plaintiff's medical grounds for vacating the trial were not compelling enough to warrant a change to the scheduled proceedings. The absence of a medical report confirming the plaintiff's inability to attend court was a significant factor. Additionally, the plaintiff's past history of non-compliance with court directions, without any medical evidence, did not support the application. The court held that the principles guiding such decisions required clear and compelling evidence of the plaintiff's incapacity to proceed with the trial. Therefore, the application to vacate the trial was refused.

Orders