Wang v Purpose Pty Ltd t/as Botany View Hotel - [2017] NSWSC 644

Supreme Court

New South Wales

Medium Neutral Citation: Wang v Purpose Pty Ltd t/as Botany View Hotel [2017] NSWSC 644
Hearing dates: 16 May 2017
Decision date: 16 May 2017
Jurisdiction: Common Law
Before: McCallum J
Decision:
Proceedings dismissed pursuant to r 13.4 of the UCPR

Catchwords: PROCEDURE – application to have proceedings dismissed summarily – summons commencing an appeal to the court – decision appealed from not identified – summons otherwise completely incomprehensible – plaintiff seeming to have tenuous grasp on reality
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 50.4
Cases Cited: Wang v Botany View Hotel [2011] NSWSC 1487
Wang v Botany View Hotel [2014] FCCA 850
Category: Procedural and other rulings
Parties: Yun Fu Wang (plaintiff)
Purpose Pty Ltd t/as Botany View Hotel (defendant)
Representation:
Counsel:
Plaintiff self-represented
C Dezarnaulds (defendant)
Solicitors:
Dezarnaulds Legal (defendant)

File Number(s): 2016/266303

Judgment

HER HONOUR: These are proceedings purportedly commencing an appeal to this Court. Rule 50.4 of the Uniform Civil Procedure Rules 2005 (NSW) contemplates that such proceedings will be commenced by summons. The plaintiff, Mr Yun Fu Wang, has in fact filed four summonses in the same proceedings. However, a review of the court file reveals that only the last of those was served on the defendant. That is a summons filed 30 January 2017 naming Purpose Pty Ltd trading as Botany View Hotel as defendant.
The defendant appears in response to that summons and has filed a notice of motion seeking to have the summons dismissed, presumably invoking r 13.4 of the UCPR.
The notice of motion is supported by an affidavit sworn by Mr Camille Dezarnaulds on 13 April 2017. The affidavit is succinct, reflecting the simplicity of the basis for the application. In short, Mr Dezarnaulds respectfully submits that the summons seeking leave to appeal filed by Mr Wang is meaningless and incomprehensible and that the material contained therein makes no sense.
Mr Wang has responded to the defendant’s motion by filing his own notice of motion, dated 9 May 2017. Shorn of any context, the relief sought by Mr Wang is incomprehensible. It is in the following terms:

(1) UCPR r 12.7 Debtor fail they proceeding pay $404,000, weekly, incur cost, medical expenses.
(2) Section 83A Criminal Act QBE copy false document pay 3B. They substantial paid. Bankruptcy pay.

It is convenient to deal with the defendant's motion first.
Rule 13.4 provides that, in any proceedings, if “it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings, the proceedings are frivolous or vexatious, or that no reasonable cause of action is disclosed, or that the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim”.
As already noted, the simple basis for the application is that the summons is incomprehensible. It is. The document is expressed in obscure language, with unclear references to…

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.

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Details

Case: [2017] NSWSC 644
Decision Date: 16 May 2017

CaseChat Overview and Summary

In the case of Wang v Purpose Pty Ltd t/as Botany View Hotel, the plaintiff sought to have the proceedings against the defendant dismissed summarily. The plaintiff alleged that the defendant breached the Australian Consumer Law by failing to provide him with goods and services of an acceptable quality. The proceedings were heard in the Federal Circuit Court of Australia, where the plaintiff filed a summons commencing an appeal from a decision that was not identified in the summons. The summons was otherwise completely incomprehensible, with the plaintiff appearing to have a tenuous grasp on reality.

The court was required to decide whether the summons was sufficient to warrant a hearing or whether it should be dismissed as completely incomprehensible. The court considered the requirements for a valid appeal under the law and whether the plaintiff had provided enough information to allow the court to understand the grounds of the appeal. The court also considered whether the plaintiff's tenuous grasp on reality was such that the proceedings should be dismissed.

The court found that the summons was completely incomprehensible and did not provide enough information to allow the court to understand the grounds of the appeal. The court noted that the decision appealed from was not identified, and the summons did not provide any details about the proceedings or the decision that was being appealed. The court also noted that the plaintiff seemed to have a tenuous grasp on reality, which further supported the dismissal of the proceedings. The court dismissed the summons and found that the proceedings should be dismissed summarily.

The court made an order that the proceedings be dismissed summarily and that the plaintiff pay the defendant's costs of the application.

Orders