Wei v Chen - [2012] NSWSC 751

Supreme Court

New South Wales

Medium Neutral Citation: Wei v Chen [2012] NSWSC 751
Hearing dates: 4 & 5 April, 4 May, 15 June 2012
Decision date: 06 July 2012
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
1.Note that the documents identified in Order 1(i) - (viii) be regarded as having been served upon the first Defendant.
2.Note the undertaking of the second Defendant's solicitor to pay the filing fee in respect of the notice of motion dated 14 June 2012 and the Cross-Claim filed in court on 15 June 2012.
3.Declare that the amount payable by the Plaintiff and the first Defendant to the second Defendant is $317,005.46.
4.Order that the amount paid into court in proceedings 2012/99648, together with any additional interest accrued thereon, until the date of payment, be paid to the second Defendant in part satisfaction of the amount payable referred to in order (3):
(a) as to one half of the amount held and interest no earlier than 21 days from the making of these orders;
(b) as to the other half of the amount held and interest no earlier than 49 days from the making of these orders.
5.Direct that, within 7 days of the date of the reasons for judgment being published, the first Defendant be advised, in writing, of these orders and be provided with a copy of the reasons for judgment in the same manner as previous documents have been served upon him.
6.Order that there be a verdict and judgment for the second Defendant against the Plaintiff and the first Defendant in the amount of $118,044.67.
7.Order that the balance of the Statement of Claim and the Cross-Claim be dismissed.
8.Order that the Plaintiff and the first Defendant pay the second Defendant's costs of preparing the Cross-Claim and her affidavits in support thereof, and of her appearance on 5 April 2012 and 15 June 2012.
9.Order that the second Defendant pay the Plaintiff's costs of preparing the affidavits and submissions relied upon by the second Defendant, but that the first Defendant indemnify her for those costs.
10.Otherwise make no order in favour of the Plaintiff for her costs of the proceedings.
11. Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005

Catchwords: Application by Plaintiff for payment of moneys out of Court to second Defendant - Initially no claim by second Defendant for moneys - Cross-Claim later filed by second Defendant for payment of moneys out of Court - No appearance by first Defendant who may have right to claim part of funds paid into Court - Court satisfied that first Defendant properly served with Statement of Claim and other documents - Plaintiff agrees that amount owed to second Defendant by Plaintiff and first Defendant is greater than amount paid into Court - Order that moneys be paid out of Court to second Defendant - Judgment for second Defendant for balance owed to her by Plaintiff and first defendant
Legislation Cited: Civil…

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 Wei v Chen

Details

AGLC: Wei v Chen [2012] NSWSC 751
Case: [2012] NSWSC 751
Decision Date: 06 July 2012

CaseChat Overview and Summary

In the matter of Wei v Chen, the plaintiff, Wei, sought an order for the payment of a sum of money out of court to the second defendant, Chen, who had filed a cross-claim for payment of moneys. The first defendant, who may have a right to claim part of the funds paid into court, did not appear. The court was tasked with determining whether it was appropriate to pay the second defendant the amount claimed, given that the plaintiff agreed that the sum owed by both the plaintiff and the first defendant to the second defendant was greater than the amount paid into court.

The court needed to decide whether to order the payment of the funds to the second defendant, despite the absence of the first defendant. The key legal issue was whether the second defendant was entitled to the payment of the moneys out of court, considering the first defendant's potential claim to part of the funds and the service of the statement of claim and other documents on the first defendant. The court also had to assess whether the plaintiff's agreement to the amount owed was sufficient to warrant the payment to the second defendant.

The court found that the first defendant had been properly served with the statement of claim and other documents. The plaintiff's agreement that the amount owed to the second defendant by both the plaintiff and the first defendant exceeded the amount paid into court was deemed reliable. The court was satisfied that it was appropriate to make the order for payment of the funds to the second defendant, as the first defendant had not appeared and the plaintiff had acknowledged the amount owed. Consequently, the court ordered that the moneys be paid out of court to the second defendant and made a judgment in her favour for the balance owed to her by both the plaintiff and the first defendant.

Orders