Weihai Taifu Textile Co Ltd v Australian Bravo Group Pty Ltd
[2019] NSWDC 378
•06 August 2019
District Court
New South Wales
Medium Neutral Citation: Weihai Taifu Textile Co Ltd v Australian Bravo Group Pty Ltd [2019] NSWDC 378 Hearing dates: 6 August 2019 Date of orders: 06 August 2019 Decision date: 06 August 2019 Jurisdiction: Civil Before: Judge Levy SC Decision: Assessment of damages declined – See paragraph [20] for other orders.
Catchwords: CIVIL PROCEDURE – contract claim – debt for unpaid goods sold and delivered – assessment hearing following entry of default judgment – assessment of damages declined – inadequate and embarrassing particulars expressed in a foreign language – Chinese – abuse of the Court’s process – irregularity not amenable to cure by application of s 14 of Civil Procedure Act 2005 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW), s 14, s 58, s 63, s 98
Legal Profession Uniform Application Act 2014 (NSW), cl 4
Uniform Civil Procedure Rules 2005 (NSW), r 13(1), r 14.28, r 15.1, r 15.10, r 35.3Category: Procedural and other rulings Parties: Weihai Taifu Textile Co Ltd (Plaintiff)
Australian Bravo Group Pty Ltd (Defendant)Representation: Counsel:
Solicitors:
Ms M Bridgett (Plaintiff)
No appearance (Defendant)
MLH Lawyers (Plaintiff)
File Number(s): 2018/236002 Publication restriction: None
Judgment
Claim
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This is an application for the assessment of damages in a debt claim. The application is procedurally problematic.
Procedural background
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The plaintiff, Weihai Taifu Textile Co Ltd, a company incorporated in the People's Republic of China, brings these proceedings against the defendant, Australian Bravo Group Pty Ltd, claiming damages in respect of an alleged debt in the sum of $102,590.26.
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The original statement of claim was filed on 30 July 2018. On 21 December 2018, the Court Registry refused to enter a default judgment in the proceedings based on the original statement of claim as filed. This was because the requirements of UCPR r 35.3(1) had not been satisfied in that there was no affidavit in support of the application by a member of the plaintiff company; no affidavit of service of the originating process had been filed; and the damages claimed in the proceedings were of a mixed character, namely not entirely liquidated in nature, therefore requiring an application for unliquidated damages to be assessed.
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The plaintiff now proceeds by way of an amended statement of claim filed on 11 March 2019.
Pleadings and particulars of claim
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The plaintiff’s amended statement of claim seeks damages for breach of contract in respect of goods sold and delivered.
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On 17 July 2019, the Registry of the Court entered a default judgment in respect of that pleading, in favour of the plaintiff, with damages to be assessed. That assessment hearing was fixed to be heard today, 6 August 2019. The defendant did not appear when the case was called.
Consideration
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At the commencement of the hearing a procedural difficulty became apparent, as follows.
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Whilst the plaintiff's amended statement of claim purports to particularise a claim for the value of textiles and garments supplied to the defendant by the plaintiff, some of the particulars of claim are in part set out in the Chinese language: Paragraphs 3(ii)(a) and (b); 4(i)(a) and (b); 6(c)(iii), 12 and 15.
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The basic requirement expected in a pleading is that that it must include such particulars as are necessary to identify to the opposite party the case that party is required to meet: UCPR r 15.1(1).
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The failure to comply with that requirement necessarily means that the statement of claim is irregular, and the default judgment obtained on the basis of that document must also be characterised as being irregular.
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It is indisputable that in this jurisdiction, the language of a pleading must be the English language. A pleading that does not comply with that requirement is irregular and is an abuse of the process of the Court: UCPR r 13(4)(c). Furthermore, such a pleading is liable to be struck out on account of a tendency to cause prejudice or embarrassment: UCPR r 14.28(1)(b).
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When the above difficulties were identified counsel for the plaintiff submitted that the assessment should nevertheless proceed as s 63 of the Civil Procedure Act empowers the Court to overlook irregularities so that steps taken in the proceedings, in this case, the entry of default judgment, should not be considered to be invalidated.
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The emergent problem with the pleadings has not been hitherto identified. On being appraised of the problem, counsel for the plaintiff took the opportunity to obtain instructions on the matters raised and explored during argument, and the matter was stood down in the list for a short time for this to occur. In my view, both before and after the adjournment, she has submitted all that could reasonably be said in defence of the pleadings, particulars, and the course sought by the plaintiff.
Determination
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Notwithstanding those submissions, in my view, the plaintiff should not be permitted to proceed to have damages assessed in respect of a default judgment based upon a deficient pleading. The relevant deficiency is that a part of the plaintiff’s claim for damages has been particularised in a foreign language, namely Chinese, without an appropriate translation of the relevant Chinese text relied upon.
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That circumstance causes embarrassment because the Court is not able to discern the full meaning of the pleading. That is not an irregularity of a kind that is capable of cure by an application of s 14 of the Civil Procedure Act 2005 (NSW), which confers a discretion on the Court to dispense with the requirements of the rules, including for provision of proper particulars, and it is not an appropriate circumstance to apply s 63 of the Act as the defendant, either at the time of service, or at the time of an enforcement of the judgment now sought, would not know the particulars of the foundations of the claim because the content is partly in the Chinese language.
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In those circumstances, it would be procedurally unfair and unjust to the absent defendant, and contrary to the dictates of justice, to impose the burden of a monetary judgment on the defendant: s 58(2) of the Civil Procedure Act.
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I therefore decline to assess damages in this case as presently pleaded. The default judgment must be set aside as having been irregularly obtained. The claim must be re-pleaded in a manner that complies with the rules: UCPR r 15.10(10(a).
Costs
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The costs of the identified irregularity should not be borne by the plaintiff company where a solicitor has certified the proceedings pursuant to cl 4 of the Legal Profession Uniform Application Act 2014 (NSW). I consider that this is an appropriate case for the solicitor for the plaintiff to show cause as to why he should not personally pay the costs of remedying the pleadings: s 98(1)(a) of the Civil Procedure Act.
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A certifying solicitor must be taken to know that a pleading must be clearly particularised in the English language.
Orders
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I make the following orders:
I decline to assess damages claimed pursuant to the default judgment entered on 17 July 2019;
The default judgment entered on 17 July 2019 is set aside on the ground that it was irregularly obtained;
Pursuant to UCPR r 15.10(1)(a), within 30 days of today's date, the plaintiff is required to re-plead its claim in a further amended statement of claim fully expressed in the English language, and any such amended statement of claim is to be served on the defendant in accordance with the rules;
Within 30 days of today’s date, the solicitor for the plaintiff, Mr Shing Hei Lam, is to file an affidavit showing cause as to why he should not personally pay the costs of preparing all pleadings to date; the costs of and incidental to the default judgment; today's hearing; and the costs of preparing any further amended statement of claim to remedy the identified irregularity of the plaintiff’s pleading: s 98(1) of the Civil Procedure Act 2005 (NSW);
The show cause hearing the subject of Order (4) above is listed at 10.00am on Friday 6 September 2019;
Liberty to apply on 3 days’ notice if further or other orders are required.
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Decision last updated: 06 August 2019
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