Wu v Ling (No 2) - [2016] NSWCA 356

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wu v Ling (No 2) [2016] NSWCA 356
Hearing dates: On the papers
Date of orders: 14 December 2016
Decision date: 14 December 2016
Before: Leeming JA
Payne JA
Bergin CJ in Eq
Decision:
Judgment is entered for the cross-appellant in the amount of $3,086,424.71

Catchwords: FINAL ORDERS – where parties required to agree on the calculation of the amount to be entered as judgment for the cross-appellant – where cross-appellant provided calculations to solicitors for cross respondent – where cross-respondent represented by solicitors on the record – where cross-respondent’s solicitors advise that they did not have “any instructions to permit” a response – where cross-respondent personally files Notice of Motion for orders – whether judgment should be entered in the circumstances
Cases Cited: Wu v Ling [2016] NSWCA 322
Category: Consequential orders (other than Costs)
Parties: Yan Wu (Appellant/Cross-Respondent)
Albert Ling (Respondent/Cross-Appellant)
Representation: Solicitors:
Breene and Breene (Appellant/Cross-Respondent)
Solomon Tudehope (Respondent/Cross-Appellant)

File Number(s): 2015/374448
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law

Citation:

[2015] NSWSC 850
[2015] NSWSC 1550

Date of Decision:

30 June 2015

Before:

Button J

File Number(s):

2012/292029; 2013/224583

Judgment

THE COURT: Judgment in this matter was delivered on 24 November 2016: Wu v Ling [2016] NSWCA 322 (the Judgment). The same nomenclature used in the Judgment is adopted in these short reasons.
Orders were entered on 24 November 2016 dismissing the appeal, allowing the cross-appeal and setting aside the orders made in the Court below on 25 November 2015. An order was also made that the appellant pay the respondent’s costs of the appeal, the cross-appeal and the proceedings below. The orders included the following:

(4) Judgment will be entered for the cross-appellant for the principal amount and contractual interest on all loans up to 24 November 2016.
(5) The parties are to agree on the calculation of the amount to be entered as judgment for the cross-appellant and provide that calculation in a Short Minute of Order delivered to the Chambers of the presiding judge by 9 December 2016. That order will be made in Chambers.

The respondent is represented by Solomon Tudehope Solicitors. The appellant is and was represented by solicitors, Breene and Breene, at all relevant times during the appeal, at the time of the Judgment and presently.
On 2 December 2016 Solomon Tudehope retained Benbow & Pike, Chartered Accountants, to calculate the judgment amount. On 6 December 2016 Benbow & Pike provided that calculation. The total amount of interest is $2,678,070.35. Benbow & Pike then took into account the repayments made by the appellant of $261,645.64, leaving a balance of $2,416,424.71. The principal amount of $670,000 plus interest of $2,416,424.71 makes a total amount of $3,086,424.71.
Solomon Tudehope forwarded Benbow & Pike’s report and calculation to Breene and Breene on 6 December 2016. They included a draft form of order for submission to the presiding judge that provided for…

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 Wu v Ling (No 2)

Details

AGLC: Wu v Ling (No 2) [2016] NSWCA 356
Case: [2016] NSWCA 356
Decision Date: 14 December 2016

CaseChat Overview and Summary

In *Wu v Ling (No 2)*, the New South Wales Court of Appeal considered an application for judgment to be entered for the cross-appellant, following a prior decision that had determined the quantum of the cross-appellant's entitlement. The dispute arose because the parties had been required to agree on the precise calculation of the amount to be entered as judgment, but agreement had not been reached. The cross-appellant had provided its calculations to the solicitors for the cross-respondent, who indicated they had no instructions to respond. Subsequently, the cross-respondent personally filed a Notice of Motion seeking orders in relation to the judgment amount.

The central legal issue before the Court of Appeal was whether judgment should be entered for the cross-appellant in the amount it claimed, notwithstanding the lack of agreement from the cross-respondent and the fact that the cross-respondent was represented by solicitors on the record. The court had to determine if the circumstances warranted the entry of judgment in the absence of a formal agreement or a clear concession from the cross-respondent, particularly given the cross-respondent's subsequent personal filing of a motion.

The Court of Appeal reasoned that the cross-respondent's solicitors' advice that they lacked instructions to permit a response, coupled with the cross-respondent's personal filing of a motion, did not prevent the court from entering judgment. The court noted that the cross-appellant had provided its calculations, and the absence of a response from the represented cross-respondent, or a clear objection, meant that the cross-appellant's figures were effectively unopposed in the context of the court's prior determination of entitlement. The court applied the principle that where a party is required to agree on a calculation and fails to do so, and their legal representatives indicate an inability to act, the court may proceed to enter judgment based on the available information.

The Court of Appeal ordered that judgment be entered for the cross-appellant in the amount of $3,086,424.71.

Orders

Orders of the court

Judgment is entered for the cross-appellant in the amount of $3,086,424.71

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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Medium Neutral Citation:	Wu v Ling (No 2) [2016] NSWCA 356
Hearing dates:	On the papers
Date of orders:	14 December 2016
Decision date:	14 December 2016
Before:	Leeming JA Payne JA Bergin CJ in Eq
Decision:	Judgment is entered for the cross-appellant in the amount of $3,086,424.71
Catchwords:	FINAL ORDERS – where parties required to agree on the calculation of the amount to be entered as judgment for the cross-appellant – where cross-appellant provided calculations to solicitors for cross respondent – where cross-respondent represented by solicitors on the record – where cross-respondent’s solicitors advise that they did not have “any instructions to permit” a response – where cross-respondent personally files Notice of Motion for orders – whether judgment should be entered in the circumstances
Cases Cited:	Wu v Ling [2016] NSWCA 322
Category:	Consequential orders (other than Costs)
Parties:	Yan Wu (Appellant/Cross-Respondent) Albert Ling (Respondent/Cross-Appellant)
Representation:	Solicitors: Breene and Breene (Appellant/Cross-Respondent) Solomon Tudehope (Respondent/Cross-Appellant)
File Number(s):	2015/374448
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2015] NSWSC 850 [2015] NSWSC 1550 Date of Decision: 30 June 2015 Before: Button J File Number(s): 2012/292029; 2013/224583