Xianzhu v Chen - [2020] VSC 264

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02923

SHI XIANZHU	Appellant
v
SHUANGHAO CHEN	Respondent

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2020
DATE OF RULING:	12 May 2020 (given ex tempore, revised)
CASE MAY BE CITED AS:	Xianzhu v Chen
MEDIUM NEUTRAL CITATION:	[2020] VSC 264

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PRACTICE AND PROCEDURE – Application to amend notice of appeal – Legal practitioner error – Leave granted in the interests of justice – Costs thrown away – Supreme Court (General Civil Procedure) Rules 2015 r 58.01 – Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M McKenzie	McDonald Lawyers
For the Respondent	Mr M Seelig	Destra Law

TABLE OF CONTENTS

Appellant’s submissions.................................................................................................................. 1

Respondent’s submissions............................................................................................................... 1

Applicable Principles........................................................................................................................ 2

Analysis................................................................................................................................................ 4

Costs...................................................................................................................................................... 5

HER HONOUR:

The respondent took a painting to the appellant for framing and never got it back. He obtained orders in the Magistrates’ Court that the appellant pay him damages. Those orders are the subject of this appeal proceeding. This ruling concerns a late application for amendment. The trial of this proceeding is listed in less than three days’ time. At a directions hearing listed this day, the appellant, who is legally represented, seeks to amend his notice of appeal. The application for leave to amend is opposed.

The amendment to the notice of appeal seeks to add the ground that “the Magistrate ought not to have admitted the evidence of the alleged expert opinion by witness Guan for the reasons set out in the submissions already served”. The Magistrate relied upon evidence given by Mr Luke Guan of Mossgreen Auction House to make a finding as to the valuation of the painting. This informed the quantum of damages that the Magistrate ordered the appellant pay the respondent.

Appellant’s submissions

As counsel was reviewing the documents for trial, he realised the notice of appeal omitted reference to the ground of appeal concerning Mr Guan. The issue of Mr Guan’s evidence was addressed in the appellant’s written submissions dated 25 September 2019 and reply submissions dated 24 April 2020. The appellant’s submissions stated that the primary issue in the Magistrates’ Court was the quantum of loss, measured by reference to the value of the lost painting.

Respondent’s submissions

The appellant has offered little or no explanation for the late amendment, and gave the respondent only a few hours’ notice of it. It is made less than three days’ before trial. The respondent’s written submissions do not deal with the proposed ground of appeal, as the appellant’s submissions in reply concede. The respondent’s written submissions address the matters in the notice of appeal. Rule 58.01 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) requires the notice of appeal concisely state the grounds of appeal. The appellant refers to the obligations for timeliness in the Civil Procedure Act 2010

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 Xianzhu v Chen

Details

AGLC: Xianzhu v Chen [2020] VSC 264
Case: [2020] VSC 264
Decision Date: 12 May 2020 (given ex tempore, revised)

CaseChat Overview and Summary

In the matter of Xianzhu v Chen, the applicant sought to amend a notice of appeal on the grounds of error by a legal practitioner. The respondent opposed the application, arguing that leave should not be granted. The appeal was before the Supreme Court of Victoria. The central issue was whether the court should grant leave to amend the notice of appeal to correct an error made by the applicant's legal practitioner, and if so, whether this should be done in the interests of justice. Additionally, the court considered whether the respondent should be ordered to pay costs associated with the application.

The court held that it has a broad discretion to grant leave to amend a notice of appeal under Supreme Court (General Civil Procedure) Rules 2015 rule 58.01, particularly where an error by a legal practitioner is at fault. The court considered the principles set out in Billington v Sussan Corporation Australia Pty Ltd, where it was held that the court should not be reluctant to grant leave if it is in the interests of justice to do so. The court found that granting leave in this case would be in the interests of justice because the error was not due to any fault on the part of the applicant, and the respondent was not prejudiced by the delay. The court also noted that the respondent was ordered to pay the costs of the application, but subsequently, these costs were thrown away. The court reasoned that this was appropriate given the circumstances of the case and the error made by the legal practitioner.

Orders