Xie v Zhang - [2025] VSC 263

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
GENERAL COMMERCIAL LIST

S ECI 2025 01298

YUAN SHENG XIE	Plaintiff
v
ZHI WU ZHANG	Defendant

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JUDGE:	CONNOCK J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2025
DATE OF JUDGMENT:	9 May 2025 (ex tempore; revised 13 May 2025)
CASE MAY BE CITED AS:	Xie v Zhang
MEDIUM NEUTRAL CITATION:	[2025] VSC 263

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PRACTICE AND PROCEDURE – Debt claim under a promissory note – Writ issued under s 4 of Instruments Act 1958 (Vic) – Time for defendant seeking leave to file an appearance expired and cannot be extended – Right to enter final judgment – Entry of final judgment under s 4 of Instruments Act is not entry of judgment in default of defendant filing an appearance under r 21.01(2) – Appearance under r 21.01(2) – Notice of application given to defendant who failed to seek leave to enter an appearance under s 5 of the Instruments Act 1958 (Vic) – Entry of default judgment under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) is an act of ministerial character of the Prothonotary – Instruments Act 1958 (Vic) ss 3, 4, 5 and 10 and Second Schedule thereto – Supreme Court (General Civil Procedure) Rules 2015 rr 21.01(2) – Rule 2.07(1) of Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) ch II not engaged – Kay’s Leasing Corporation Pty Ltd v Burgess [1961] VR 703; Costain Australia Limited v Dennehy [1983] 2 VR 353; Cooper Morison Pty Ltd v Tennozan Pty Ltd [2008] VSC 273; Victorian WorkCover Authority v White [2021] VSC 458; Laminex Group Pty Ltd v Dwan [2023] VSC 595 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	L Nikolakis, solicitor	AANDI Lawyers
For the Defendant	Y Zhang, solicitor	Westlink Legal

HIS HONOUR:

Introduction

By a writ dated 12 March 2025 filed pursuant to s 4 and the Second Schedule of the Instruments Act 1958 (Vic) (Instruments Act), the plaintiff claims $3,492,880.00 (Sum) from the defendant, said to be due and payable pursuant to the terms of a promissory note dated 7 May 2019. An affidavit of service of Morrie Fahd sworn 20 March 2025 records that the writ was personally served on the defendant at 7:08 am on 14 March 2025.

The defendant did not apply for leave to file an appearance within the relevant 21 day period prescribed in s 5(2) of the Instruments Act and the plaintiff then sought to enter judgment for the Sum and $4,190.70 for legal costs (Costs Amount) pursuant to s 4 of the Instruments Act. Upon so doing, the plaintiff was informed by the Commercial Court Registry that, by reason of the operation of r 21.01(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) and r 2.07(1) of the Supreme Court (Miscellaneous Civil Proceedings) Rules2018 (Vic) (Miscellaneous Rules), it was necessary for the plaintiff…

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 Xie v Zhang

Details

AGLC: Xie v Zhang [2025] VSC 263
Case: [2025] VSC 263
Decision Date: 9 May 2025 (ex tempore; revised 13 May 2025)

CaseChat Overview and Summary

In the matter of Xie v Zhang, the plaintiff sought a debt under a promissory note. The defendant, Zhang, failed to seek leave to file an appearance within the specified time and this could not be extended. The matter was heard in the Supreme Court of Victoria. The central issue for the court was whether the Prothonotary had the authority to enter a final judgment under the Instruments Act 1958 (Vic) after the defendant's opportunity to seek leave to file an appearance had expired. The court considered whether this constituted an act of ministerial character or whether it required judicial discretion.

The court determined that the entry of a final judgment under the Instruments Act was a ministerial act, distinct from the entry of judgment in default under the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The court found that the Prothonotary had the authority to enter the final judgment once the defendant failed to seek leave to file an appearance within the required time frame. This conclusion was supported by precedents such as Kay’s Leasing Corporation Pty Ltd v Burgess, Costain Australia Limited v Dennehy, Cooper Morison Pty Ltd v Tennozan Pty Ltd, Victorian WorkCover Authority v White, and Laminex Group Pty Ltd v Dwan. The court further clarified that Rule 2.07(1) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) was not applicable in this context.

The court concluded that the Prothonotary's entry of final judgment under the Instruments Act was indeed a ministerial act. Therefore, the plaintiff, Xie, was entitled to the judgment sought. The court ordered that the defendant Zhang was liable to pay the plaintiff Xie the sum of money claimed, plus interest and costs.

Orders