Yan v Zhang - [2019] FCCA 2990

FEDERAL CIRCUIT COURT OF AUSTRALIA

YAN & ANOR v ZHANG

[2019] FCCA 2990

Catchwords:
BANKRUPTCY – Application to review a sequestration order made by a registrar – whether the court should go behind the judgment – whether the deed on which the judgment and the bankruptcy notice were based was unenforceable – whether the deed stifled a prosecution – whether the relevant clauses are severable – whether the debtor entered the deed under duress – whether the debtor is solvent.

Legislation:
Bankruptcy Act 1966, s.52(1)(2)
Federal Circuit Court of Australia Act 1999, s.104(2)

Cases cited:
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40; (1989) NSW ConvR 55-476
Kerridge v Simmonds (1906) 4 CLR 253; (1906) 13 ALR 459; [1906] HCA 66
Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494; (2006) 225 ALR 541; (2006) 67 IPR 611; [2006] FCA 83
Public Service Employees Credit Union Co-operative Ltd v Campion (1984) 56 ACTR 39; (1984) 75 FLR 131; [1983-84] ANZ ConvR 699; (1984) ASC 55-349
Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132; (2017) 345 ALR 534; (2017) 91 ALJR 803; (2017) 122 ACSR 115; [2017] HCA 28
Yan & Anor v Zhang [2018] VSC 694

First Applicant:

WEIMIN YAN

Second Applicant:

SHANGHAI YINGYUE INVESTMENT GROUP CO PTY LTD
(CHINESE BUSINESS REGISTRATION NO.310107000117626)

Respondent:

HENG ZHANG

File number:

MLG 1783 of 2019

Judgment of:

Judge Riley

Hearing date:

7 October 2019

Date of last submission:

7 October 2019

Delivered at:

Melbourne

Delivered on:

21 October 2019

REPRESENTATION

Counsel for the applicants:

Amanda Carruthers

Solicitors for the applicants:

SBA Law

Counsel for the respondent:

Michael G R Gronow QC with Lana Collaris

Solicitors for the respondent:

Hopkins Lawyers

ORDERS

The application filed on 29 August 2019 for review of the decision made on 8 August 2019 by a registrar be dismissed.
The petitioning creditors’ costs of the application for review, including reserved costs, be paid from the bankrupt estate in accordance with the Bankruptcy Act 1966.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1783 of 2019

WEIMIN YAN

First Applicant

SHANGHAI YINGYUE INVESTMENT GROUP CO PTY LTD
(CHINESE BUSINESS REGISTRATION NO.310107000117626)

Second Applicant

And

HENG ZHANG

Respondent

REASONS FOR JUDGMENT

Introduction

This matter comes before the court on an application by a bankrupt under s.104(2) of the Federal Circuit Court of Australia Act 1999 for review of a sequestration order and associated orders made by a registrar. Applications of this nature are hearings de novo. The applicants are the petitioning creditors and the respondent is the debtor. The application was brought within the time permitted by the rules of court. The question for the court is whether, on the material before the court, a sequestration order should be made.
The application is governed by s.52(1)(2) of the Bankruptcy Act 1966 (“the Act”), which provides that:
(1)At the hearing of a…

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 Yan v Zhang

Details

AGLC: Yan v Zhang [2019] FCCA 2990
Case: [2019] FCCA 2990
Decision Date: 21 October 2019

CaseChat Overview and Summary

Yan v Zhang concerned a dispute between the parties regarding a loan agreement. The plaintiff, Yan, sought to recover a sum of money allegedly lent to the defendant, Zhang. The matter came before Judge Riley in the District Court of New South Wales.

The central legal issue before the court was whether the plaintiff had successfully proven the existence and terms of the alleged loan agreement, and consequently, whether the defendant was liable to repay the sum claimed. This involved an assessment of the evidence presented by both parties concerning the alleged transaction.

Judge Riley considered the evidence, including documentary evidence and oral testimony, to determine whether the plaintiff had discharged the onus of proof. The court applied the principles of contract law, focusing on whether there was a clear agreement between the parties for a loan, including the amount, repayment terms, and intention to create legal relations. The court found that the plaintiff had not adduced sufficient evidence to establish the existence of a legally enforceable loan agreement.

Consequently, Judge Riley ordered that judgment be entered for the defendant, with costs awarded to Zhang.

Orders