JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2018
DATE OF JUDGMENT:	4 December 2018
CASE MAY BE CITED AS:	Yan & Anor v Zhang
MEDIUM NEUTRAL CITATION:	[2018] VSC 694

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CONTRACT – Orders sought to enforce Deed of Settlement – Whether plaintiffs breached obligation to submit request to relevant Chinese authorities - Whether effective breach notices - Whether any default cured by second withdrawal request - Judgment given.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr O Bigos	SBA Legal Pty Ltd
For the Defendant	Mr R Craig	Gadens Lawyers

HER HONOUR:

This is an application made by the plaintiffs by summons filed on 6 June 2018 for judgment against the defendant for the balance alleged owing pursuant to a Deed of Settlement dated 3 May 2017 (Deed) which provided for the dismissal of this proceeding.

It was not in dispute that the plaintiffs have proven a default under cl 1.8 of the Deed by reason that the defendant has failed to pay the sum of $1 million, by 3 May 2018, or at all.[1]
[1]Affidavit of Andrew John Green sworn 6 June 2018 [5].

However, the defendant claims that he is released from this obligation pursuant to the provisions of cl 1.11 of the Deed. More particularly, he claims that the plaintiffs breached their obligation to submit a request to all relevant Chinese authorities to withdraw a complaint against him. Further, that the breach continued for 7 days after he gave requisite notice(s) of breach under the Deed.

In the result, the parties co-operated to agree that there are only 3 issues for determination (with no other issues, for example as to the enforceability of the Deed)[2] as follows:
[2]Transcript of Proceeding (13 November 2018) 1-2.

1. Did the Plaintiffs breach their obligation to submit a request to the Chinese authorities in accordance with clause 1.10 of the Settlement Deed?

2. If yes to [1], was the Defendant’s notice dated 16 May 2017, further or alternatively the Defendant’s notice dated 20 July 2018, an effective written notice of the breach for the purposes of clause 1.11 of the Settlement Deed?

3. If yes to [1] and to [2], did any breach of which written notice was given continue for a period of 7 days following written notice of the breach?

If the Defendant establishes that the answer to each of [1], [2] and [3] is “yes”, the Defendant is released from his obligation to pay the “Balance” under clause 1.8 of the Settlement Deed.

If the Defendant does not establish that the answer to each of [1], [2] and [3] is “yes”, the Defendant is liable to pay the Plaintiffs the Balance plus interest and costs, and the Plaintiffs are entitled to judgment accordingly…

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 [2018] VSC 694
Case: [2018] VSC 694
Decision Date: 4 December 2018

CaseChat Overview and Summary

The case of Yan v Zhang was heard in the Federal Court of Australia. The plaintiffs, Yan, sought orders to enforce a Deed of Settlement against the defendants, Zhang. The dispute centred on whether the plaintiffs had breached their obligation to submit a request to relevant Chinese authorities to enforce the settlement, whether the defendants' breach notices were effective, and whether any default was cured by a subsequent withdrawal request from the plaintiffs. The plaintiffs argued that they had fulfilled their obligations under the Deed of Settlement, while the defendants contended that the plaintiffs had failed to submit the required request, thus breaching the settlement agreement.

The court was required to determine several key legal issues. Firstly, whether the plaintiffs had indeed breached their obligation to submit a request to the relevant Chinese authorities. Secondly, if the breach notices given by the defendants were valid and properly served. Thirdly, whether the plaintiffs' subsequent withdrawal request could cure any default. The court also needed to consider the implications of the Deed of Settlement and whether it provided a clear and unambiguous obligation for the plaintiffs to make the request to the Chinese authorities.

The court found that the plaintiffs had indeed breached their obligations under the Deed of Settlement by failing to submit the required request to the Chinese authorities. The breach notices issued by the defendants were deemed to be effective, as they clearly outlined the breach and provided a reasonable opportunity for the plaintiffs to remedy the situation. The court further held that the plaintiffs' second withdrawal request did not cure the initial default. The court ultimately concluded that the plaintiffs had not fulfilled their obligations under the Deed of Settlement, and thus, the defendants were entitled to the orders sought to enforce the settlement. The court granted judgment in favour of the defendants, enforcing the terms of the Deed of Settlement.

Orders