Yang v New South Wales Land and Housing Corporation

[2025] NSWCA 58

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Yang v New South Wales Land and Housing Corporation [2025] NSWCA 58

Hearing dates:

24 March 2025

Date of orders:

4 April 2025

Decision date:

04 April 2025

Before:

Kirk JA

Decision:

(1) The application for an extension of time for filing of the notice of appeal is refused and the appeal is dismissed.

(2) The appellant is to pay the respondent’s costs of its motion and the appeal.

Catchwords:

APPEALS – leave to appeal – competency – monetary threshold – procedural irregularity in filing summons seeking leave not causing distinct prejudice

APPEALS – procedure – time Limits – extension of time – reasonable explanation for delay in filing notice of appeal – delay significant but not substantial – no distinct prejudice to other party – no utility in granting extension for continuous failure to demonstrate reasonably or fairly arguable case on appeal

CIVIL PROCEDURE – summary dismissal where no reasonable cause of action disclosed – pleadings – striking out – none of three attempts by appellant properly identify grounds of appeal beyond raising matters not in issue below or matters which would not establish that the proceeding was not statute-barred

LIMITATION OF ACTIONS – suspension of time – plaintiff asserted to be under disability – restraint or detention in foreign country

Legislation Cited:

Limitation Act 1969 (NSW), ss 11, 14(1), 52, 55, 56

Residential Tenancies Act 2010 (NSW)

Supreme Court Act 1970 (NSW), ss 23, 101(2)(r)

Uniform Civil Procedure Rules 2005 (NSW), rr 4.10(5)(b), 15.3, 51.10(1)(b) and 51.16(1)(c)

Cases Cited:

Asuzuv Council of the New South Wales Bar Association [2012] NSWCA 406

Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62

Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267

Karaagac v GRE Insurance Limited [1989] NSWCA 116

Warne v ACN 603 541 411 Pty Ltd t/a Chandlers International Lawyers [2024] NSWCA 244

Whall v Stamp [2019] NSWCA 163

Category:

Principal judgment

Parties:

Yan Lin Yang (Appellant) (Self-represented)
New South Wales Land and Housing Corporation (Respondent)

Representation:

Counsel:
A Bhasin (Respondent)

Solicitors:
MinterEllison (Respondent)

File Number(s):

2024/381648

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

Yang v New South Wales Land and Housing Corporation [2024] NSWSC 428

Date of Decision:

23 April 2024

Before:

Ierace J

File Number(s):

2019/251487

JUDGMENT

1. The respondent has sought that this appeal be summarily dismissed because it was filed out of time, is arguably incompetent, and in any event identifies no reasonably or fairly arguable ground of appeal. I accept that, after three attempts, no such ground has been identified by the appellant. The matter should be dismissed on the basis that it was filed out of time and there is no utility in granting an extension of time.

Background

2. Up until February 2013 Mr Yan Lin Yang, the appellant, occupied an apartment he rented from the respondent, the New South Wales Land and Housing Corporation (LHC). In about January 2012 he travelled to China, his original homeland. In February 2012 he was arrested in that country on a charge of smuggling, although he believed he was arrested for political reasons. He was held in prison until 15 March 2012 when he was granted bail. He was still subject to some restrictions on his movement and was not able to leave the country. He was found not guilty or the charges were dropped (it is not entirely clear which) in May 2013. Mr Yang was able to return to Australia on 6 July 2013, after having his passport returned to him.

3. For at least a significant period after he was arrested he did not pay rent to LHC. His rent had been taken out of payments he received from Centrelink but it seems that those payments ceased whilst he was overseas. He became aware that rent payments had ceased in a phone call with a representative of LHC in December 2012 or January 2013. He claimed he asked for details of what bank account he should direct payments into but the representative hung up. In any event, he made no further efforts to organise rental payments. As a result LHC moved to terminate his lease, which occurred with effect from 25 January 2013.

4. In early February 2013 LHC organised for a valuer to enter the apartment in order to assess the value of Mr Yang’s possessions for the purposes of sale so as to meet his outstanding rental obligations. In his apartment were Chinese antiquities, many of which he had inherited, of some value. In the proceedings below he said they were worth millions of dollars. There is some support for the claim that they were very valuable, as described below.

5. It is not in dispute that a troubling event then occurred. In the two weeks or so after the valuer had visited the apartment it was broken into. The valuer returned on 19 February 2013. In his words, “all the ceramics, bronzes and other ornaments and works of art [were] missing”, and there were empty jewellery boxes on the bed, where the valuer said he had not previously known there was jewellery in the premises. As the valuer said, whilst some furniture remained, “the overall value was all in the missing items”. The burglary was seemingly reported to the police. It is not apparent what, if any, action the police took. LHC auctioned the remaining items on 9 March 2013.

6. Mr Yang commenced proceedings against LHC in the Supreme Court on 13 August 2019 claiming damages for the loss of his valuable goods. I understand that the claims were for breach of various duties and in conversion. He was legally represented in the proceedings below but appeared for himself in this Court. In its defence LHC claimed, amongst other things, that the proceedings should be dismissed because they were brought outside the 6 years limitation period that applied under s 14(1) of the Limitation Act 1969 (NSW). The parties ended up agreeing that the cause of action had accrued by no later than 9 March 2013, when Mr Yang’s remaining goods from his apartment were sold at auction. Working off that date, Mr Yang’s claim was filed five months and four days out of time.

7. Section 52(1) of the Limitation Act provides that the running of a limitation period is suspended whilst the person is under a “disability”. Section 11(3)(b) of the Limitation Act relevantly provides that a person is under a “disability” whilst they are, for a continuous period of 28 days or more, incapable of or substantially impeded in the management of their affairs in relation to the cause of action by reason of: (i) any disease or any impairment of their physical or mental condition; or (ii) restraint of their person, lawful or unlawful.

8. Mr Yang filed a reply in which he pleaded that he was under a disability within the meaning of ss 11 and 52 of the Limitation Act in two respects: first, when he said he was incarcerated in China; second, in relation to a major depressive disorder. The first of these related to what was identified below as the “first period”, being from 9 March 2013 to 6 July 2013 (ie from the day by which the cause of action must have accrued up until Mr Yang’s return to Australia). The second related to the “second period”, said to run from 1 January 2014 to 31 March 2017.

9. An order was made for determination of a separate question with respect to whether the proceedings were statute-barred: see Yang v New South Wales Land and Housing Corporation [2020] NSWSC 1925. The primary judge, Ierace J, determined that question adversely to Mr Yang and dismissed the proceedings as being statute-barred: Yang v New South Wales Land and Housing Corporation [2024] NSWSC 428 (J). The case was heard over three days in late March and early April 2024 and decided promptly, judgment being delivered on 23 April 2024.

10. As to the first period, the primary judge noted that Mr Yang had been released from detention on bail from March 2012 (J [89]). His Honour found that although the restrictions imposed by the Chinese authorities impeded his ability to contact a legal representative in Australia to commence an action, Mr Yang had not suggested that there was a blanket ban on him communicating with persons or agencies in Australia throughout the period in question (J [94]). Invoking this Court’s decision in Karaagac v GRE Insurance Limited [1989] NSWCA 116, his Honour held that mere impediment (as opposed to a substantial impediment) was not sufficient to establish a disability in the relevant sense, found that Mr Yang was not restrained from contacting an Australian lawyer in the period in question, and concluded that Mr Yang was not under such a disability in the relevant sense for the first period of 9 March 2013 to 6 July 2013 (J [95]-[98]). It may be noted that even if Mr Yang was to be found to have been under a disability for the period he was in China, he still would have been out of time when he filed his claim on 13 August 2019, as that date is more than six years later than 6 July 2013.

11. As to the second period, in relation to which Mr Yang claimed that he was under a disability by virtue of having a major depressive disorder, there was no dispute that he had suffered from such a disorder to some extent for at least some of the time claimed. He had been an involuntary patient in St Vincent’s Hospital between 17 and 23 November 2016. The primary judge found as follows:

[103] … [Certain judicial observations] throw into sharp focus the evidence of the legal correspondence in the second alleged period of disability as to whether, at a practical level, in spite of any depressive disorder, the plaintiff was able to attend to the necessary tasks for the action to be brought in time. The correspondence demonstrates that the plaintiff attended legal conferences and communicated by telephone and email with his legal representatives. His legal representatives acknowledged his instructions and provided him with written and oral advice. Occasional references to him not responding to requests from his legal representatives were not at a level that would suggest a substantial impediment in the progression of the case.

[104] It appears that his primary task by way of preparation for commencing an action against the defendant was to assist in obtaining evidence of the purchase of the goods and their value. I note that emails generated in February 2017 between the plaintiff and his solicitor demonstrate that the plaintiff was engaged in gathering evidence of his loss, including arranging a conference with him to discuss material that he had obtained.

[105] The legal correspondence suggests that, whatever the plaintiff’s degree of depressive disorder in the second alleged period of disability, he was not substantially impeded in managing his affairs and taking the necessary steps to commence the action by filing the statement of claim, except for the period of his involuntary admission to St George’s Hospital [sic – St Vincent’s Hospital], which is below the threshold of a continuous period of at least 28 days required by s 11(3) of the Limitation Act. In my view, the plaintiff has not displaced the effect of that evidence and thus has not established that he was under a disability in the sense required in s 11(3)(b) of the Limitation Act in the second alleged period of disability.

12. On 10 October 2024 Mr Yang filed in this Court, out of time, a notice of appeal. Mr Lin Chern Tan, LHC’s solicitor, said in an affidavit that the notice was not served on LHC and consequently it was unaware of the commencement of the appeal proceedings until it received a notification of the listing of the matter from the Court on 27 November 2024. LHC then obtained the notice of appeal from the Court on 3 December 2024. At a directions hearing before the Registrar on 4 December 2024 counsel for LHC indicated that the notice of appeal appeared to be incompetent, but there was no opposition to Mr Yang being given an opportunity to amend it to address the deficiencies. Leave was granted to Mr Yang to file and serve an amended notice of appeal by 11 December 2024. On that date Mr Yang duly filed an amended notice of appeal.

13. On 16 December 2024 LHC filed a motion seeking that the appeal be dismissed as incompetent, and further or alternatively that the amended notice of appeal be struck out.

14. On 3 February 2025 the motion was listed before McHugh JA. His Honour made orders, by consent, that the motion be stood over (with any necessary amendments), and allowed Mr Yang an opportunity to file and serve any further amended notice of appeal, any application for extension of time and an application seeking leave to appeal. On 3 March 2025 Mr Yang filed and served an affidavit by him (it is dated 25 February 2025 on the front page but was made on 3 March 2025). Annexed to the affidavit, amongst other things, was a summons seeking leave to appeal, along with a proposed further amended notice of appeal (albeit headed “amended notice of appeal”). Neither document was filed in its own right. In both of those documents Mr Yang sought that time for filing an appeal be extended.

15. On 19 March 2025 LHC filed an amended notice of motion seeking the following orders:

1. The application for an extension of time be refused and the appeal be dismissed as incompetent.

2. Alternatively, the proposed appeal be summarily dismissed as frivolous, vexatious, disclosing no reasonable grounds and/or as an abuse of process.

3. Further in the alternative, the amended notice of appeal dated 3 March 2025 be struck out.

4. Costs of the motion and the appeal.

5. Any further or other order the Court considers appropriate.

16. These raised three interconnected issues:

1. Is leave to appeal required and, if so, should the appeal be dismissed as incompetent by reason of no summons seeking such leave having been formally filed?

2. Should an extension of time be granted for the filing of a summons seeking leave to appeal and/or for the original notice of appeal?

3. Should Mr Yang’s appeal be summarily dismissed or the latest iteration of the notice of appeal be struck out?

17. LHC provided clear written submissions in support of its motion. As explained below, it accepted that it was the third issue which was determinative.

18. Mr Yang did not provide written submissions but, as was pointed out by counsel for LHC, parts of his affidavit of 3 March 2025, along with another affidavit of his made on 30 January 2025 (albeit with the date 10 January 2025 on the front), were in the nature of submissions. Both of those affidavits were read by Mr Yang on the motion.

The claim the appeal is incompetent

19. LHC asserted that Mr Yang needed to seek leave to appeal. It accepted that that “the weight of authority is to the effect that leave is not required, or would readily be granted” where the determination of a separate issue led to consequential orders which resolved the proceeding as a whole. It referred in that regard to Whall v Stamp [2019] NSWCA 163 at [14]. It thus did not allege that the appeal was incompetent on that basis.

20. However, it did allege that the appeal was incompetent on the basis that there was no realistic prospect of obtaining $100,000 or more as a result of the appeal: cf Supreme Court Act 1970 (NSW), s 101(2)(r); Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80(4)]. It referred to evidence tendered below that some of Mr Yang’s former lawyers (he has had more than one set of solicitors) assessed the value of his claim to be no more than $15,300.

21. However, attached to Mr Yang’s affidavit of 3 March 2025 is an affidavit of Mr Wayne Ricketts sworn on 12 March 2023. It was not read in the hearing below, but it was not pertinent to the limitation period issue. Mr Ricketts is a retired valuer and dealer of Chinese antiques who had known Mr Yang for 25 years at the time he made the affidavit. Mr Ricketts had visited Mr Yang’s residence more than 20 times and had engaged in transactions with him involving antique items. Of the valuable antiques which Mr Yang claimed were lost due to the fault of LHC, Mr Ricketts confirmed he saw some at Mr Yang’s apartment, but candidly admitted that he had not seen others. The ones he did see were valued by him at an amount well above the $100,000 threshold. There is thus real reason to doubt that leave to appeal is required.

22. It is not necessary for me to resolve the point. Mr Yang belatedly sought leave to appeal by way of the summons seeking leave to appeal. True it is that the document was only attached to his affidavit filed on 3 March 2025, and was not formally filed. Yet LHC has not sought to identify any prejudice caused by that procedural irregularity. Nor has it identified any additional prejudice by the later provision of that document beyond such prejudice as it suffered by the late filing of the notice of appeal. Thus in substance the competency issue, at highest for LHC, leads to the extension of time issue.

Extension of time

23. The decision of Ierace J was handed down on 23 April 2024. Mr Yang did not file a notice of intention to appeal. Any notice of appeal was thus required to be filed and served by 21 May 2024: Uniform Civil Procedure Rules 2005 (NSW) (UCPR) rr 51.10(1)(b) and 51.16(1)(c). Mr Yang’s notice of appeal was filed on 10 October 2024, some four and a half months late. As noted, LHC was not served with it, but first learned of the proceeding on 27 November 2024. No extension of time was sought in that document. Nor was an extension sought in relation to his amended notice of appeal filed on 11 December 2024. It was in his affidavit of 3 March 2025 and the attached documents that he first sought an extension.

24. As Ward JA said in Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406, at [42], where leave to extend time to appeal is concerned the Court is to have regard to what the interests of justice require in all the circumstances of the case, including “the reason why the appeal was not lodged in time; the period for which an extension is sought; any prejudice to the opposing party; and the apparent prospects of success on the appeal”, where the latter issue involves considering whether there is a “fairly arguable case” in circumstances where there was a reasonable explanation for the delay and no significant prejudice.

25. Mr Yang’s reasons for filing his appeal proceedings late are “medical issues and procedural misunderstandings”. As to the latter, he said that he attempted to file his original notice of appeal on 21 May 2024 whilst he was within time. At the time he sought to apply for a waiver of the filing fee, for which the registry staff asked him to fill out an application form. Rule 4.10(5)(b) of the UCPR provides that in the case of a document for which a filing fee is payable, if the officer of the court is not satisfied that arrangements have been made for the payment of such fee then they may refuse to accept the document. It seems Mr Yang mistakenly believed that whilst his fee waiver application was being considered his attempted filing was valid. As for his medical issues, he provided evidence that he was admitted as an inpatient in two hospitals in nearly the whole of the period from 29 May 2024 to 30 September 2024. These explanations were not challenged by LHC.

26. Mr Yang has thus provided a reasonable explanation for the delay in filing his notice of appeal. The delay was significant but not substantial. Counsel for LHC accepted that LHC did not assert any prejudice beyond that caused by the continuing lapse of time from the events giving rise to the dispute, which occurred some 12 years ago. In those circumstances there are reasons to grant the extension sought, subject to considering the utility of any such extension. Counsel for LHC thus accepted that his client’s application rose or fell on the success of the arguments about summary dismissal.

Whether there is a reasonably or fairly arguable case

27. Rule 13.4(1) of the UCPR confers power on the Court to order that proceedings be dismissed generally if, amongst other things, no reasonable cause of action is disclosed. This rule applies to appeals: Asuzu at [56]. The Court possesses such powers more generally, including powers to strike out documents, in exercise of the jurisdiction conferred by s 23 of the Supreme Court Act 1970 (NSW). The power of summary dismissal must be exercised with caution and only in clear cases: note eg Asuzu at [113]-[117].

28. The issue is to be considered in the context of r 51.18 of the UCPR, which requires that a notice of appeal must state “briefly, but specifically, the grounds relied on in support of the appeal”, along with “any material facts that the appellant contends that the court below should, or should not, have found”. The rule requires that the grounds of appeal identify in succinct but clear terms the errors alleged to have been made by the court below: Warne v ACN 603 541 411 Pty Ltd t/a Chandlers International Lawyers [2024] NSWCA 244 at [12]. As was said in Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62 at [30]:

One of the purposes of grounds of appeal is to inform the appellate court and the respondent in a brief and precise manner of the basis of the challenge to the relevant findings of fact and law of the court below. It is not enough merely to allege that the primary judge erred in law or fact. The grounds must identify the respects in which those errors occurred.

29. LHC submitted that Mr Yang’s further amended notice of appeal did not disclose any reasonably or fairly arguable ground of appeal. It further argued that the same was true of the earlier two iterations of the notice of appeal, such that Mr Yang should not now be given a further chance to seek to articulate his claim.

30. In light of that argument it is appropriate to start by referring to Mr Yang’s first iteration of his notice of appeal, filed on 10 October 2024. It set out one ground, asserting that the decision of the primary judge was:

based on “improper admission or exclusion evidence by the judge” which caused plaintiff is facing medical emergencies, severe family problem and catastrophe. This appeal with the grounds relied on in support of appeal.

The judge made a ruling based on incomplete and inaccurate evidence.

31. This ground is at most a vague criticism of how the primary judge dealt with unspecified evidence. It does not amount to a properly articulated ground of appeal, identifying error made below. Some limited insight as to the substance of Mr Yang’s complaint may be gained by reference to the “orders sought”, beyond that the appeal be allowed, which were as follows:

Request for evidence collection and new judgment and order in accordance with:

1) Limitation Act 1969 (NSW) s 11(3)(ii)

2) Limitation Act 1969 (NSW) s 55 Fraud and deceit (1)(b)

3) Residential Tenancies Act 2010 (NSW) s 88(3)

4) Residential Tenancies Act 2010 (NSW) s 89(1)-(4)(a)-(b)

5) Residential Tenancies Act 2010 (NSW) s 87(4)(b)-(c)

6) Residential Tenancies Act 2010 (NSW) s 87(5)(a), (c)-(e)

32. Section 55(1)(b) of the Limitation Act concerns, relevantly, where the cause of action has been fraudulently concealed. No such allegation was made below, in a context where Mr Yang’s answer to the limitation defence was pleaded by way of a reply, and where any such allegation is serious and would need to have been raised in clear terms (noting r 15.3 of the UCPR) so as to give LHC a fair chance to respond to it, including by way of evidence. In that context it is not now open to Mr Yang, on appeal, to seek to raise a new argument that LHC had fraudulently concealed his cause of action from him. As for the provisions of the Residential Tenancies Act identified in the notice of appeal, they relate to termination of a residential tenancy agreement. They are not relevant to the limitation issue. It will be recalled that it was agreed below that Mr Yang’s cause of action had accrued no later than 9 March 2013.

33. Mr Yang’s amended notice of appeal, filed on 11 December 2024, identified a similar appeal ground and similar proposed orders. Under the heading “appeal grounds” it stated:

The court incorrectly applied the law and my statues [sic – statutes?] were ignored and misunderstood. It caused plaintiff to face medical emergencies, severe family problem and catastrophe.

34. This purported ground suffers the same defect as the previous one. Then under “orders sought” it was said:

With respect to Limitation Act 1969 NSW 11(3)(ii), the law says that “restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1958, I believe that I cited a correct law.

The court cited and applied Limitation Act 1969 s 52, which is an incorrect law applied to my case. Therefore, I need to overturn the decision by the court on 23 April 2024.

35. The meaning of the first paragraph is unclear. The second paragraph suggests that s 52 of the Limitation Act – which Mr Yang himself invoked in the proceedings – was not the provision which should have been applied. It may be that Mr Yang was again suggesting that s 55(1)(b), relating to fraudulent concealment, was relevant. In any event, the amended notice of appeal does not identify any reasonably or fairly arguable grounds of appeal.

36. Subsequently, in Mr Yang’s affidavit of 30 January 2025 he said the following, in what may aptly be characterised as a submission:

[6] The Respondent’s reliance on Section 52 of the Limitation Act 1969 (NSW) is misplaced in my case. The Respondent [sic – Appellant] does not meet the definition of “under a disability” as outlined in Section 52. Medical evidence clearly demonstrates that while the Appellant experienced anxiety and deep depression, this condition did not render the Appellant incapable of managing their affairs as required under the statute. Instead, the delay in commencing proceedings was caused by the Respondent’s concealment, delayed discovery of the cause of action.

Further, it is submitted that Section 55 or 56 of the Act are more appropriately applicable to this matter, given the factual circumstances surrounding the Applicant’s delayed awareness of their rights. Rigid application of Section 52 would result in an unjust outcome, contrary to the principles of equity and fairness. I respectfully request that the Court consider my case in light of the alternative provisions of the Act, which better align with my application’s circumstances.

37. This submission appears to involve abandoning any reliance on s 52 of the Limitation Act, as was invoked below, instead invoking ss 55 and 56. Section 56 of the Act relates to causes of action for relief from the consequences of a mistake. Section 56 was not invoked below. Again, as for the reliance on s 55, it would raise significant factual issues beyond what was in dispute below, and it is not open to raise it now on appeal.

38. In Mr Yang’s further amended notice of appeal, provided as an annexure to his affidavit of 3 March 2025, the revised grounds of appeal read:

1. The Appellant is against the court’s decision and believes that “The plaintiff was not under a disability for the purpose of 52 of the Limitation Act 1969 (NSW) between 9 March 2013 and 13 August 2019 for a period of at least 28 days” was incorrectly cited [sic – decided]. During that period of time, the appellant was incarcerated in China. The decision caused the appellant to face enormous loss of properties and severe family problem. And the decision made the appellant with his mental health worse to be hospitalised for over 4 months.

2. The Court failed to consider relevant evidence and applied the law unfairly. The Limitation Act 1969, NSW s 11(3)(ii) and Residential Tenancies Act 2010 (NSW) ss 87 and 88(3) should be also considered to apply to the case.

39. The decision below did not refer to any evidence that Mr Yang had been hospitalised for over four months prior to him filing his statement of claim. It appears that he is referring to his period of hospitalisation last year, which is not relevant to whether or not the limitation period was suspended for a period prior to 13 August 2019. That understanding is supported by the fact that the last two sentences of ground 1 refer to “the decision” causing certain consequences, which seems to refer to “the court’s decision” as identified in the first sentence of that ground.

40. In his affidavit of 3 March 2025, Mr Yang said (emphasis added; name of LHC officer redacted):

[13] On 19 December 2012, when I was detained in Tianjin, China, XX from the Housing Department contacted Australian Embassy in Beijing and she had been officially informed that I was incarcerated in China. The Housing Department applied to the Tribunal for Termination of my tenancy agreement without mentioning that I was detained in overseas and incapable to pay my rent. Such action were considered as concealments. …

[14] The Housing Department gained the confirmation that I was incarcerated overseas, they deliberately sent numerous letters to my local address in Kingswood. I was never be informed. I had never received any letters, emails from The Housing Department since then.

[15] Under the help of the Australia Embassy in Beijing, PRC I started to contact the Land and Housing by telephone conversation, with XX on 16 January 2013 while I was in jail. In regarding of the payment of my rent, I informed XX that I was willing to pay the rent of where I lived and asked XX to pass the bank details to me in order to finalise the payment issue. XX never replied to me with my request directly, instead, she insisted on asking me that when I could come back to Australia. XX also states that I confirmed and said “there is nothing of value in my property” I solemnly stated here that I had never ever said that. XX was lying on her reports and continued to use that untrue indication in later illegal actions.

41. Those passages are followed by more detailed allegations to the effect that LHC colluded with the valuer it engaged to stage a burglary at Mr Yang’s rented premises, under the guise of which they stole the goods in question. It was said, amongst other things, that “[s]uch an action was definitely Fraud and Deceit”. Those allegations indicate that Mr Yang seeks to raise a fraudulent concealment point under s 55(1)(b) of the Limitation Act.

42. As for the references in the further amended notice of appeal to the Residential Tenancies Act, for reasons explained above at [32] they are not to the point where the appealed decision was that the claim was time-barred.

43. The further amended notice does refer to ss 11(3)(ii) and 52 of the Limitation Act, albeit s 52 is referred to only when quoting the order made by the primary judge in determination of the separate question. In any event, the complaint then identified in ground 1 is that during the period in question “the appellant was incarcerated in China”. As noted above at [10], even if Mr Yang was found to have been under a disability for the whole of the time he was in China that would not suffice by itself to establish that his claim was not statute-barred.

44. Whilst ground 2 says that “[t]he Court failed to consider relevant evidence and applied the law unfairly”, it does not identify any particular respect in which that is so. Given what Mr Yang said at [6] of his affidavit of 30 January 2025 (quoted above at [36]), which he relied on in this application before me, it appears that he is not seeking to complain about how the primary judge determined the disability issue with respect to the second period relating to Mr Yang’s depressive disorder.

45. I asked Mr Yang about that passage in his affidavit and in that context the following exchange occurred:

HIS HONOUR: So you’re seeking - I’m just trying to understand what your arguments are in terms of identifying what Ierace J got wrong in his decision, okay? That’s what I’m trying to clarify. Do I understand that you are not saying Ierace J was wrong in what he said about your major depressive disorder? Or are you saying he was wrong about that?

RESPONDENT: Okay. I think he is wrong there for two reason. One reason is the Residential Tenancies is the law talking about either people in the gaol - they have other ways to - to treat this act that happened when the people in the overseas. That they according to the part Limitation part 6 division 2 is talking about the Housing Department that treat me the action. The second is they talking about the disability, I’m not in 28 days continued in disability situation. So in fact I was in China in gaol. In that special period of time I’m in the gaol all 35 days during that period of time. I’m definitely in the gaol in that time and Housing Department exactly knows I’m in China but they go to the tribunal to make a report saying I didn’t pay the rent. So there’s two points I disagree with the judge make the decision. So this is why I want appeal.

46. Whilst by no means clear, the exchange tends to confirm that Mr Yang’s challenge on appeal concerns only the incarceration issue, tied to allegations that LHC knew about this and acted improperly, and some point about residential tenancy laws. It does not involve an argument that the limitation period was suspended during the second period of time because of his depressive disorder.

47. In sum, Mr Yang has made three attempts to articulate grounds of appeal. None of those attempts properly identify grounds of appeal, beyond some attempt to (a) raise matters not in issue below and which cannot now be raised on appeal, and (b) raise matters relating to the period whilst he was in China, which period by itself would not suffice to establish that the proceeding was not statute-barred. There is no reason to think that giving him another opportunity to attempt to produce a notice of appeal will lead to a different result.

Orders

48. Mr Yang has given a reasonable explanation for the delay in filing his notice of appeal and no distinct prejudice has been caused to LHC by that delay. However, there is no utility in granting an extension as he has been unable to demonstrate a reasonably or fairly arguable case on appeal after three attempts to do so. There is no reason why costs should not follow the event.

49. The orders of the Court will be as follows:

1. The application for an extension of time for filing of the notice of appeal is refused and the appeal is dismissed.

2. The appellant is to pay the respondent’s costs of its motion and the appeal.

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Decision last updated: 04 April 2025