Yang v Yue - [2021] VSC 740

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2020 04101

ZHILONG YANG and MEILING ZHANG	Plaintiffs
v
JUN YUE and others (according to schedule)	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2021
DATE OF JUDGMENT:	16 November 2021
CASE MAY BE CITED AS:	Yang v Yue
MEDIUM NEUTRAL CITATION:	[2021] VSC 740

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PRACTICE AND PROCEDURE – Appeal from judicial registrar dismissing application for summary judgment – Hearing de novo – Whether defendants’ defence to stay proceeding has no real prospect of success – Where parties provided differing translations of agreement – Where defendants’ defence regards choice of law and jurisdiction – Whether choice of law is exclusive – Whether choice of law should be overruled for reasons of public policy – Whether location of property impacts choice of law or jurisdiction – Where plaintiffs submitted there is no rule of law in China – Whether defendants submitted to the jurisdiction – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr L Magowan	Lin Legal & Associates
For the First to Fourth Defendants	Mr M Singh (solicitor)	Dhillon Legal
For the Fifth Defendant	No Appearance

TABLE OF CONTENTS

A. Introduction.................................................................................................................................. 1

B. The terms of the agreement........................................................................................................ 2

B.1.The background to the dispute........................................................................................... 2
B.2.Choice of law and choice of jurisdiction........................................................................... 5
B.2.1.What did the parties agree?.................................................................................... 5
B.2.2.Is the proper law of the contract different from that chosen?........................... 8
B.2.3.Should the parties be held to the agreement to litigate in China?.................. 12
B.2.4.Have the defendants ‘submitted to the jurisdiction’?....................................... 14

B.3.Conclusion........................................................................................................................... 16

C. Final comments........................................................................................................................... 16

HIS HONOUR:

A. Introduction

The plaintiffs are a married couple with Australian permanent residency and a property in Southbank. They have been in China throughout the COVID-19 pandemic and remain there. The first and second defendants are the registered proprietors of three properties in Victoria, and the second defendant is the registered proprietor of a fourth property in Southbank where the first and second defendants reside. The third defendant is their son, and the fourth defendant (‘the company’) is an Australian company owned by them with a registered office in Victoria. The company owns the Magnolia Court Boutique Hotel in East Melbourne. When I refer to ‘the defendants’, I am referring to the first to fourth defendants.[1]
[1]By letter dated 16 November 2020, the registrar of titles, the fifth defendant, informed the Court that she did not intend to appear in this proceeding.

The plaintiffs allege that they are owed money by the first and second defendants, that the debt is guaranteed by the third defendant and the company, and that they have security interests in the properties. The plaintiffs rely on a signed agreement dated 31 May 2018 that is in Chinese. The plaintiffs have lodged caveats over the first and second defendants’ properties. A transfer for one of the properties has been lodged with the registrar of titles, the fifth defendant, for registration. The plaintiffs…

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 Yang v Yue

Details

AGLC: Yang v Yue [2021] VSC 740
Case: [2021] VSC 740
Decision Date: 16 November 2021

CaseChat Overview and Summary

Yang v Yue is an appeal against a decision of a judicial registrar who dismissed an application for summary judgment. The dispute involves the interpretation of an agreement between the parties, where differing translations were provided. The court was required to decide whether the defendants' defence to stay the proceedings had no real prospect of success. This involved assessing the defendants' arguments regarding the choice of law and jurisdiction, including whether the choice of law was exclusive and whether it should be overruled for reasons of public policy. Additionally, the court considered whether the location of the property impacted the choice of law or jurisdiction, and whether the plaintiffs' submission about the absence of a rule of law in China was relevant.

The court determined that the judicial registrar correctly assessed the prospects of success of the defendants' defence. The defendants argued that the choice of law clause in the agreement should be enforced, and that the proceedings should be stayed due to the location of the property in China. The court found that the defendants had not demonstrated that their defence had no real prospect of success, as the issues of choice of law and jurisdiction were complex and required further investigation. The court also noted that the plaintiffs' argument about the absence of a rule of law in China did not necessarily impact the enforceability of the choice of law clause.

The appeal was ultimately dismissed, with the court affirming the decision of the judicial registrar. The court held that the defendants had not shown that their defence had no real prospect of success, and that the issues of choice of law and jurisdiction required further examination. The court also found that the plaintiffs had not demonstrated that the defendants had submitted to the jurisdiction, and that the location of the property did not necessarily impact the choice of law or jurisdiction. Overall, the court found that the judicial registrar had correctly exercised his discretion in dismissing the application for summary judgment.

Orders