Yap v Chong

Case [2024] FCA 1326

FEDERAL COURT OF AUSTRALIA

Yap v Chong [2024] FCA 1326

File number: WAD 76 of 2024
Judgment of: COLVIN J
Date of judgment: 18 November 2024
Catchwords:

PRACTICE AND PROCEDURE - application to strike out paragraphs of defence - where defence contains repeated pleas that 'respondents will plead in response to the allegations … upon provision of proper particulars thereof' - where no further particulars sought - whether defence evasive or ambiguous - paragraphs of defence struck out - leave granted to replead

COSTS - whether costs should be ordered to be paid forthwith - consideration of principles - costs ordered to be paid forthwith
Legislation:

Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) s 4

Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) rr 16.02, 40.13
Cases cited:

Australian Competition and Consumer Commission v Dateline Imports Pty Ltd [2015] FCAFC 114

Australian Competition and Consumer Commission v Woolworths Group Limited (formerly called Woolworths Limited) [2020] FCAFC 162; (2020) 281 FCR 108

Crowley v Worley Limited [2022] FCAFC 33; (2022) 293 FCR 438

Dare v Pulham (1982) 148 CLR 658

Dyczynski v Gibson [2020] FCAFC 120; (2020) 280 FCR 583

Fuji Xerox Australia Pty Ltd v Whittaker [2020] FCA 1611

Girchow Enterprises Pty Ltd v Ultimate Franchising Group Pty Ltd (Final Hearing) [2023] FCA 420

Lin v Zheng [2023] NSWCA 174

O'Brien v Komesaroff (1982) 150 CLR 310

Richmond v Ora Gold Limited [2020] FCA 70

Sharif v Vitruvian Investments Pty Ltd (No 2) [2023] FCA 619

Sykes v Reserve Bank of Australia (1998) 88 FCR 511

Tang v Yu [2024] FCA 297

Watson v Kriticos (Costs Payable Forthwith) [2022] FCA 4
Division: General Division
Registry: Western Australia
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 49
Date of hearing: 6 November 2024
Counsel for the Applicant: Mr AC Willinge with Mr BJ Willesee
Solicitor for the Applicant: Gandhi and Shaw
Counsel for the Respondents: Mr JP Cook
Solicitor for the Respondents: Mendelawitz Morton

ORDERS

WAD 76 of 2024
BETWEEN:

THAI CHOY YAP

Applicant
AND:

JOHN TSE-LIANG CHONG

First Respondent

AUSTRAL MIGRATION CONSULTANCY PTY LTD (ABN 15 601 686 042)

Second Respondent

AUSTRAL MIGRATION CONSULTANCY SDN BHD (MALAYSIAN COMPANY NUMBER 201201032377)

Third Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

6 NOVEMBER 2024

THE COURT ORDERS THAT:

1.Pursuant to rules 16.21(c) and (d) of the Federal Court Rules 2011 (Cth), paragraphs 15, 18, 19, 20, 21, 22, 23, 28, 30, 31, 33 and 34 of the defence dated 12 July 2024 be struck out.

2.The respondents have leave to replead a defence.

3.The respondents file and serve an amended defence on or before 27 November 2024.

4.The matter be listed for a case management hearing on 19 December 2024 at 10.45 am AWST.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


ORDERS

WAD 76 of 2024
BETWEEN:

THAI CHOY YAP

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Details
AGLC
Yap v Chong [2024] FCA 1326
Case
[2024] FCA 1326
Decision Date

CaseChat Overview and Summary

Yap v Chong was a case before the Federal Court of Australia where the plaintiff, Yap, sought to strike out certain paragraphs of the defendant Chong's defence, which contained repeated pleas that Chong would respond to the allegations upon the provision of proper particulars. Yap argued that the defence was evasive and ambiguous, and that Chong had not sought further particulars. The court was required to determine whether the defence was indeed evasive and ambiguous, and whether it adequately disclosed the nature of the defence and the material facts supporting it.

The court found that the defence was evasive and did not adequately disclose the nature of the defence Chong intended to advance. The submissions made in opposition to the interlocutory application further demonstrated that Chong was attempting to advance a defence without disclosing its nature or the material facts supporting it through the pleading. The court concluded that the pleading failed to perform its function of adequately disclosing the nature of the defence and the material facts supporting it. Therefore, the court upheld Yap's application to strike out the paragraphs in question and granted Chong leave to replead.

The court also considered Yap's request for an order that Chong pay the costs of the interlocutory application forthwith. Yap argued that the respondents' position was unorthodox, unreasonable, and resulted in unnecessary delay and costs. The court agreed that this was an appropriate case for ordering costs to be paid forthwith, given the discrete nature of the issues determined on the application and the early stage of the proceeding. The court ordered that Chong pay the costs of and incidental to the interlocutory application forthwith, to be taxed if not agreed.

ORDERS:
1. The respondents do pay the costs of and incidental to the interlocutory application dated 3 October 2024 forthwith, such costs to be taxed if not agreed.

Orders

Orders of the court

1. The respondents do pay the costs of and incidental to the interlocutory application dated 3 October 2024 forthwith, such costs to be taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For reasons that have been given, that approach was misconceived.Conclusion The paragraphs of the defence that have been objected to are evasive. Further, the submissions advanced in opposition to the interlocutory application make plain that the respondents seek to advance a defence the nature of which is not disclosed by the pleading that they have filed. Therefore, the pleading fails to perform its function of adequately disclosing the nature of the defence to be advanced by the respondents. Nor does it disclose the material facts that are said to support that defence. For those reasons, I upheld the application to strike out the paragraphs to which objection was taken.The appropriate order as to costs Mr Yap seeks an order that the respondents pay the costs of the interlocutory application forthwith. The respondents did not oppose an order that the costs of the interlocutory application follow the event. The Rules provide that generally an interlocutory costs order is not to be taxed until the whole proceedings have concluded: r 40.13. As I have noted, there are good reasons for such a general approach: Sharif v Vitruvian Investments Pty Ltd (No 2) [2023] FCA 619 at [4]. However, as I explained in Richmond v Ora Gold Limited [2020] FCA 70 at [28]-[38], there are circumstances in which it may be appropriate to exercise the discretion as to costs by ordering costs to be paid forthwith where an interlocutory application has been unsuccessful. See also the matters listed by Perram J in Watson v Kriticos (Costs Payable Forthwith) [2022] FCA 4 at [7]. The objections raised by Mr Yap and the basis for them was put to those acting for the respondents. As has been explained, the position adopted by the respondents was unorthodox and could not be justified by a proper understanding of what was required in pleading a defence. Yet, those acting for the respondents persisted in maintaining, in substance, that they did not need to put on their defence. In substance, it was a refusal to plead the defence. That course was an unreasonable one to adopt. It resulted in avoidable delay and in unnecessary costs being incurred. Further, those costs have been incurred at an early stage of the proceeding. Consequently, if the usual approach is adopted, it will be some time until those costs might be recovered. Finally, the issues determined on the application are discrete and not of a kind where it is appropriate for the liability to meet those costs to fall in a way that takes account of the ultimate outcome of the proceedings. For those reasons, I am satisfied that this is an appropriate case in which to require the costs to be paid forthwith. I note that the case for Mr Yap was advanced by two counsel. The costs allowed upon any taxation should be confined to the costs of one counsel.

Ratio Decidendi

Legal Principle Established

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