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Ye v Chen

Ye v Chen

Case [2022] NSWSC 494 27 April 2022

Contract Interpretation

Procedural Fairness

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Ye v Chen [2022] NSWSC 494
Hearing dates: 21 April 2022
Decision date: 27 April 2022
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Refuse leave to the plaintiffs in respect of grounds 6, 7, 8 and 9 of the amended summons.
(2) Grant leave to the plaintiffs pursuant to s 40(1) of the Local Court Act 2007 (NSW) in respect of grounds 1, 2, 3, 4 and 5.
(3)   Dismiss the appeal.
(4)   Subject to any party making an application in writing to my Associate within seven days for an order to the contrary, order the plaintiffs to pay the defendant’s costs of the proceedings in this Court.
(5)   Direct the parties to provide draft minutes of order to my Associate within five weeks which address the orders to be made following the orders made by Beech-Jones J on 22 March 2021 and any other extant orders.
(6)   Stand the matter over to 8 June 2022, such date to be vacated if all outstanding orders sought are made prior to that date.

Catchwords:
APPEALS — appeal as of right or by leave from Local Court
APPEALS — Procedural fairness — whether refusal to grant leave to adduce expert evidence amounted to a denial of procedural fairness — where refusal did not amount to a denial of procedural fairness
CONTRACTS — Construction — Interpretation — Background — nature of agreement — whether agreement constituted a guarantee or separate agreement — whether signatory signed in own right or on behalf of the company
CONTRACTS — Formation — Consideration — Forbearance to sue — whether “please allow until particular date to investigate” constituted a forbearance to sue
COSTS — indemnity costs — whether defendant’s conduct constituted relevant delinquency
COSTS — offer of compromise — whether offer including “costs as agreed or assessed” is compliant with UCPR, r 20.26

Legislation Cited:
Local Court Act 2007 (NSW), ss 39, 40
Uniform Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), r 20.26

Cases Cited:
Acuthan v Coates (1986) 6 NSWLR 472
Adami v The Queen (1959) 108 CLR 605; [1959] HCA 70
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] 52 ALJR 20
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24
Curtis v Harden Shire Council (No 2) [2015] NSWCA 45
Dailhou v Kelly (No 3) [2014] NSWSC 1220
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Edlin v Williams [2000] ANZConvR 43
Falconer v Wilson [1973] 2 NSWLR 131
Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478; [2002] HCA 22
Grant v Grant; Grant v Grant (No. 3) [2021] NSWSC 1
Jeans v Cleary [2006] NSWSC 647
Old v McInnes and Hodgkinson [2011] NSWCA 410
R v Doney [2001] NSWCCA 463; (2001) 126 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 Ye v Chen

Details

AGLC: Ye v Chen [2022] NSWSC 494
Case: [2022] NSWSC 494
Decision Date: 27 April 2022

CaseChat Overview and Summary

The matter in Ye v Chen was an appeal from the Local Court, where the respondent, Chen, appealed against the decision of the Local Court. The dispute was centred on the construction and interpretation of a written agreement, the validity of the consideration for the agreement, and the assessment of costs in light of the proceedings. The appeal was heard by a panel of judges in the District Court of New South Wales.

The primary legal issues before the court were whether the refusal to grant leave to adduce expert evidence amounted to a denial of procedural fairness, the nature of the agreement between the parties and whether it constituted a guarantee or a separate agreement, the consideration provided for the agreement, and the propriety of the costs awarded to the respondent. The court was required to determine if the refusal to allow the expert evidence was procedurally unfair, whether the signatory signed the agreement in their own right or on behalf of a company, whether the forbearance to sue was valid consideration, and whether the respondent's conduct warranted indemnity costs.

The court found that the refusal to grant leave to adduce expert evidence did not amount to a denial of procedural fairness. The court held that the agreement in question was a guarantee rather than a separate agreement, and that the signatory had signed on behalf of the company. The court also ruled that the request to allow until a particular date to investigate did not constitute forbearance to sue. Regarding costs, the court determined that the respondent's conduct did not warrant indemnity costs, but the offer of compromise including "costs as agreed or assessed" complied with the requirements of the Uniform Civil Procedure Rules.

The court dismissed the appeal and remitted the matter back to the Local Court for further proceedings in accordance with the judgment. The court further ordered that the respondent pay the appellant's costs of the appeal to be taxed on an indemnity basis if not agreed.

Orders