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Ye v Chen

Ye v Chen

Case [2021] NSWSC 1098 31 August 2021

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Appeal

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Ye v Chen [2021] NSWSC 1098
Hearing dates: 1 July 2021
Date of orders: 31 August 2021
Decision date: 31 August 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) Ms Chen’s amended notice of motion filed 18 June 2021 is dismissed.
(2) The defendant is to pay the plaintiffs’ costs on an ordinary basis.

Catchwords:
PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1) and 50.16A – Application for dismissal – Whether proceedings frivolous or vexatious – Whether appeal grounds are incompetent – Application dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 58, 98
Local Court Act 2007 (NSW), ss, 39, 40
Uniform Procedural Rules 2005 (NSW) rr 2.1, 13.4, 50.16A

Cases Cited:
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; [1987] HCA 15
Bofinger v Kingsway Group Ltd (2009) 239 CLR 424; [2009] HCA 44
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1965] ALR 636; (1964) 38 ALJR 253; [1964] HCA 69
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 222
Khana v Sabi Foods International (Aust) Pty Ltd [2016] NSWSC 1009
Makucha v Sydney Water Corporation [2013] NSWCA 177
O’Brien v Bank of Western Australia Ltd (2013) 16 BPR 31,705; [2013] NSWCA 71
Spencer v Commonwealth (2010) 241 CLR 118; (2010) 269 ALR 233; (2010) 84 ALJR 612; [2010] HCA 28

Category: Procedural rulings
Parties: Rebecca Ye (First Plaintiff)
Ucer Investment and Resources and Management Pty Ltd (Second Plaintiff)
Yu Chen (First Defendant)
Representation: Counsel:
A Cheema (Plaintiffs)
J. Harrison (Defendant)
Solicitors:
Prudential Legal (Plaintiffs)
Auburn Lawyers (Defendant)

File Number(s): 2021/6370
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

General Division

Date of Decision:

11 December 2020

Before:

Stapleton LCM

File Number(s):

2018/215879

Judgment

HER HONOUR: The defendant seeks a summary judgment by way of an amended notice of motion filed 18 June 2021.
In this Court the first plaintiff is Rebecca Haria Ye, who was the first defendant in the Local Court proceedings. The second plaintiff is Ucer Investment and Resources Management Pty Ltd (“Ucer Investment”), who was the second defendant in the Local Court proceedings. Ms Ye (“Ms Ye”) is the sole director, secretary of the second plaintiff and the appellant in these proceedings. In this Court the defendant is Yu Chen (“Ms Chen”), the plaintiff in the Local Court proceedings and the respondent in these proceedings. For convenience, and ease of understanding, I shall refer the parties by name. As Ms Ye is the directing manager of Ucer Investment, I shall refer to both plaintiffs as Ms Ye. I will refer to Ucer Investment where the claim is only against Ucer Investment. The parties relied upon a joint court book.

The summons

By summons filed 8 January 2021, Ms Ye and Ucer Investment seek orders that:

The judgment in the matter below, including the orders…

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 [2021] NSWSC 1098
Case: [2021] NSWSC 1098
Decision Date: 31 August 2021

CaseChat Overview and Summary

In the case of Ye v Chen, the plaintiff sought dismissal of the defendant’s proceeding under the Uniform Civil Procedure Rules 2005 (NSW), rules 13.4(1) and 50.16A on the basis that they were frivolous or vexatious. The proceedings were heard in the Supreme Court of New South Wales. The primary focus was on whether the plaintiff’s application for dismissal was valid and whether the defendant’s appeal grounds were competent.

The court needed to determine whether the proceedings were indeed frivolous or vexatious, which would justify their dismissal under the cited rules. Additionally, the court had to assess the validity of the defendant’s grounds of appeal, specifically whether they were competent to be considered. This involved an examination of the nature and substance of the defendant's appeal, and whether it complied with the procedural requirements for appeals in the context of the Uniform Civil Procedure Rules.

The court found that the plaintiff's application for dismissal did not meet the criteria for being frivolous or vexatious. It was concluded that the proceedings had merit and were not without substance. Furthermore, the court held that the defendant’s grounds of appeal were competent and properly raised issues that warranted consideration. Consequently, the plaintiff's application for dismissal was dismissed, and the defendant's appeal was allowed to proceed on its merits.

No further orders were made in relation to the proceedings beyond the dismissal of the application and the allowance of the appeal.

Orders