Ye v Chen (No 3) - [2022] NSWSC 761

Supreme Court

New South Wales

Medium Neutral Citation: Ye v Chen (No 3) [2022] NSWSC 761
Hearing dates: 8 June 2022
Decision date: 09 June 2022
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Refuse the application to vary orders (1)(i) and (1)(ii) made on 22 March 2021.
(2) The costs of the application be the respondent’s (defendant’s) costs in the appeal.

Catchwords:
JUDGMENTS AND ORDERS — Enforcement — where defendant successful against two plaintiffs —whether to vary orders staying enforcement pending appeal by one plaintiff — where overriding purpose promoted no variation — no variation to orders made

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56

Cases Cited:
Ye v Chen [2021] NSWSC 272
Ye v Chen [2022] NSWSC 494
Ye v Chen (No 2) [2022] NSWSC 630

Category: Consequential orders
Parties: Rebecca Haria Ye (First Plaintiff)
Ucer Investment and Resources Management Pty Ltd (Second Plaintiff)
Yu Chen (Defendant)
Representation:
Counsel:
A Cheema (Plaintiffs)
J Harrison (Defendant)
Solicitors:
Auburn Lawyers (Plaintiffs)
Prudentia Legal (Defendant)

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

Court or tribunal:

Local Court

Date of Decision:

11 December 2020

Before:

Stapleton LCM

File Number(s):

2018/215879

Judgment

Introduction

Rebecca Ye, the first plaintiff, and Ucer Investment and Resources Management Pty Ltd, the second plaintiff (Ucer), sought leave to appeal against a judgment in favour of Yu Chen, the defendant, entered against them in the Local Court by Stapleton LCM on 11 December 2020. On 27 April 2022, I granted the plaintiffs leave to appeal on some grounds, but dismissed the appeal: Ye v Chen [2022] NSWSC 494 (the principal judgment). On 20 May 2022, I ordered the plaintiffs to pay the defendant’s costs of the proceedings: Ye v Chen (No 2) [2022] NSWSC 630. Ms Ye, but not Ucer, has sought leave to appeal to the Court of Appeal against my judgment. Her summons for leave to appeal is returnable on 4 July 2022 before the Registrar of the Court of Appeal.
Ms Chen applied to have certain amounts released to her in satisfaction of her judgment against Ucer, which is not the subject of an application for leave to appeal. Before addressing whether she is entitled to release of the funds, it is necessary to set out in summary form the background to the orders.

Relevant procedural history

The judgment sum ordered by the Local Court was $72,350.66 together with interest, which, by 9 February 2021, amounted to $3,668.67. The plaintiffs filed a summons for leave to appeal in this Court on 8 January 2021.
By notice of motion filed in the Local Court on 2 February 2021, the plaintiffs applied to the Local Court for a stay of the judgment, pending determination of the appeal to this Court. On 10 February 2021, the Local Court made the following orders, which were entered on 18 February 2021. The orders stayed the judgment and the writ of levy of property on condition that Ms Ye and Ucer pay into a controlled monies account the sum of…

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 (No 3)

Details

AGLC: Ye v Chen (No 3) [2022] NSWSC 761
Case: [2022] NSWSC 761
Decision Date: 09 June 2022

CaseChat Overview and Summary

The case of Ye v Chen (No 3) involved the defendants, Chen and his wife, who had previously been successful against two plaintiffs in an action relating to a property transaction. One of the plaintiffs, Mr Ye, had appealed against the decision but the appeal was dismissed. The other plaintiff, Ms Ye, had also lost but did not appeal. The defendants sought to enforce the judgment against both plaintiffs. Mr Ye applied to vary the orders staying enforcement pending the outcome of his appeal, which had been dismissed. The court had to decide whether to vary the orders staying enforcement pending appeal by one plaintiff, considering the overriding purpose of the Uniform Civil Procedure Rules.

The court considered whether varying the orders staying enforcement pending appeal by one plaintiff would promote the overriding purpose of the Uniform Civil Procedure Rules. The overriding purpose was to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The court held that varying the orders staying enforcement pending appeal by one plaintiff would not promote the overriding purpose. The court noted that the dismissal of the appeal had resulted in a final judgment against Mr Ye, and that varying the orders would not achieve any just outcome for him. The court also noted that varying the orders would not achieve any just outcome for Ms Ye, who had not appealed and was not seeking to vary the orders.

Accordingly, the court refused to vary the orders staying enforcement pending appeal by one plaintiff. The court held that varying the orders would not promote the overriding purpose of the Uniform Civil Procedure Rules and would not achieve any just outcome for either plaintiff. The court noted that the defendants were entitled to enforce the judgment against both plaintiffs, subject to any applicable limitations or conditions. The court did not make any further orders in relation to the enforcement of the judgment.

In summary, the court refused to vary the orders staying enforcement pending appeal by one plaintiff, holding that doing so would not promote the overriding purpose of the Uniform Civil Procedure Rules and would not achieve any just outcome for either plaintiff. The court held that the defendants were entitled to enforce the judgment against both plaintiffs, subject to any applicable limitations or conditions. No further orders were made.

Orders