Yu v Lu

Case [2019] VSC 576 28 August 2019

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2018 02307

XINQIANG YU	Plaintiff
v
OU LU	First Defendant
LUOU PTY LTD (ACN 124 393 353)	Second Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2019
DATE OF JUDGMENT:	28 August 2019
CASE MAY BE CITED AS:	Yu v Lu
MEDIUM NEUTRAL CITATION:	[2019] VSC 576

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PRACTICE AND PROCEDURE – Want of prosecution – Failure to comply with orders of the Court – Inordinate and inexcusable delay in the prosecution of the matter by the plaintiff – Dismissal of proceeding for want of prosecution – Whether dismissal of proceeding consistent with the interests of justice and with the overarching purpose contained in the Civil Procedure Act 2010 (Vic) – Civil Procedure Act 2010 (Vic) s 7, Part 2.4 – Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197, 1203; Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863; Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175; Knorr v CSIRO (Commonwealth Scientific and Industrial Research Organisation) [2014] VSCA 84.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Harding	Herald Legal
For the Defendant	Mr TP Mitchell	Tao Jiang Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

The facts............................................................................................................................................... 2

12 February 2019........................................................................................................................... 2
28 March 2019................................................................................................................................ 3
14 May 2019.................................................................................................................................... 4
19 June 2019.................................................................................................................................... 5
25 July 2019.................................................................................................................................... 6
22 August 2019.............................................................................................................................. 8

Submissions and consideration...................................................................................................... 9

Conclusion......................................................................................................................................... 21

HIS HONOUR:

Introduction

The defendants apply to dismiss the plaintiff’s proceeding for non-compliance with orders of the Court, want of prosecution and pursuant to the Civil Procedure Act 2010 (Vic) (CPA). The defendants rely upon rr 24.02 and 22.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) and upon s 29 of the CPA.[1]
[1]The application was originally made by summons filed on 10 January 2009 by the then defendant (now the first defendant) seeking, amongst other things, the summary dismissal of the plaintiff’s proceeding pursuant to ss 62 and 63 of the CPA. Subsequently, application was made pursuant to the summons to dismiss for non-compliance with orders of the Court and want of prosecution as long ago as 19 June 2019. The application has proceeded on that footing on 25 July and 22 August 2019 without objection by the plaintiff.

The first defendant (Ms Lu) is the registered proprietor of two properties, being 31 Gertz Avenue, Reservoir, (Gertz Avenue Property)[2] and Unit 712, 233 Collins Street, Melbourne, Victoria (Collins St Property).[3] The second defendant (Luou), as trustee of the Luou Family Trust, is registered as proprietor of a third property, 98 Doncaster Road, Balwyn North, Victoria (Balwyn Property).[4]
[2]The land more particularly described in certificate of title volume 09002 folio 508.
[3]The land more particularly described in certificate of title volume 10523 folio 675.
[4]The…

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 Yu v Lu

Details

AGLC: Yu v Lu [2019] VSC 576
Case: [2019] VSC 576
Decision Date: 28 August 2019

CaseChat Overview and Summary

In the matter of Yu v Lu, the plaintiff sought to recover damages from the defendant for breaches of contract. The proceedings were dismissed by the County Court of Victoria for want of prosecution. The plaintiff appealed to the Supreme Court of Victoria. The appeal raised questions about the court's discretion in dismissing a case for want of prosecution and whether such a dismissal was consistent with the overarching purpose of the Civil Procedure Act 2010 (Vic). The court was required to consider the principles governing dismissals for want of prosecution and whether the dismissal in this instance was just and aligned with the overarching purpose of the Act.

The central legal issue was whether the dismissal of the plaintiff’s proceeding for want of prosecution was an appropriate exercise of the court's discretion, particularly in light of the overarching purpose of the Civil Procedure Act 2010 (Vic). The court considered whether the plaintiff’s delay in prosecuting the matter was inordinate and inexcusable, and whether the dismissal was in the interests of justice. The court also examined relevant authorities, including Department of Transport v Chris Smaller (Transport) Ltd, Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells, Aon Risk Services Ltd v Australian National University, and Knorr v CSIRO, to ascertain the balance between the plaintiff's right to pursue legal remedies and the need to maintain the efficiency and fairness of the judicial process.

The Supreme Court of Victoria found that the plaintiff had exhibited inordinate and inexcusable delay in prosecuting the matter. The court held that the delay was significant and unjustified, and that the plaintiff had not demonstrated any substantial excuse for the delay. The court concluded that dismissing the proceeding was necessary to uphold the efficiency and fairness of the judicial process, and was consistent with the overarching purpose of the Civil Procedure Act 2010 (Vic). The dismissal was deemed to be in the interests of justice, taking into account the delay and the need to prevent the abuse of the court process.

The Supreme Court of Victoria dismissed the appeal, affirming the County Court’s decision to dismiss the proceeding for want of prosecution. The court emphasized that the dismissal was warranted given the significant delay and the lack of any substantial justification for the plaintiff's actions. The overarching purpose of the Civil Procedure Act 2010 (Vic) was upheld, ensuring that the judicial process was not unduly prolonged or abused.

Orders