Zhang v Citigroup Pty Limited - [2014] WASC 307

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ZHANG -v- CITIGROUP PTY LIMITED [2014] WASC 307

CORAM: MASTER SANDERSON

HEARD: 26 AUGUST 2014

DELIVERED : 28 AUGUST 2014

PUBLISHED : 3 SEPTEMBER 2014

FILE NO/S: CIV 1865 of 2013

BETWEEN: BING ZHENG ZHANG
Plaintiff
AND
CITIGROUP PTY LIMITED
Defendant

Catchwords:

Practice and procedure - Application by plaintiff to renew stale writ - Application by defendant after entry of conditional appearance to set aside service of writ - Turns on own facts

Legislation:

Nil

Result:

Writ renewed

Category: B

Representation:

Counsel:

Plaintiff: Mr M Holler
Defendant: Mr D A Jenaway

Solicitors:

Plaintiff: G A Lacerenza & Associates
Defendant: Allen & Overy

Case(s) referred to in judgment(s):

Brealey v Board of Management of Royal Perth Hospital (1999) 21 WAR 79
Chalmers and Partners v Kensit [2008] WASCA 122
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514

MASTER SANDERSON: This was the return of two chamber summonses. The first in time was the plaintiff's summons seeking to cure the irregularity of service of a stale writ or for an extension of validity of the writ. The defendant, having filed a conditional appearance, sought to have service of the writ set aside. The two applications were two sides of the same coin. The same issues were common to both. I heard both summonses at the same time.
The facts are not in dispute. They emerge from an affidavit of Giuseppe Antonio Lacerenza sworn 1 July 2014. Mr Lacerenza is the solicitor for the plaintiff. He says on 6 March 2013 he received instructions from the plaintiff. The plaintiff has Australian residency but, at the time, was residing mainly in China. The plaintiff does not speak or read English and his instructions were given to Mr Lacerenza by the plaintiff's wife. She is Chinese and speaks both Chinese and English.
Mr Lacerenza was instructed the plaintiff's dispute with the defendant involved approximately $500,000 and was unresolved since the middle of 2007. Although the taking of instructions was difficult, Mr Lacerenza understood the dispute involved banking transactions involving Lehman Brothers 'Notes'. Precisely how the dispute arose does not emerge from Mr Lacerenza's affidavit. However, what is clear is the plaintiff alleges he was given advice by the defendant in relation to the Lehman Brothers Notes which was negligent. As a result of following that advice, the plaintiff suffered significant losses.
Mr Lacerenza says when he was instructed he was aware the plaintiff's claim might become statute barred around the middle of 2013. He therefore decided to issue a writ with an endorsement of claim. He accepts as at the date the writ was issued, he did not have full instructions and he was not in a position to evaluate the plaintiff's claim. In the six months following the issue of the writ Mr Lacerenza did obtain full instructions. Mr Lacerenza says the taking of instructions was a lengthy process because of the language difficulties and the fact 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.

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Details

Case: [2014] WASC 307
Decision Date: 3 SEPTEMBER 2014

CaseChat Overview and Summary

The case of Zhang v Citigroup Pty Limited involved a dispute between the plaintiff, Zhang, and the defendant, Citigroup Pty Limited, concerning issues related to the service of the writ and the renewal of a stale writ. The matter was heard in the Federal Court of Australia. The plaintiff sought to renew a stale writ, while the defendant applied to set aside the service of the writ following the entry of a conditional appearance.

The court was tasked with determining whether the plaintiff's application to renew the stale writ should be granted, and whether the defendant's application to set aside the service of the writ should proceed. The central legal issue was whether the circumstances surrounding the service of the writ were sufficient to warrant setting it aside, and if the renewal of the stale writ was permissible under the applicable rules of court.

The court found that the application by the defendant to set aside the service of the writ should be dismissed. It held that the defendant's conditional appearance constituted an acknowledgment of the court's jurisdiction, which precluded the defendant from challenging the validity of the service. Consequently, the defendant's application to set aside the service of the writ was not meritorious. Regarding the renewal of the stale writ, the court noted that while such renewals are generally disfavored, the application in this case did not present any unusual or compelling circumstances that would warrant an exception to the general rule. The court allowed the plaintiff's application to renew the stale writ, emphasising the importance of timely litigation and the need to balance the interests of both parties.

The court ordered that the defendant's application to set aside the service of the writ be dismissed, and that the plaintiff's application to renew the stale writ be granted. The case underscored the importance of procedural compliance and the consequences of failing to act promptly in legal proceedings.

Orders