Zhang v Zhang - [2024] VSC 3

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST

S ECI 2023 05550

YIHAO ZHANG	Plaintiff
v
JAMES ZHANG and YONG HENG AUSTRALIA PTY LTD	Defendants

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JUDGE:	M Osborne J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 January 2024
DATE OF JUDGMENT:	16 January 2024
CASE MAY BE CITED AS:	Zhang v Zhang & Anor
MEDIUM NEUTRAL CITATION:	[2024] VSC 3

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PRACTICE AND PROCEDURE — CROSS-VESTING — Section 8(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) — Section 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) — Whether proceeding initiated in the County Court of Victoria should be removed to the Supreme Court of Victoria so that the proceeding can then be transferred to the Federal Court of Australia where another proceeding is on foot between the parties.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	L Kelly KC and N Kabilafkas	Juris Cor Legal
For the Defendants	P Cawthorn KC and V Bell	Moray & Agnew

HIS HONOUR:

Introduction

This is an application by Yihao Zhang (for convenience, ‘Eric’)[1] for orders pursuant to s 8(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (the ‘Victorian Act’) removing proceedings commenced by the defendants, James Zhang (for convenience, ‘James’) and Yong Heng Australia Pty Ltd (‘YHA’) against Eric in the County Court of Victoria in proceeding number CI-2022-01297 (the ‘County Court Proceeding’) and then for the transfer of the County Court Proceeding to the Federal Court of Australia pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (the ‘Commonwealth Act’).
[1]Referring to the parties by their first names is intended to convey no disrespect and accords with the practice followed by the parties.

James and various entities associated with him are the applicants in separate proceedings commenced by James against Eric and others in the Victorian Registry of the Federal Court (the ‘Federal Court Proceeding’).

Eric relies upon four affidavits sworn by his instructing solicitor, Yu Chen, made 24 November 2023, 30 November 2023, 18 December 2023 and 8 January 2024. He also relies upon an email from the solicitor for the third respondent in the Federal Court Proceeding consenting to the proposed transfer and submissions filed by James in the Federal Court in support of an unsuccessful application by James to discharge a freezing order earlier made against him in the Federal Court Proceeding.

James relies on an affidavit of his solicitor, Bowen Qi (the ‘Qi Affidavit’) made 21 December 2023.

Both parties also filed outlines of submissions.

I have had regard to each of the affidavits and exhibits relied upon by the parties and their written and oral submissions. Any failure to refer specifically to any aspect of that material does not mean it was not taken into account.

On 7 April 2022, YHA, a company controlled by James, commenced proceedings against Eric seeking to recover moneys alleged to be owing by Eric to YHA pursuant to a written loan agreement dated…

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: [2024] VSC 3
Decision Date: 16 January 2024

CaseChat Overview and Summary

In the case of Zhang v Zhang, the County Court of Victoria was tasked with determining whether a proceeding initiated by the plaintiff, Zhang, should be transferred to the Federal Court of Australia. The defendant, Zhang, argued that the County Court lacked the jurisdiction to hear the case due to the existence of a concurrent proceeding in the Federal Court. The crux of the matter was whether the Federal Court's jurisdiction over a related matter could be invoked to mandate a transfer from the County Court to the Supreme Court of Victoria, and subsequently to the Federal Court.

The legal issues before the court centred on the interpretation and application of Section 8(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and Section 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The primary concern was whether the County Court was obliged to remove the proceeding to the Supreme Court of Victoria, enabling a subsequent transfer to the Federal Court, in light of the concurrent litigation between the parties.

In delivering the judgment, the court meticulously analysed the statutory provisions and their interplay. The court found that the Federal Court's jurisdiction did not, by itself, compel a transfer from the County Court. The court held that there was no automatic removal of the case to the Supreme Court of Victoria under Section 8(1) of the Cross-vesting Act (Vic). Consequently, the County Court retained its jurisdiction to hear the matter. The court concluded that the existence of related proceedings in another court did not affect its authority to proceed with the case at hand.

No orders were made to transfer the proceeding from the County Court to the Federal Court. The County Court retained jurisdiction to continue with the hearing of the case.

Orders