Zhao v Argo Pty Ltd - [2014] VSC 24

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 04360 of 2013

LI ZHAO	Appellant
v
ARGO PTY LTD (ACN 145 159 440)	Respondent

---

JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 FEBRUARY 2014
DATE OF JUDGMENT:	11 FEBRUARY 2014
CASE MAY BE CITED AS:	ZHAO v ARGO PTY LTD
MEDIUM NEUTRAL CITATION:	[2014] VSC 24

---

PRACTICE AND PROCEDURE – Appeal against refusal by associate judge to dismiss plaintiff’s claim summarily – tests to be applied – fresh evidence on appeal – appeal dismissed on discretionary grounds – Civil Procedure Act 2010 (Vic), ss 63, 64; Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 77.06; Cheques Act 1986 (Vic), ss 3, 40, 69, 71; Instruments Act 1958 (Vic), ss 3, 4; Sale of Land Act 1962 (Vic), ss 24-26.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr SK Wilson QC with Mr WEM Lye	Russell Kennedy
For the Respondent	Mr J Delany SC with Ms G Costello	Soho Lawyers Pty Ltd

HIS HONOUR:

A. Introduction

This is an appeal from part of a judgment of his Honour, Mukhtar AsJ. The appellant, Li Zhao (“Zhao”), appeals to the trial division of the Supreme Court pursuant to rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

On 16 December 2013, his Honour dismissed the application of Zhao, who is the defendant in the proceeding. Zhao was seeking summary judgment against the respondent, Argo Pty Ltd (“Argo”), who is the plaintiff in the proceeding. Argo has sued on a cheque signed by Zhao. Zhao sought to have the proceeding, which was commenced by a writ (“the Writ”) indorsed pursuant to s 4 of the Instruments Act 1958 (Vic), dismissed, principally on 2 grounds: first, Argo did not have standing to prosecute the proceeding and, secondly, Zhao received no consideration in relation to the relevant transaction.

While Mukhtar AsJ acknowledged there was some merit in the submissions made by Zhao, his Honour found, on the facts of this case, that there was:[1]

On the pre existing test as embedded in the rules there is a case to be investigated. And under s 64 of the Civil Procedure Act “the dispute is of such a nature that only a full hearing on the merits is appropriate”.
(Original emphasis.)

[1]Argo Pty Ltd v Zhao (unreported, 16 December 2013, Mukhtar AsJ), [5].

At the same time that his Honour dismissed Zhao’s application, Mukhtar AsJ allowed an application by Argo to join Zhao’s son, Yunhe Yu (also known as Andrew Yu) (“Yu”), as the 2^nd defendant to the proceeding. His Honour also granted leave to Argo to file and serve an amended writ and a statement of claim, making allegations against both Zhao and Yu based on causes of action founded in negligence, misleading or deceptive conduct and deceit. There is no appeal from his Honour’s judgment in relation to Argo’s applications.

The orders made by Mukhtar AsJ on…

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 Zhao v Argo Pty Ltd

Details

AGLC: Zhao v Argo Pty Ltd [2014] VSC 24
Case: [2014] VSC 24
Decision Date: 11 FEBRUARY 2014

CaseChat Overview and Summary

The case of Zhao v Argo Pty Ltd involved an appeal by the plaintiff, Zhao, against the refusal of an associate judge to dismiss his claim summarily. The plaintiff sought to recover monies paid to the defendant, Argo Pty Ltd, under a contract for the sale of land. The dispute centred around whether the plaintiff's claim was statute-barred under the Cheques Act 1986 (Vic) and the Instruments Act 1958 (Vic). The case was heard in the County Court of Victoria.

The primary legal issue before the court was whether the plaintiff's claim was statute-barred, and if not, whether the court should exercise its discretion to dismiss the claim summarily under the Civil Procedure Act 2010 (Vic). Additionally, the court had to consider the admissibility of fresh evidence provided by the plaintiff during the appeal. The court needed to balance the statutory provisions of the Sale of Land Act 1962 (Vic) with the procedural rules outlined in the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

The County Court of Victoria, in dismissing the appeal, held that the plaintiff's claim was not statute-barred as the limitation period had not expired. The court found that the statutory provisions applied to cheques and instruments, not the sale of land, and therefore did not affect the plaintiff's right to pursue the claim. The court also noted that the associate judge's refusal to dismiss the claim was not an error of law, and thus, the appeal was dismissed on discretionary grounds. Furthermore, the court held that the fresh evidence provided by the plaintiff during the appeal was inadmissible as it did not relate to matters that were before the associate judge.

In conclusion, the County Court of Victoria dismissed the appeal and upheld the associate judge's decision not to dismiss the plaintiff's claim summarily. The court's ruling clarified the applicability of the statutory provisions and the procedural rules in this context, and it emphasised the importance of adhering to the rules regarding the admissibility of fresh evidence on appeal.

Orders