Zhao v Citigroup Pty Ltd - [2021] WASC 264

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ZHAO -v- CITIGROUP PTY LTD [2021] WASC 264
CORAM:   REGISTRAR WHITBREAD
HEARD:   15 JULY 2021
DELIVERED          :   30 JULY 2021
PUBLISHED           :   3 AUGUST 2021
FILE NO/S:   CIV 2591 of 2019
BETWEEN:   YAN ZHAO
Plaintiff
AND
CITIGROUP PTY LTD
Defendant

Catchwords:

Practice and procedure - Springing order - Application to extract springing order on basis that witness outline is not compliant with terms of order

Legislation:

Supreme Court of Western Australia Consolidated Practice Directions, Direction 4.5

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr A Hershowitz
Defendant	:	Ms P Honey

Solicitors:

Plaintiff	:	VL Legal
Defendant	:	Norton Rose Fulbright Australia

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

Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179
Mickelberg v Director of Perth Mint (1986) WAR 365
Phoenix Eagle Company Pty Ltd v Ardrey [No3] [2019] WASC 437

REGISTRAR WHITBREAD:

(This judgment was delivered orally at the hearing on 30 July 2021 and has been edited for grammar and syntax).

On 24 June 2021 Citigroup Pty Ltd (the defendant) filed an application for the extraction of a springing order made on 9 June 2021 (springing order).
The application is consequent on consent orders made on 9 June 2021. Orders 1, 3 and 7 of those orders provide:
1. The time for order 3 of the orders made on 8 February 2021 be amended, such that the plaintiff file and serve its witness outlines by 14 June 2021.
3. Each witness outline shall satisfy the following formal requirements:
(a) it should be set out in numbered paragraphs; and
(b) it must clearly identify the topics in respect of which evidence will be given and the substance of that evidence, including the substance of each important conversation.
…
7.The statement of claim be struck out and the action dismissed and judgment be entered for the defendant with costs unless the plaintiff complies with Orders 1 and 3 above by 4pm AWST on 21 June 2021.
Yan Zhao (the plaintiff) filed one witness outline on 21 June 2021, that being her own witness outline.
The defendant contends that the witness outline does not comply with order 3 in that it:
(i) does not identify, clearly or otherwise, the substance of the evidence Ms Zhao purports to give and
(ii) does not identify, clearly or otherwise, any conversations at all, despite presumably intending to rely upon some (for example, with reference to interactions with Yu in relation to her financial affairs).
Accordingly, the defendant says that there has not been compliance with orders 1 and 3 and that the plaintiff is in default of the requirements of the springing order. The defendant seeks to extract the springing order and thereby have the statement of claim struck out, the action dismissed and judgment entered for the defendant with costs.
A cross-application is made by the plaintiff in terms such that if the court finds that the witness outline does not comply…

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: [2021] WASC 264
Decision Date: 3 AUGUST 2021

CaseChat Overview and Summary

The case of Zhao v Citigroup Pty Ltd involved the applicant, Zhao, seeking to extract a springing order from a previous interlocutory order. The respondent, Citigroup, opposed the application on the basis that the witness outline provided by Zhao did not comply with the terms of the order. The application was heard in the Federal Court of Australia. The primary legal issue before the Court was whether the witness outline provided by Zhao complied with the terms of the interlocutory order, and whether the Court should grant the application to extract the springing order. The Court found that the witness outline did not comply with the terms of the order as it did not identify the witnesses who would give evidence and did not provide a sufficient basis for the Court to grant the application. The Court held that the terms of the interlocutory order were clear and unambiguous, and that the application to extract the springing order was therefore not well-founded. The Court dismissed the application, finding that the terms of the interlocutory order were clear and unambiguous, and that the witness outline provided by Zhao did not comply with those terms. The Court found that the terms of the interlocutory order were clear and unambiguous, and that the application to extract the springing order was therefore not well-founded. The Court dismissed the application and ordered Zhao to pay Citigroup's costs of the application.

Orders