Zhao v Wu (No 2) - [2019] NSWSC 1585

Supreme Court

New South Wales

Medium Neutral Citation: Zhao v Wu (No 2) [2019] NSWSC 1585
Hearing dates: 13 November 2019
Decision date: 14 November 2019
Jurisdiction: Common Law
Before: Adamson J
Decision:
See [33]

Catchwords:
LIMITATION OF ACTIONS – debt – payable immediately or on demand – usual rule of construction that time runs from date of advance for loan repayable on demand – whether displaced by clear language
APPEALS – failure by magistrate to address limitation defence – whether Supreme Court can determine proceedings or whether remitter required
Legislation Cited: Limitation Act 1969 (NSW), ss 14, 54, 63
Local Court Act 2007 (NSW), s 39, 40, 41
Suitors’ Fund Act 1951 (NSW), s 6
Uniform Civil Procedure Rules 2005 (NSW), r 14.4
Cases Cited: Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24
Fischer v Nemeske Pty Ltd [2014] NSWSC 203;
Fischer v Nemeske Pty Ltd [2015] NSWCA 6
Fischer v Nemeske Pty Ltd (2016) 257 CLR 615; [2016] HCA 11
In the matter of Italasia Pty Ltd [2017] NSWSC 811
Ogilvie v Adams [1981] VR 1041
Rose v Tunstall [2018] NSWCA 241
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Wu v Zhao [2018] NSWSC 1182
Young v Queensland Trustees Limited (1956) 99 CLR 560; [1956] HCA 51
Category: Principal judgment
Parties: Ying Zhao (Plaintiff)
Jao Wu (Defendant)
Representation:
Counsel:
M Condon SC (Plaintiff)
JC Lee (Defendant)
Solicitors:
Juris Cor Legal (Plaintiff)
Wang Fang & Co Legal Pty Ltd (Defendant)

File Number(s): 2019/217426
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

14 June 2019

Before:

Barko LCM

File Number(s):

2017/00185527

Judgment

Introduction

By amended summons filed in Court on 13 November 2019, Ying Zhao, the plaintiff, seeks to have a judgment entered against her in the Local Court set aside pursuant to s 39 of the Local Court Act 2007 (NSW). She also seeks an order that the proceedings brought against her in the Local Court by Jao Wu, the defendant, be dismissed. In the alternative, she seeks an order that the matter be remitted to the Local Court to be determined in accordance with the law.
Ms Zhao and Mr Wu are siblings. The proceedings arise out of a loan made by their parents to Ms Zhao in 2002. As Mr Wu was the plaintiff in the Local Court and is the defendant in this Court and Ms Zhao was the defendant in the Local Court and is the plaintiff in this Court, it is convenient to refer to the parties by name rather than by any other description.
This Court’s jurisdiction arises under ss 39 and 41 of the Local Court Act which relevantly provide:

“39 Appeals as of right
(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may…

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 Wu (No 2)

Details

AGLC: Zhao v Wu (No 2) [2019] NSWSC 1585
Case: [2019] NSWSC 1585
Decision Date: 14 November 2019

CaseChat Overview and Summary

The case of Zhao v Wu (No 2) involved a dispute regarding a debt. The matter was heard in the Supreme Court of New South Wales, which was tasked with determining the limitation of actions applicable to a debt that was payable either immediately or on demand. The plaintiff, Zhao, sought to recover a sum of money from the defendant, Wu, who argued that the claim was statute-barred. The central issue before the court was whether the usual rule of construction, which dictates that time runs from the date of the advance for a loan repayable on demand, was displaced by any clear language in the agreement between the parties.

The court had to examine whether the terms of the agreement between Zhao and Wu provided any clear language that would alter the usual rule. The usual rule in such cases is that the time for bringing an action starts from the date of the advance. However, if the terms of the agreement are clear and unambiguous, they may dictate a different starting point for the limitation period. The court also needed to determine whether the magistrate's failure to address the limitation defence necessitated a remitter to the Local Court or if the Supreme Court could determine the proceedings. This involved interpreting the relevant statutory provisions and considering the appropriate course of action given the circumstances.

The Supreme Court concluded that the clear language in the agreement did not displace the usual rule, meaning that time started from the date of the advance. The court also found that the failure of the magistrate to address the limitation defence did not necessitate a remitter to the Local Court, as the Supreme Court could determine the proceedings. Consequently, the court dismissed Wu's limitation defence and allowed Zhao's claim to proceed. The final orders of the court were that Wu was liable to pay the sum claimed by Zhao, plus interest and costs.

Orders