Zheng v Jin - [2024] NSWCA 293

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zheng v Jin [2024] NSWCA 293
Hearing dates: 4 December 2024
Date of orders: 9 December 2024
Decision date: 09 December 2024
Before: Ward P; Leeming JA
Decision:
1. Application for leave to appeal dismissed with costs.

Catchwords:
APPEALS – Leave to appeal – Summary dismissal – Proceedings barred by issue estoppel or Anshun estoppel – Proceedings instituted outside limitation period – No issue of principle or public importance – Leave refused

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 100
Family Law Act 1975 (Cth), ss 79, 119
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28

Cases Cited:
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Blair & Perpetual Trustee Co Ltd v Curran (Adam's will) (1939) 62 CLR 464; [1939] HCA 23
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21
Clarke v State of New South Wales [2015] NSWCA 27
Jaycar Pty Limited v Lombardo [2011] NSWCA 284
Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34
Manby v Manby (1876) 3 Ch D 101
Murphy v Abi-Saab (1995) 37 NSWLR 280
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34
Zheng v Jin [2024] NSWSC 567

Category: Principal judgment
Parties: Chao Zheng (Applicant)
Jun Jin (Respondent)
Representation:
Counsel:
C Zheng (in person) (Applicant)
M Castle (Respondent)
Solicitors:
Monaco Lawyers (Respondent)

File Number(s): 2024/00216275
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Civil

Citation:

[2024] NSWSC 567

Date of Decision:

14 May 2024

Before:

Hmelnitsky J

File Number(s):

2024/31780

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 14 May 2024, Hmelnitsky J summarily dismissed proceedings brought by Mr Chao Zheng (the applicant) against his former wife (Ms Jun Jin) (the respondent) pursuant to r 13.4 of the Uniform Civil Procedure Rules (2005) (NSW) (UCPR). His Honour gave ex tempore reasons for his summary dismissal of the proceedings.

His Honour’s primary conclusion was that Mr Zheng was prevented by issue estoppel from seeking to assert his claimed entitlement to certain AUD and RMB funds, that issue estoppel arising because Mr Zheng would then be traversing matters already decided in earlier proceedings brought against his wife under the Family Law Act 1975 (Cth). His Honour held that if, contrary to his primary conclusion, Mr Zheng’s entitlement to those funds had not been determined in the earlier proceedings, Mr Zheng’s claim to those funds could and should have been brought in those earlier proceedings and it was entirely unreasonable for him not to have raised his present claims at the time that all of the other issues were resolved. Hence,…

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 Zheng v Jin

Details

AGLC: Zheng v Jin [2024] NSWCA 293
Case: [2024] NSWCA 293
Decision Date: 09 December 2024

CaseChat Overview and Summary

The applicant, Zheng, sought leave to appeal against a summary dismissal of proceedings by the primary judge. The respondent was Jin. The proceedings were dismissed on the basis that they were barred by issue estoppel or *Anshun* estoppel, and also because they were instituted outside the relevant limitation period.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the proceedings were barred by issue estoppel or *Anshun* estoppel, and whether the proceedings were validly commenced within the applicable limitation period. The Court was also required to consider whether there was any issue of principle or public importance that warranted granting leave to appeal.

Ward P and Leeming JA dismissed the application for leave to appeal. Their Honours found that the primary judge had correctly applied the principles of issue estoppel and *Anshun* estoppel, and that the proceedings were indeed out of time. They concluded that there was no arguable error in the primary judge's decision and, crucially, that no issue of principle or public importance arose that would justify granting leave to appeal.

Consequently, the application for leave to appeal was dismissed with costs.

Orders

Orders of the court

1. Application for leave to appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Zheng v Jin [2024] NSWCA 293
Hearing dates:	4 December 2024
Date of orders:	9 December 2024
Decision date:	09 December 2024
Before:	Ward P; Leeming JA
Decision:	1. Application for leave to appeal dismissed with costs.
Catchwords:	APPEALS – Leave to appeal – Summary dismissal – Proceedings barred by issue estoppel or Anshun estoppel – Proceedings instituted outside limitation period – No issue of principle or public importance – Leave refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 100 Family Law Act 1975 (Cth), ss 79, 119 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Blair & Perpetual Trustee Co Ltd v Curran (Adam's will) (1939) 62 CLR 464; [1939] HCA 23 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21 Clarke v State of New South Wales [2015] NSWCA 27 Jaycar Pty Limited v Lombardo [2011] NSWCA 284 Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 Manby v Manby (1876) 3 Ch D 101 Murphy v Abi-Saab (1995) 37 NSWLR 280 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34 Zheng v Jin [2024] NSWSC 567
Category:	Principal judgment
Parties:	Chao Zheng (Applicant) Jun Jin (Respondent)
Representation:	Counsel: C Zheng (in person) (Applicant) M Castle (Respondent) Solicitors: Monaco Lawyers (Respondent)
File Number(s):	2024/00216275
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Civil Citation: [2024] NSWSC 567 Date of Decision: 14 May 2024 Before: Hmelnitsky J File Number(s): 2024/31780