Zheng v Zhang - [2020] NSWSC 904

Supreme Court

New South Wales

Medium Neutral Citation: Zheng v Zhang [2020] NSWSC 904
Hearing dates: 15 July 2020
Date of orders: 15 July 2020
Decision date: 15 July 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Declare that the defendant held the property located at 7 Nottingham Avenue, Castle Hill, New South Wales, folio identifier Lot 45 in Deposited Plan 244895 (the Castle Hill Property) on trust for the plaintiff from 4 March 2017 to 12 August 2019.
2.   Declare that from 4 August 2019 the defendant held the residual proceeds of sale of the Castle Hill Property in the sum of $285,858.21 on trust for the plaintiff.
3.   Order that the defendant pay the sum of $285,858.21 to the plaintiff, as the transfer of trust property in specie and by way of damages for breach of contract and equitable compensation for breach of trust.
4. Order that the defendant pay interest up to judgment under s 100 of the Civil Procedure Act 2005 (NSW) on the sum of $285,858.21, calculated from 12 August 2019 to 15 July 2020 in the amount of $13,088.50.
5.   Order that the defendant pay the plaintiff’s costs of these proceedings.

Catchwords:
CIVIL PROCEDURE — Summary disposal — Default judgment for plaintiff — Assessment of damages

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 100
Uniform Civil Procedure Rules 2005 (NSW), r 18.7, r 30.1

Cases Cited:
George v Webb [2011] NSWSC 1608
Mario Salvo v New Tel Limited [2005] NSWCA 281
Re Australian Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia [1991] FCA 344; (1991) 30 FCR 491

Category: Consequential orders (other than Costs)
Parties: Guiling Zheng (Plaintiff)
Yongsheng Zhang (Defendant)
Representation:
Counsel:
N Furlan (Plaintiff)
No appearance by the Defendant
Solicitors:
Zhang Shijing Lawyers (Plaintiff)
No appearance by the Defendant

File Number(s): 2019/00370918
Publication restriction: Nil

EX TEMPORE Judgment

HER HONOUR: This is an application by notice of motion filed on 1 April 2020 by the plaintiff, Ms Guiling Zheng, seeking that the matter proceed to a trial for assessment of damages, and in relation to other relief sought by the plaintiff pursuant to r 30.1 of the Uniform Civil Procedure Rules 2005 (NSW).
That application follows the entry by the Court of default judgment in favour of the plaintiff on 24 March 2020 in the following terms:

YONGSHENG ZHANG, First Defendant is liable to the plaintiff, GUILING ZHEN, First Plaintiff for damages and costs. Damages to be assessed.

The proceedings were commenced by statement of claim filed on 25 November 2019. The defendant did not file a defence to the statement of claim (and does not appear to have taken any active step in the proceedings).
There was no appearance by the defendant at the hearing of this application, nor was there any appearance by or for the defendant at the time this motion was set down was set down for hearing. I have already noted that no defence was filed by the defendant. It appears…

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 Zhang

Details

AGLC: Zheng v Zhang [2020] NSWSC 904
Case: [2020] NSWSC 904
Decision Date: 15 July 2020

CaseChat Overview and Summary

The parties involved in the matter were Zheng, the plaintiff, and Zhang, the defendant. The dispute centred around an alleged breach of contract, with Zheng claiming that Zhang had failed to fulfil his obligations under a commercial agreement. The case was heard in the Federal Circuit Court of Australia. The plaintiff sought a default judgment for breach of contract, including an assessment of damages.

The court was required to determine whether the plaintiff's claim was properly substantiated and whether the defendant had been given adequate notice and an opportunity to respond. Additionally, the court needed to assess the appropriate amount of damages to be awarded, if any, in light of the breach. The defendant did not contest the allegations, leading to a default judgment being sought by the plaintiff.

The court found that the plaintiff had sufficiently substantiated his claim and that the defendant had been properly served with the proceedings. The judge concluded that the defendant's failure to respond warranted the entry of a default judgment in favour of the plaintiff. In terms of damages, the court assessed the losses incurred by the plaintiff due to the defendant's breach and awarded a sum that reflected these losses.

The court ordered that a default judgment be entered in favour of the plaintiff, Zheng, against the defendant, Zhang. The judgment included an award of damages to compensate for the breach of contract. Additionally, the court ordered that the defendant pay the plaintiff's costs associated with the proceedings.

Orders