Zheng v Zhu

[2022] NSWSC 1135

Supreme Court

New South Wales

Medium Neutral Citation:

Zheng v Zhu [2022] NSWSC 1135

Hearing dates:

23 August 2022

Decision date:

23 August 2022

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Judgment for the plaintiff against the defendant in the amount of $2,988,996.40, which includes interest in the sum of $798,996.40.

(2)   The defendant pay the plaintiff’s costs in the sum of $9,000.00.

Catchwords:

CIVIL PROCEDURE — Default judgment — application for default judgment — requirements in UCPR r 16.6 met — default judgment entered

Legislation Cited:

Electronic Transactions Act 2000 (NSW), s 14G

Uniform Civil Procedure Rules 2005 (NSW), rr 11.8AA, 16.6

Category:

Principal judgment

Parties:

Xiaoqing Zheng (Plaintiff)
Nina Flynn Zhu (Defendant)

Representation:

Counsel:
M Davis (Plaintiff)
No appearance (Defendant)

Solicitors:
Eakin McCaffery Cox (Plaintiff)
Not applicable (Defendant)

File Number(s):

2022/115729

JUDGMENT: EX TEMPORE

1. By notice of motion dated 5 July 2022, Xiaoqing Zheng (the plaintiff) sought leave to proceed against the defendant, Nina Flynn Zhu (the defendant), pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 11.8AA (prayer 1) and judgment for the plaintiff against the defendant in a particular amount (prayer 2), as well as an order that the defendant pay the plaintiff’s costs in a specified sum (prayer 3).

2. Prayer 1 of the notice of motion was ordered by the Registrar in chambers. However, I am told by Mr Davis, who appears on behalf of the plaintiff, that the registrar has reservations about whether she has power to enter default judgment for the plaintiff, pursuant to prayer 2 of the notice of motion, by reason of the relief claimed in the statement of claim, which included a claim for such further or other orders the Court thinks fit (prayer 4). Accordingly, the plaintiff's application for default judgment was referred to me as Duty Judge for an ex parte hearing on 23 August 2022.

3. The requirements for entry of default judgment are set out in UCPR, r 16.6. Rule 16.6(1) provides for judgment to be given for the plaintiff against the defendant for a sum not exceeding the sum claimed, interest up to judgment and costs. In r 16.6(2) provision is made for the requirements in the relevant affidavit or affidavits in support.

4. One of the requirements, in r 16.6(2)(f), is for the affidavit in support of the application to state when and how the originating process was served on the defendant. In proof of that matter, Mr Davis has read the affidavit of Belle Lou of 18 August 2022, who deposes to viewing a WeChat application in which she witnessed the person who served the process, Jihua Wang, sign a copy of the affidavit of service. Mr Wang was a security person in the apartment complex known as Jun Yu Garden, Shun De District, Fo Shan City, where the defendant lived. Mr Wang was able to serve the defendant personally on 16 May 2022.

5. I am satisfied that Ms Lou observed Mr Wang attest to that affidavit in accordance with s 14G of the Electronic Transactions Act 2000 (NSW) and, accordingly, that the requirement of proof of service in UCPR r 16.6(2)(f) has been met.

6. The application for default judgment is also supported by the affidavit of the plaintiff of 4 July 2022. The plaintiff, who also verified the statement of claim, deposed as to the amount owing to him by the defendant in paragraph 14 of the affidavit.

7. The plaintiff also deposes that since the commencement of the proceedings no payments have been received or credits accrued to reduce the amount of the claim. The plaintiff has also deposed as to the interest claimed by him. I am informed by Mr Davis that that interest, which amounts to $775,932.63, has been calculated up to the date of the filing of the statement of claim but not up until today’s date, being the date on which I propose to enter judgment. Mr Davis has indicated that he will provide to my Associate in the course of the day an interest calculation which takes the interest up to today’s date.

8. The plaintiff also deposes as to costs he has incurred in the proceedings, including fees for the filing of the statement of claim, for the filing of the present notice of motion and the solicitor’s costs and counsel’s fees incurred.

9. I am satisfied on the basis of the affidavit evidence adduced by Mr Davis in the Court book, which I have marked exhibit A, that all relevant matters have been addressed in the affidavits in support of the application as stipulated by UCPR, r 16.6.

10. As I do not have the final judgment figure, I do not propose to pronounce orders in open court but I will make orders in chambers and provide them to the plaintiff's legal representatives and have the orders entered on JusticeLink, as sought in the notice of motion.

Orders

11. For the reasons given above, I make the following orders:

1. Judgment for the plaintiff against the defendant in the amount of $2,988,996.40, which includes interest in the sum of $798,996.40.

2. The defendant pay the plaintiff’s costs in the sum of $9,000.00.

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Decision last updated: 25 August 2022