Zhon Yuan Pty. Limited v Yuan Zhong

[1999] NSWSC 195

CITATION:	Zhon Yuan Pty. Limited v Yuan Zhong [1999] NSWSC 195
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	2113/98
HEARING DATE(S):	12 March 1999
JUDGMENT DATE:	12 March 1999
PARTIES :	Zhon Yuan Pty. Limited (P) Yuan Zhong (D)
JUDGMENT OF:	Master McLaughlin

COUNSEL :
SOLICITORS:	Bannermans (P) In Person (D)
CATCHWORDS:
DECISION:

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SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 12 March 1999

2113/98 ZHON YUAN PTY LIMITED -v- YUAN ZHONG

JUDGMENT

1 MASTER: These proceedings were instituted by Statement of Claim filed by the plaintiff Zhon Yuan Pty Ltd on 23 April 1998. The defendant named in that pleadings was Yuan Zhong. Apparently that Statement of Claim has never been served. Subsequently, however, there was, on 28 September 1998, filed an amended Statement of Claim. That pleading bears the endorsement that it was filed pursuant to Part 20 rule 2 of the Supreme Court Rules. That rule, by subrule (1) thereof enables a party pleading to amend without leave the pleading once at any time before the pleadings are closed. 2 It would be appear that difficulties were encountered by the plaintiff concerning service of the amended Statement of Claim, and eventually orders for substituted service were made. The amended Statement of Claim was served by way of substituted service on 13 January 1999; and pursuant to the orders for substituted service in that regard it was deemed to have been served on the defendant on 20 January 1999. 3 The causes of action pleaded in the amended Statement of Claim include causes of action based upon the Fair Trading Act, causes of action in restitution for unjust enrichment, in conversion and detention in respect to various motor vehicles acquired by the defendant for use as taxi cabs. It is unnecessary for me, for the purposes of the present application, to set forth in greater detail the causes of action alleged in the amended Statement of Claim. 4 There was, on 15 February 1998, filed a document entitled Defence, which appears to have been prepared by the defendant in person. It bears his name and address and is signed by and purports to be verified by the defendant. The response of that document to the amended Statement of Claim is contained in paragraph 1, which in the following terms "The defendant denies paragraphs 1 to 103 of the plaintiff's pleading." 5 There was on 25 February 1999 filed by the plaintiff a Notice of Motion, by which the plaintiff seeks an order that the defence be struck out and that judgment be entered in favour of the plaintiff. That Notice of Motion, which was returnable this day, 12 March 1999, came on for hearing before me. The defendant has now filed a further document, entitled defence, which was filed on 10 March 1999. That document, although in typewritten form (in contrast to the earlier document filed on 15 February 1999, which was handwritten), also was filed by the defendant personally and purports to have been verified by him. 6 The plaintiff seeks that the Notice of Motion returnable this day should be treated as applying not only to the document filed on 15 February 1999 but also to the document filed on 10 March 1999. 7 In support of the Notice of Motion there has been filed an affidavit by David Bannerman, the solicitor for the plaintiff. In paragraph 2 of that affidavit, sworn on 24 February 1999, the deponent rightly points to the fact that the defence of 15 February 1999 is a general traverse, in that it denies the allegations but does not set out a defence. The deponent states that the plaintiff relies on Part 15 rule 27 of the Supreme Court Rules. That rule provides in subrule (1) “A party shall not plead the general issue”. 8 It is obvious that the document filed on 15 February 1999 must be struck out, and I propose so to order. 9 It seems to me appropriate that the present application should be regarded as an application either to strike out the document filed on 10 March 1999, or, in the alternative, since that document was filed without the leave of the Court and without the consent of the plaintiff, to treat the plaintiff's application as being one for the granting of leave to file that document. 10 The purported defence of 10 March 1999 is not in a form appropriate to a defence or indeed to any pleading. If only on the ground of form, it must be struck out as improperly filed or leave to file it must be denied to the defendant. 11 However, that document does allege various matters which, if properly pleaded may constitute defences to part or all of the allegations contained in the amended Statement of Claim. 12 In saying that, I do not in any way wish to suggest that I have arrived at any conclusion concerning the strength of any such defences or any conclusion as to the outcome of any application which might subsequently be made to strike out any amended defence which the defendant might ultimately file. I merely say that there are allegations made in the document filed on 10 March 1999 which might possibly constitute a defence to some or all of the causes of action contained in the amended Statement of Claim. 13 However, as I have already indicated, the purported defence of 10 March 1999 cannot be allowed to stand as a defence in the present proceedings. 14 The defendant should be allowed the opportunity of filing an amended defence. He seeks until the end of May in which to do so. The plaintiff submits that he should not have any longer than 14 days. The plaintiff points to the fact that the proceedings have now been on foot for the best part of a year, that considerable difficulties have been encountered in serving the defendant, that in consequence of the orders for substituted service the defendant must be taken to have been served with the amended Statement of Claim by 20 January 1999, that is, about seven weeks ago. Further, the plaintiff points to the fact that, if ultimately successful in his claim against the defendant, he will, by any further delay, be kept out of the benefit of the income being generated by the motor vehicles at least one of which, according to the plaintiff, is still being used by the defendant as a taxi cab. 15 I do not propose to give to the defendant until the end of May in which to file an amended defence. I propose to give him 21 days from today's date. The defendant has appeared in person before me today. He has, however, previously had legal representation. There are other proceedings currently on foot between himself and the principal of the plaintiff company. I would suggest that it would be to the benefit of the defendant if he obtained legal advice concerning the form of any amended defence which he might wish to file in this matter. 16 I make the following orders.

(1) I order that the defence filed by the defendant on 15 February 1999 be struck out.

(2) I order that the document entitled Defence filed on 10 March 1999 be struck out.

(3) I grant leave to the defendant to file and serve an amended defence on or before Thursday 1 April 1999.

(4) I order that the defendant pay the costs of the plaintiff of the Notice of Motion filed by the plaintiff on 25 February 1999.

(5) I grant leave to the plaintiff to proceed forthwith to assessment of the forgoing costs.

(6) I stand the matter over to Friday 9 April 1999 before the registrar for any application which the plaintiff might wish to make in respect to any amended defence filed by the defendant and for directions.

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