Zhong v i-Prosperity Pty Ltd - [2020] NSWSC 1059

Supreme Court

New South Wales

Medium Neutral Citation: Zhong v i-Prosperity Pty Ltd [2020] NSWSC 1059
Hearing dates: 5 August 2020
Date of orders: 5 August 2020
Decision date: 05 August 2020
Jurisdiction: Common Law
Before: Walton J
Decision:
1. Pursuant to r 17.7 of the Uniform Civil Procedure Rules 2005 (NSW), partial judgment is given in favour of the plaintiff against the second defendant in the amount of $2,900,000.00.
2. The costs of the plaintiff’s notice of motion filed 14 July 2020 be reserved, including in respect of the hearing on 5 August 2020.

Catchwords:
CIVIL PROCEDURE – admissions – r 17.7 of the Uniform Civil Procedure Rules – partial judgment in favour of the plaintiff against the second defendant in the amount of $2.9 million – orders

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedures Rules 2005 (NSW)

Category: Procedural and other rulings
Parties: Hua Zhong (Plaintiff)
i-Prosperity Pty Ltd (First Defendant)
Menghong Gu (Second Defendant)
Representation:
Counsel:
V Bedrossian (Plaintiff)
Solicitors:
Guantao & CS Lawyers (Plaintiff)
Norton Rose Fulbright (First Defendant)
Landerer & Company (Second Defendant)

File Number(s): 2020/36104

ex tempore Judgment

HIS HONOUR: By a notice of motion filed 14 July 2020, Mr Hua Zhong, the plaintiff, made application for the entry of partial judgment against each of the first and second defendants in the proceedings brought by the plaintiff by way of an amended statement of claim filed on 10 February 2020.
The first defendant is known as i-Prosperity Pty Ltd and the second defendant, Menghong Gu (collectively, “the defendants”). By virtue of the first defendant having been placed in administration, the plaintiff did not pursue, but not abandon, his claim for relief in the notice of motion against the first defendant. In the result, the first defendant did not appear in these proceedings today.
The motion, by its terms, seeks an order pursuant to r 17.7 or alternatively r 36.1 of the Uniform Civil Procedures Rules 2005 (NSW) (“UCPR”), for judgment in favour of the plaintiff against the defendants in the amount of $2,900,000 (being $2.9 million) together with an order for interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for prejudgment interest for the period from 15 March 2020 until the date of judgment without prejudice to other entitlements held by the plaintiffs.
However, in submissions today, Mr V Bedrossian, who appeared for the plaintiff, did not press, properly in my view, the relief for interest, having regard to the basis upon which the claim for relief was pressed, that basis being admissions within the amended defence filed in the proceedings. Hence, the matter comes to the court, in its final form, as a claim for partial judgment against the second defendant in the sum of $2.9 million essentially in reliance upon r 17.7 of the UCPR.
That claim was pressed, in an evidentiary sense, upon the basis of an affidavit of Shun Cheng of 14 July 2020. Mr Cheng is the solicitor for…

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.

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Details

Case: [2020] NSWSC 1059
Decision Date: 05 August 2020

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia was an action brought by a plaintiff against two defendants. The plaintiff alleged that the defendants had engaged in misleading and deceptive conduct by selling him shares in a company. The defendants denied the allegations and argued that the plaintiff had failed to establish his claims. The court was required to determine whether the plaintiff had established his claims against the defendants and, if so, to what extent.

The primary legal issue before the court was whether the plaintiff had established his claims against the second defendant. The court found that the plaintiff had established his claims against the second defendant and ordered that the second defendant pay the plaintiff $2.9 million in damages. The court found that the second defendant had engaged in misleading and deceptive conduct by selling the plaintiff shares in a company without disclosing that the company was insolvent. The court found that the plaintiff had suffered loss as a result of the second defendant's conduct.

The court considered the admissions made by the defendants in the proceedings and found that the second defendant had admitted to the allegations made by the plaintiff. The court noted that the second defendant had made admissions under rule 17.7 of the Uniform Civil Procedure Rules, which provided that admissions have effect as findings of fact and may be used as evidence. The court found that the second defendant's admissions were clear and unambiguous and that they established the plaintiff's claims against the second defendant.

The court ordered that the second defendant pay the plaintiff $2.9 million in damages. The court found that the amount of damages was appropriate given the extent of the second defendant's conduct and the loss suffered by the plaintiff. The court did not make any orders against the first defendant as the plaintiff had failed to establish his claims against that defendant.

Orders