Zhong v Shield Resources Pty Ltd (No 2) - [2021] NSWSC 643

Supreme Court

New South Wales

Medium Neutral Citation: Zhong v Shield Resources Pty Ltd (No 2) [2021] NSWSC 643
Hearing dates: 4 June 2021
Date of orders: 4 June 2021
Decision date: 04 June 2021
Jurisdiction: Common Law
Before: N Adams J
Decision:
1. The notice of motion filed on 3 June 2021 be returnable before me on 4 June 2021 and the time for service be abridged.
2. The notice of motion is otherwise dismissed.
3. The order of 31 May 2021 that $100,000 of the $753,200.62 paid into court on 6 January 2021 be released to the second defendant Ying (Emma) Guan be stayed until close of business on Tuesday 8 June 2021.
4. The plaintiff is to pay the defendant’s costs of today’s motion on the ordinary basis.

Catchwords:
CIVIL PROCEDURE — notice of motion seeking to set aside order under slip rule – where judgment referred to the plaintiff’s submission – where this submission was not in fact made by counsel for the plaintiff – whether case advanced by plaintiff had been determined – notice of motion dismissed

Legislation Cited:
Uniform Civil Procedure Rules 2005 NSW, rr 36.16(3A), 36.17

Cases Cited:
Zhong v Shield Resources Pty Ltd [2021] NSWSC 617

Category: Procedural rulings
Parties: Yuping Zhong (Plaintiff)
Shield Resources Pty Ltd (First Defendant)
Ying Guan (Second Defendant)
Representation:
Counsel:
S Burchett (Plaintiff)
Solicitors:
Juris Cor Legal (Plaintiff)
Rostron Carlyle Rojas Lawyers (Defendants)

File Number(s): 2020/95833
Publication restriction: Nil

Judgment (revised from ex tempore)

On 31 May 2021, I delivered a judgment in this matter and made an order, inter alia, that $100,000 of the $735,200.62 paid into court by the second defendant, Ms Ying (Emma) Guan, be released to her: Zhong v Shield Resources Pty Ltd [2021] NSWSC 617. Upon making those orders, counsel for the plaintiff, Mr Burchett, sought a stay of them for seven days in order to consider an interlocutory appeal to the Court of Appeal against my decision. I heard from the parties and ultimately stayed that order until 5.00pm on Thursday, 3 June 2021.
At 4.59pm on Thursday, 3 June 2021, the plaintiff's solicitor electronically filed a Notice of Motion seeking that the orders I made on 31 May 2021 be set aside. An unfiled copy of that Notice of Motion was e-mailed to my chambers at 5.23pm that day. The plaintiff seeks that the order that $100,000 be released to Ms Guan be set aside pursuant to r 36.16(3A) and/or r 36.17 of the Uniform Civil Procedure Rules 2005 NSW (“UCPR”). Those rules provide as follows:

36.16 Further power to set aside or vary judgment or order
…
(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.
…

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: [2021] NSWSC 643
Decision Date: 04 June 2021

CaseChat Overview and Summary

The case of Zhong v Shield Resources Pty Ltd (No 2) involved a motion seeking to set aside an order under a slip rule. The plaintiff, Zhong, sought to challenge an order that had been made in the proceedings. The defendant, Shield Resources Pty Ltd, opposed the motion. The matter was heard in the Federal Court of Australia.

The legal issue before the court was whether the notice of motion to set aside the order was valid. Specifically, the court needed to determine if the case advanced by the plaintiff had been determined, given that the judgment referred to a submission made by the plaintiff's counsel, which was not in fact made. This discrepancy raised questions about the clarity and fairness of the proceedings.

The court held that the notice of motion was defective because it did not accurately reflect the submissions made on behalf of the plaintiff. As a result, the court concluded that the case advanced by the plaintiff had not been determined in the manner suggested by the notice of motion. Consequently, the motion to set aside the order was dismissed.

The Federal Court ordered that the notice of motion be dismissed and made no further orders regarding costs or any other aspect of the proceedings. The decision underscored the importance of precision and accuracy in legal submissions and motions.

Orders