Zhu v Wang

Case [2021] NSWCA 240


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Zhu v Wang [2021] NSWCA 240
Hearing dates: 26 August 2021
Date of orders: 7 October 2021
Decision date: 07 October 2021
Before: Gleeson JA at [1];
Payne JA at [2];
Emmett AJA at [3]
Decision:

1.   Grant leave to the appellants to file a further amended notice of appeal in the form of the Revised Notice of Appeal and direct the appellants to do so within 7 days of these reasons;

2.   Set aside Order 6 (the order for a stay) made by Payne JA on 16 July 2021;

3.   Appeal allowed in part;

4.   Set aside Orders 3, 4, 6, 7 and 8 made by the primary judge on 2 December 2020 and in lieu thereof, order:

   a.   The second appellant pay the second respondent the sum of $30,789;

   b.   The first appellant and second appellant are jointly and severally liable to pay the second respondent the sum of $107,317.90.

5.   By 14 October 2021, the appellants file with the associate to Gleeson JA submissions in writing as to the appropriate orders for costs at first instance and of the appeal;

6.   By 21 October 2021, the respondents file with the associate to Gleeson JA submissions in writing as to the appropriate orders for costs at first instance and of the appeal;

7.   By 28 October 2021, the appellants file with the associate to Gleeson JA submissions in reply in writing as to the appropriate orders for costs at first instance and of the appeal;

8.   The Court will consider those submissions on costs on the papers.

Catchwords:

CONTRACTS — termination — contractual promise to comply with terms of commercial lease — lease breached — right to terminate subject to notice requirement — peremptory termination without notice — repudiation of contract — acceptance of repudiation

CONTRACTS — parties — failure to join all necessary parties to proceedings — corporate entities distinct from individuals

Legislation Cited:

Nil

Cases Cited:

De Rucci International Pty Ltd v Zhu [2020] NSWSC 374

Zhu v Wang [2021] NSWCA 149

Texts Cited:

Nil

Category:Principal judgment
Parties: Lucy Zhu (First Appellant)
HQ Living Pty Ltd (Second Appellant)
De Rucci Bundall Pty Ltd (Third Appellant)
HQ Living (Moore Park) Pty Ltd (Fourth Appellant)
HQ Bedding Pty Ltd (Fifth Appellant)
Bing Kun Wang (First Respondent)
De Rucci International Pty Ltd (Second Respondent)
Representation:

Counsel:
First Appellant (litigant in person, on behalf of the Appellants)
G P Gee (Respondents)

Solicitors:
Auyeung Hencent & Day Lawyers (Respondents)
File Number(s): 2020/369381
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Common Law
Citation:

[2020] NSWSC 1720

Date of Decision:
2 December 2020
Before:
Rothman J
File Number(s):
2019/293452

Judgment

  1. GLEESON JA: I agree with Emmett AJA.

  2. PAYNE JA: I agree with Emmett AJA.

  3. EMMETT AJA:

Introduction

This appeal is concerned with disputes arising out of arrangements made between entities controlled by the first appellant, Ms Lucy Zhu (

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Details
AGLC
Zhu v Wang [2021] NSWCA 240
Case
[2021] NSWCA 240
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal from a decision of the primary judge concerning a dispute arising from a commercial lease. The appellants, Zhu and another corporate entity, appealed against orders made by the primary judge. The respondents were Wang and another corporate entity.

The central legal issues before the Court of Appeal were whether the respondents had validly terminated the commercial lease, and if not, whether their actions constituted a repudiation of the contract that was accepted by the appellants. The Court also considered whether all necessary parties had been joined to the proceedings, particularly in relation to the distinct legal identities of corporate entities and individuals.

The Court of Appeal found that the respondents' termination of the lease was peremptory and without the required notice, thereby constituting a breach of contract. However, the Court determined that this breach did not amount to a repudiation of the contract that could be accepted by the appellants. The Court also addressed the issue of necessary parties, implicitly finding that the corporate entities were distinct from the individuals involved.

The appeal was allowed in part. Orders made by the primary judge were set aside, and new orders were made regarding payment of sums by the appellants to the second respondent. Leave was granted to file an amended notice of appeal, and an order for a stay made by Payne JA was set aside. The Court reserved its decision on costs, directing the parties to file written submissions.

Orders

Orders of the court

1. Grant leave to the appellants to file a further amended notice of appeal in the form of the Revised Notice of Appeal and direct the appellants to do so within 7 days of these reasons;

2. Set aside Order 6 (the order for a stay) made by Payne JA on 16 July 2021;

3. Appeal allowed in part;

4. Set aside Orders 3, 4, 6, 7 and 8 made by the primary judge on 2 December 2020 and in lieu thereof, order:

a. The second appellant pay the second respondent the sum of $30,789;

b. The first appellant and second appellant are jointly and severally liable to pay the second respondent the sum of $107,317.90.

5. By 14 October 2021, the appellants file with the associate to Gleeson JA submissions in writing as to the appropriate orders for costs at first instance and of the appeal;

6. By 21 October 2021, the respondents file with the associate to Gleeson JA submissions in writing as to the appropriate orders for costs at first instance and of the appeal;

7. By 28 October 2021, the appellants file with the associate to Gleeson JA submissions in reply in writing as to the appropriate orders for costs at first instance and of the appeal;

8. The Court will consider those submissions on costs on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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