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: 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:
Solicitors:
First Appellant (litigant in person, on behalf of the Appellants)
G P Gee (Respondents)
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:
- Date of Decision:
- 2 December 2020
- Before:
- Rothman J
- File Number(s):
- 2019/293452
Judgment
-
GLEESON JA: I agree with Emmett AJA.
-
PAYNE JA: I agree with Emmett AJA.
-
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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- AGLC
- Zhu v Wang [2021] NSWCA 240
- Case
- [2021] NSWCA 240
- Decision Date
CaseChat Overview and Summary
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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