WING YIP HOLDINGS PTY LTD v WAI LIN CHANG and ANOR [1994] NSWCA 351

WING YIP HOLDINGS PTY LTD v WAI LIN CHANG and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and COLE JJA 28 November 1994

[1994] NSWCA 351 Mahoney JA

(SUMMONS)

In this matter the Court has attempted to disentangle what the parties are agreed is a complex piece of litigation involving some $46,000. It is unfortunate that the matter should have proceeded so far in relation to such an amount of money. But the parties are entitled to litigate whatever be their disputes. They are not to be criticised for having done so.

The Court has indicated that it will grant leave to appeal in respect of the substantive orders that have been made, namely that the plaintiffs statement of liquidated claim be struck out with costs and, as would follow from that, that there be a verdict for the defendant on the cross claim with costs. They are the two orders which are set forth on page 6 of the judge's judgment.

In respect of the other order which the judge made, namely to refuse the application to file an amended statement of claim, that statement of claim is, of course, not the one which is now presented or sought to be be relied upon, and for the reasons to which reference has been made previously no order is made in relation to that.

The costs of the present application should, in my opinion, be reserved to the Court dealing with the appeal. Should the parties see fit to bring the matter to the stage of an appeal, that Court can then deal with the costs of the present application upon the basis of the facts as they then emerge.

I say this in the light, inter alia, of the fact that this is a precautionary application for leave to appeal upon the basis that leave may be necessary, notwithstanding that an appeal as of right has been filed and filed within time.

I would propose therefore that the orders be as I have indicated.