Australian Guangzhou Association Inc v Huang and ors [2001] NSWSC 1214

New South Wales Supreme Court

CITATION : Australian Guangzhou Association Inc v Huang and ors [2001] NSWSC 1214 revised - 4/12/2002 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5278/01 HEARING DATE(S) : Thursday, 6 December 2001 JUDGMENT DATE : 6 December 2001

Australian Guangzhou Association Incorporated (Plaintiff)

Zhao Bang Huang (First Defendant) PARTIES : Cathy Zhang (Second Defendant) Zue Xin Xiao (Third Defendant) Shi Jun Zhuang (Fourth Defendant)

JUDGMENT OF : Master McLaughlin

COUNSEL : G. Watkins, K. Earl (Plaintiff) L. Ma (Defendants) SOLICITORS : Lewis Yee, Solicitor (Plaintiff) Lin Tang & Co, Solicitors (Defendants) DECISION : See paragraph 45.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 6 December 2001

5278/01 AUSTRALIAN GUANGZHOU ASSOCIATION INCORPORATED -V- ZHAO BANG HUANG & ORS JUDGMENT 1 MASTER: On 27 November 2001 I appointed this day, 6 December 2001, for the hearing of an application by the defendants, Zhao Bang Huang, Cathy Zhang, Shi Jun Zhuang, Xiao Dan Su, made by way of amended notice of motion filed by those defendants on 27 November 2001. 2 By that amended notice of motion the defendants seek essentially an order in the terms of paragraph 2 thereof against the plaintiff, Australia Guangzhou Association Incorporated (to which I shall refer as "the Association" or "the plaintiff"), that: "The corporate plaintiff and all orders sought by the corporate plaintiff in the summons and notice of motion filed 31 October 2001 be struck out under Part 15 Rule 26 or Part 65 Rule 5 or Part 66 of the Supreme Court Rules or under the inherent jurisdiction of the Court upon the ground that plaintiff's solicitor has no instructions to commence proceeding in the plaintiff's name." 3 At the commencement of today's hearing, I granted leave to the defendants to amend the foregoing relief sought in paragraph 2 of the amended notice of motion by inserting a reference therein to Part 13 rule 5 of the Supreme Court Rules. 4 I have already, in the course of delivering my reasons for refusing an application for an adjournment, made on behalf of the plaintiff during the hearing this afternoon, referred in part to the procedural history of this matter. It is appropriate, however, to rehearse, at least in summary, that procedural history. 5 The substantive proceedings were instituted by summons filed on behalf of the plaintiff on 31 October 2001. That summons seeks injunctive relief against the defendants and an order that the defendants return certain property asserted to be property of the plaintiff. 6 The summons discloses the plaintiff's solicitor as being Lewis Yee, Suite 153, Level 4, 418 Pitt Street, Sydney, New South Wales 2000, the telephone number and facsimile transmission number then being set forth, and discloses that the plaintiff's address for service is Lewis Yee, Solicitor, of the foregoing address, and the telephone number and facsimile transmission number then being set forth. 7 There can have been no doubt between the parties that the essential nature of the application made by the defendants and appointed to be heard this day was a challenge to the retainer of the solicitor for the plaintiff, that challenge being grounded upon the assertion of the defendants that the plaintiff had not authorised Mr Yee, the solicitor named in the summons as solicitor for the plaintiff, to institute the proceedings. 8 The plaintiff is an incorporated Association under the Associations Incorporation Act 1984. The incorporation of the plaintiff was effected on 31 March 1994. The certificate of incorporation issued by the Department of Consumer Affairs on that date certifies in the following terms: "This is to certify that Australia Guangzhou Association Incorporated is on and from the 31st day of March 1994 incorporated under the Associations Incorporation Act 1984" 9 The evidence discloses that there has been what might be described as a dispute between two groups of members of the Association. The defendants come within one group; Mr Winson Ng, who has been and who may still be the President of the Association, comes within another group. 10 The plaintiff, having instituted the proceedings by the filing of a summons in Court before Justice Santow on 31 October 2000, also at the same time filed before his Honour a notice of motion of the same date, seeking relief in identical terms to the relief sought in prayers 1 to 5 of the summons. 11 The proceedings were stood over by Justice Santow, who was at the time the Duty Judge in the Equity Division, to 13 November 2001, when they came before Mr Justice Young, Chief Judge in Equity, who at that time was the Duty Judge in the Equity Division. 12 His Honour heard a contested application for injunctive relief of the nature sought in paragraphs 2 and 3 in the summons, and in the notice of motion. Upon the plaintiff's undertaking he made orders until further order: "(1) that the defendants and each of them be restrained from publishing, enforcing or carrying into effect the decisions of the meetings of the defendants of 23 September 2001 and 21 October 2001 as regards the plaintiff;