Chao v Chao (No 2) [2008] NSWSC 612

New South Wales Supreme Court

CITATION : Chao v Chao (No 2) [2008] NSWSC 612

HEARING DATE(S) : 3 June 2008 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 3 June 2008

DECISION : Grant leave to defendant to re-open case.

CATCHWORDS : PROCEDURE – application to reopen case after judgment reserved – relevant considerations – whether evidence sought to be adduced relevant only to a collateral issue

CATEGORY : Procedural and other rulings

Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 CASES CITED : Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010 Smith v NSW Bar Association (1996) 176 CLR 256

PARTIES : Ping Jung Chao (plaintiff) Sheng-Chun Chao (defendant)

FILE NUMBER(S) : SC 4398/07

COUNSEL : Mr J B Simpkins SC (plaintiff) Mr N G Ford (sol) (defendant)

SOLICITORS : Helen Sin Legal Pty Ltd (plaintiff) Brischetto & Ford Solicitors (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST

BRERETON J

3 June 2008

4398/07 Ping Jung Chao v Sheng-Chun Chao JUDGMENT (ex tempore) 1 HIS HONOUR: On Thursday 15 May, after a hearing of some six days, I reserved judgment in these proceedings. By Notice of Motion filed on 23 May 2008 the defendant Sheng-Chun Chao seeks leave to re-open his defence in order to tender documentary evidence which apparently will show that there was real property in Taipei registered in his name, which was transferred to the plaintiff Ping Jung Chao in 1993. The plaintiff Ping Jung Chao opposes the application. 2 For present purposes, the principles governing such an application are to be found in the judgment of Goldberg J in Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010. They may be summarised as follows. The Court has a discretion to grant a party leave to re-open its case after final submissions have been concluded and the Court has reserved its decision. The ultimate question is whether the interests of justice are better served by allowing or rejecting the application. It is relevant to consider whether prejudice would be occasioned by the late introduction of the evidence to the other party. It will also be relevant to consider the materiality of the proposed additional evidence, and whether it could by reasonable diligence have been discovered before, or at least any explanation for its not having been adduced earlier. If there was a deliberate decision made not to call the evidence when it ought to have been called in the ordinary course of proceedings, that will typically tell decisively against allowing a reopening, although there is no hard and fast rule requiring the Court to reject an application even where the decision not to call a witness or tender a document was a deliberate one. 3 The status of the present case is that judgment stands reserved, but has not been given. It is, therefore, a less extreme case than Smith v NSW Bar Association (1996) 176 CLR 256, in which the application was made after judgment. This application was made about a week after judgment was reserved. 4 Mr Simpkins SC, for the plaintiff, argued that the evidence went to a purely collateral issue which bore only on credit, and that, consistent with the approach adopted by the High Court in Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370, a reopening to adduce evidence on matters of only marginal significance ought not be permitted. However, as was acknowledged in Goldsmith, it is sometimes difficult to maintain a rigid distinction between evidence going only to credit and evidence otherwise relevant to a fact in issue in the case. 5 One of the issues in this case is who, as between the parties, is responsible for the drawdown on the mortgage on the Horace Street property of $190,000 made on 7 February 2002, which was remitted to the parties' parents in Taiwan and, in particular, whether this drawdown was made by the defendant unilaterally and in effect on his own account, or whether it was made by him at the instance of the plaintiff and in effect on her account. 6 Part of the matrix of fact against which that issue has to be resolved is the suggestion, advanced by the plaintiff but resisted by the defendant, that that payment of $190,000 to the parents was some form of repayment of financial assistance previously provided by them to him when he was establishing his business in Australia in about 1993: the defendant says that he received no such assistance from his parents and that any money he received in 1993 was the proceeds of sale of real property held in his name in Taiwan; whereas the plaintiff and her parents denied that he had held any real property in Taiwan. 7 In that context, it seems to me that the issue to which the proposed new evidence relates is not merely a collateral credit question, but may inform the probabilities of which version of the competing cases about the $190,000 is more probable. Accordingly, I do not accept that I should decline admitting this evidence on the basis that it goes to a merely collateral issue. 8 Even if it went only to credit, this is a case which will be decided on questions of credit. As I adverted to in the course of submissions at hearing, in circumstances where the defendant asserted and the plaintiff's parents denied that there had been property registered in his name in Taiwan in the early 1990s, it would have been very easy for him to establish that assertion by a title search. Were the evidence now sought to be tendered not admitted, it would be very easy for the Court to fall into the error of inferring, from the absence of any such search, that this was one of what the plaintiff submitted were many of the defendant's fabrications. While I am not prepared to say by any means that this evidence will be decisive, or may change whatever might be the result, there is a strong possibility that its reception would avert the Court from making the error of concluding that the defendant was fabricating a case, so far as having owned property in Taiwan was concerned. In a case which is likely to turn on credit, that means that this is far from a matter of only marginal significance. 9 So far as an explanation for why this evidence was not earlier adduced is concerned, it is apparent that the issue was joined on the affidavit evidence. The defendant, in an affidavit sworn on 20 February 2008, in the course of denying that the plaintiff had invested money in his business in Australia in or about 1993, asserted that he owned a residential unit in Taipei which was sold in 1992 and that part of the proceeds were transferred to him from Taiwan. In her affidavit of 3 April 2008, the plaintiff denies the defendant's assertion that he owned any property in Taipei, and provided evidence of a deposit of about $140,000 into his account. So it can be said that the fact of ownership of a property in Taipei was plainly an issue on the affidavits by 3 April 2008. 10 In the course of the trial, the plaintiff rejected the proposition put to her that the defendant owned property in Taiwan, and her parents rejected the proposition put to each of them in more explicit terms that there had been property in Taiwan registered in the defendant's name. However, on the evidence adduced by the plaintiff in response to the present application, her father knew of the property in the defendant's name and was involved in selling it to her. 11 As Mr Ford has submitted, although the matter was in issue on the affidavits, I accept that it did assume greater significance in the course of the trial. Since the trial, it is fair to say that all reasonable endeavours have been made to obtain a title search as quickly as possible. So far as prejudice to the plaintiff is concerned, it is possible – although I am far from persuaded that it will be the case – that there will be a requirement for further cross-examination of the defendant, and further evidence from the plaintiff and her parents. The parents are in Taiwan. In the first instance, any further evidence, if it be necessary, can be given in affidavit form. Further cross-examination on that, if it is sought and permitted, may require further consideration but conceivably could be conducted by video, if not telephone. While this may involve some delay in the resolution of a matter that has been expedited, no particular prejudice arising from that delay has been identified. 12 Accordingly, I should accede to the application. Order 13 I grant leave to the defendant to re-open, in order to read: