Wei v Chen [2012] NSWSC 751

Supreme Court New South Wales

Medium Neutral Citation: Wei v Chen [2012] NSWSC 751 Hearing dates: 4 & 5 April, 4 May, 15 June 2012 Decision date: 06 July 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: 1.Note that the documents identified in Order 1(i) - (viii) be regarded as having been served upon the first Defendant. 2.Note the undertaking of the second Defendant's solicitor to pay the filing fee in respect of the notice of motion dated 14 June 2012 and the Cross-Claim filed in court on 15 June 2012. 3.Declare that the amount payable by the Plaintiff and the first Defendant to the second Defendant is $317,005.46. 4.Order that the amount paid into court in proceedings 2012/99648, together with any additional interest accrued thereon, until the date of payment, be paid to the second Defendant in part satisfaction of the amount payable referred to in order (3): (a) as to one half of the amount held and interest no earlier than 21 days from the making of these orders; (b) as to the other half of the amount held and interest no earlier than 49 days from the making of these orders. 5.Direct that, within 7 days of the date of the reasons for judgment being published, the first Defendant be advised, in writing, of these orders and be provided with a copy of the reasons for judgment in the same manner as previous documents have been served upon him. 6.Order that there be a verdict and judgment for the second Defendant against the Plaintiff and the first Defendant in the amount of $118,044.67. 7.Order that the balance of the Statement of Claim and the Cross-Claim be dismissed. 8.Order that the Plaintiff and the first Defendant pay the second Defendant's costs of preparing the Cross-Claim and her affidavits in support thereof, and of her appearance on 5 April 2012 and 15 June 2012. 9.Order that the second Defendant pay the Plaintiff's costs of preparing the affidavits and submissions relied upon by the second Defendant, but that the first Defendant indemnify her for those costs. 10.Otherwise make no order in favour of the Plaintiff for her costs of the proceedings. 11. Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 Catchwords: Application by Plaintiff for payment of moneys out of Court to second Defendant - Initially no claim by second Defendant for moneys - Cross-Claim later filed by second Defendant for payment of moneys out of Court - No appearance by first Defendant who may have right to claim part of funds paid into Court - Court satisfied that first Defendant properly served with Statement of Claim and other documents - Plaintiff agrees that amount owed to second Defendant by Plaintiff and first Defendant is greater than amount paid into Court - Order that moneys be paid out of Court to second Defendant - Judgment for second Defendant for balance owed to her by Plaintiff and first defendant Legislation Cited: Civil Procedure Act 2005 Conveyancing Act 1919 Uniform Civil Procedure Rules 2005 Trustee Act 1925 Cases Cited: Austar Finance Group Pty Ltd v Campbell [2007] NSWSC 1493; (2007) 215 FLR 464 Cameron Pty Ltd, In the matter of C & L - GB Gazzana v Nadalan Enterprises Pty Ltd; AF Gazzana v Nadalan Enterprises Pty Ltd [2012] NSWSC 676 Chong v Super Equity Invests Pty Ltd [2012] NSWSC 27 Evergreen Tours Pty Ltd v Mclaren [2010] NSWSC 1362 Foxe v Brown [1984] HCA 69; (1984) 58 ALR 542 Harmer v FCT [1991] HCA 51; (1991) 173 CLR 264 Perpetual Trustees Company Ltd; Application of Chen [2010] NSWSC 808; (2010) 15 BPR 28,845 Category: Principal judgment Parties: Qifeng Wei (Plaintiff) Yang Chen (first Defendant) Huijuan Zhou (second Defendant) Representation: Mr I G A Archibald (Plaintiff) No appearance by the first Defendant Mr B Jacobs (second Defendant) HU Solicitors (Plaintiff) No appearance by the first Defendant Ren Zhou Lawyers (second Defendant) File Number(s): 2011/217999