Chen Wei v Na Yu [2019] VSCA 175

1 On 29 September 2016, following a hearing lasting six days, spread over a number of months, the Victorian Civil and Administrative Tribunal ('Tribunal') dismissed a proceeding brought by the applicants for the recovery of money which they contended had been lent to the respondent and not repaid. The Tribunal gave detailed reasons.

2 The applicants sought leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998, and, on 31 January 2018, an Associate Judge dismissed that application. Her Honour gave detailed reasons.

3 On 7 March 2019, some 372 days outside of the time stipulated under r 64.42(8) of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules'), the applicants applied for an extension of time to file an application for leave to appeal the order made by the Associate Judge. On 20 June 2019, the Judicial Registrar of this Court refused the extension application.

4 By email dated 1 July 2019, the applicants applied for the decision of the Judicial Registrar to be set aside or varied.[1] The application was referred to me by the Registrar pursuant to r 64.15(1) of the Rules and the parties attended an oral hearing at which they were self-represented.

5 For the reasons that follow, I would refuse the application to set aside or vary the decision of the Judicial Registrar.

6 In order to understand the issues that arise in the proceeding, it is necessary to recount some of the facts, drawn from the decision of the Tribunal. The respondent is the estranged daughter-in-law of the applicants. The underlying dispute concerns the recovery of $39,600 that the applicants say they lent to the respondent. This amount was comprised of $38,000, alleged to be the unpaid balance of a $60,000 loan made by them to the respondent in May 2012, and $1,600 said to have been lent by Ms Xia to the respondent in or around August 2012 to fund the purchase of an airfare to China.

7 The respondent said that the $38,000 was paid to her pursuant to a loan agreement between the applicants and Mr Wen Tao Wei ('Mr Wei Junior'). Although the respondent accepted that she received the sum of $60,000 in May 2012, she said that this was done upon the instructions of Mr Wei Junior, the true borrower. She denied that she was loaned the remaining $1,600.

8 The background to the $60,000 loan is as follows. In January 2010, before meeting the respondent, Mr Wei Junior entered into contracts of sale to purchase two apartments 'off the plan'. He financed the deposit with two unsecured loans from his parents, the applicants.

9 Mr Wei Junior and the respondent married in October 2011. In April 2012, Mr Wei Junior nominated the respondent in his place as the purchaser of the two apartments. In early May 2012, the respondent received $60,000 from Ms Xia, which the respondent said was received on behalf of Mr Wei Junior for the purpose of completing the purchase. The settlement occurred on or around 29 May 2012.

10 In June 2012, the respondent and Mr Wei Junior separated. On 2 and 3 July 2012, the respondent made two separate payments to the applicants, totalling $22,000. It was her evidence that these payments were made under the instruction of Mr Wei Junior.

11 In December 2012, the applicants commenced a proceeding in the Tribunal against the respondent, seeking the return of $38,000, being the balance of the $60,000 loan, and the further sum of $1,600 for the airfare to China. The Tribunal found in favour of the respondent.

12 On 16 November 2015, the applicants successfully appealed the Tribunal's decision in the Supreme Court. The matter was remitted back to the Tribunal for a rehearing by a different Member.

13 On 29 September 2016, following the re-hearing, a Deputy President of the Tribunal dismissed the remitted proceeding. It is this order that gave rise to the application for leave to appeal before the Associate Judge.

14 On 27 October 2016, they sought to appeal the remitted decision on the basis that they were not given a fair hearing or afforded natural justice.[2] On 31 January 2018, the Associate Judge dismissed the application for leave to appeal.[3]

15 It is apparent from that brief account that the issues before the Tribunal were largely dependent on matters of fact. The applicants asserted, and the respondent denied, that she had borrowed money and failed to return it. The respondent's account was that the applicants' son had obtained the loan. As will appear, the main argument that the applicants would seek to ventilate in this Court is that the respondent had lied and that this was demonstrated by inconsistent evidence given by her.

16 As already noted, the application for leave to appeal is substantially out of time. An application for leave to appeal must be filed within 28 days after the decision was made to which the application relates, unless otherwise allowed.[4]

17 Pursuant to r 64.08 of the Rules, the Court or the Registrar has a discretion to extend the time for the filing of an application for leave to appeal. As with the exercise of any other discretion by the Court, the Court must seek to give effect to the overarching purpose in s 7 of the Civil Procedure Act 2010, namely to 'facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute'.[5]

18 Factors that are commonly considered relevant to the exercise of the discretion under r 64.08 include the length of the delay, the reasons for the delay, the prospects of the application for leave to appeal succeeding and the extent of any prejudice to a respondent.[6]

19 An extension of time will not be granted if the application for leave to appeal 'is so devoid of merit that it would be futile to do so'.[7]

20 In Bisognin v Hera Project Pty Ltd,[8] the Court of Appeal stated that an application for review of a registrar's decision proceeds under r 64.42(8) of the Rules.[9] That rule provides that 'the Court of Appeal ... may set aside or vary any direction given or order made by an Associate Judge or the Registrar'.

21 An application for an order under r 64.42(8) is to be dealt with on the basis of the application, written cases and documents filed by the parties prior to the decision of the Associate Judge or the registrar,[10] and further material may not be relied upon except with the Court's leave.[11] I propose to determine the application for extension of time afresh.

22 The central tenet of the applicants' submissions was that their application for leave to appeal has merit, as the respondent gave false and contradictory evidence in the proceedings and this was overlooked by the Associate Judge. They also referred to several factors that contributed to the delay in bringing the application for leave to appeal, including that, in late 2017, Mr Wei was told that he had a seven per cent chance of his cancer returning and that, when their application was dismissed by the Associate Judge on 31 January 2018, they were left dazed, confused and depressed. The applicants did not address the issue of any prejudice to the respondent. The parties' submissions will be set out in further detail below.

The applicants' further submissions in support of its application to this Court

23 In support of their application for the decision of the Judicial Registrar to be set aside or varied, the applicants referred to material that was not before the Registrar. They need leave to rely on it The material includes the statement in the reasons published on 22 December 2015 of the Associate Judge[12] that the inference may be drawn that the applicants 'may suffer an injustice if leave were not granted'.[13] They also referred to the transcript of the hearing before the Associate Judge on 26 October 2017, where her Honour said, referring to the payments made to the respondent, 'can they get it back from the respondent, in this case'.

24 In addition, the applicants referred to a statement of a judge in the Trial Division on 19 February 2019 to the effect that the applicants needed to make their application for leave to appeal in this Court, and not the Trial Division, as in part explaining the delay.

25 Further, the applicants, in substance, repeated their central complaint, namely, that the respondent provided false and contradictory evidence in the proceedings. In support of this, they referred to a comment purportedly made by a Registry Officer to the effect that the respondent's material contained false information.

26 I have had regard to the affidavit material and submissions that were before the Judicial Registrar. I propose to allow the applicants to rely on the further material filed following the Registrar's decision to refuse the application for an extension of time. I have had regard to the oral submissions before me today.

27 I address below each of the relevant factors in exercising a discretion under r 64.08 of the Rules, namely the length and reasons of the delay, prospects of success of the proposed appeal and prejudice to the respondent.

Prospects of success of the application for leave to appeal

28 As noted by the Judicial Registrar, on an application for an extension of time, the prospects of success of the application are not to be assessed in the detail required in the hearing of the application for leave to appeal.[14]

29 For this reason, courts will typically refuse an extension of time on this aspect only where the outcome is clear and to avoid the futility of allowing a matter to proceed which will inevitably fail.[15] However, where this threshold is not met, it is still relevant to estimate, as best it can be done, the prospects of success and to place that assessment in the mix.[16]

30 Not all of the applicants' six proposed grounds of appeal identify an error of law. As was identified by the Judicial Registrar, the applicants' first ground contends that the Associate Judge 'granted the application to remove [the] affidavit from Court file, then dismissed our application'.

31 As set out above, the applicants' ultimate submission was that the respondent provided false and self-contradictory evidence, which was overlooked by the Associate Judge. In support of this submission, the applicants pointed to the statement in the respondent's evidence before the Tribunal that she had not been in contact with Mr Wei Junior, or his parents, since they separated. They submitted that the respondent, however, gave oral evidence that she had been in contact with Mr Wei Junior on 30 June 2012, being approximately two weeks after the separation. In light of this, the applicants submitted that the respondent had lied to both the Tribunal and the Court, which resulted in an unjust decision. Accordingly, they submitted that the decision should be set aside by this Court.

32 The respondent submitted that she had replied to such submissions made by the applicants a number of times 'but the applicants just ignore it'.

33 The circumstances in which an error of fact will give rise to an error of law as to support an appeal on a question of law are limited. It is necessary for an applicant to demonstrate some legal error and not simply an error of fact. The credibility of the evidence given by the respondent was a matter for the Tribunal to assess having regard to all of the evidence. The applicants were represented before the Tribunal and were well-placed to expose any inconsistencies in the account given by the respondent on what was the central issue in the proceeding. The resolution of that central factual question was a matter for the Tribunal.

34 The Associate Judge expressly addressed the applicants' submissions regarding the allegedly inconsistent and false evidence of the respondent. Her Honour stated that the inconsistencies in the respondent's evidence were ventilated at the hearing before the Deputy President of the Tribunal.[17] In this respect, the Associate Judge referred to the concession made by counsel for the applicants that they were bound by the findings of fact made by the Deputy President.[18]

35 The Associate Justice found that, in seeking to challenge those findings of the Deputy President, the applicants were 'attempting to impermissibly review the merits of the Deputy President's conclusions'.[19] In my respectful view, that conclusion was undoubtedly correct.

36 It follows the applicants' proposed grounds of appeal do not advance any contention or point to any material which might call into doubt the Associate Judge's conclusions in a way that would justify an extension of time. As such, there is no reasonable prospect of the proposed appeal succeeding.

37 In their written submissions and again in oral submissions before me, the applicants pointed to the following factors, which they say contributed to the delay:

(a) in late 2017, Mr Wei had been told by his doctor that he had a seven per cent chance of his cancer returning;

(b) following the dismissal of their proceeding by the Associate Judge on 31 January 2018, they were left dazed, confused and depressed;

(c) the applicants were ordered by the Tribunal to pay the respondent's costs in the sum of $23,100 and they filed an application for leave appeal that costs order in the Supreme Court in April 2018. That application was heard and dismissed on 19 February 2019;

(d) the applicants said that they had been waiting for pro bono assistance from the Victorian Bar Association's Duty Barristers Scheme.

38 In my view, none of the reasons given by the applicants, either individually or in combination, provide an adequate explanation for the very significant delay. The history demonstrates that the applicants have at least some familiarity with the processes of the Court and it was not suggested that they were ignorant of the time limit. Some leeway might be accorded given the aggregation of the factors identified. However, I do not accept that they provide a reasonable or adequate explanation for the delay.

39 The respondent pointed to the fact that she had been 'dragged into this matter over six years now' and had made considerable expenditure in legal fees, which she had not recovered from the applicants. In her oral submissions, the respondent noted that the continuation of the proceeding has been a significant burden for her and she has been prejudiced by the ongoing uncertainty. In my view, the respondent is entitled to have some certainty in relation to this matter which stretches back to 2012.

40 It is important for there to be finality in litigation, and there are requirements on all participants in the proceedings to act in a timely way that advances the expeditious administration of justice.[20] Although the power of the Court to extend time is a 'vital part of the Court's armoury to avoid injustice', there must be a good reason to do so.[21]

41 In my view, there would be significant prejudice to the respondent if the applicants were given an extension of time to bring their proposed application for leave to appeal and there is no good reason to disrupt the finality of the litigation.

42 In light of the absence of an acceptable explanation for the delay, the poor prospects of success of the application for leave to appeal and the prejudice to the respondent should the application be granted, I am not satisfied that it is in the interests of justice to extend the time in which to bring an application for leave to appeal.

43 For the reasons that I have given, the application for an extension of time must be refused.

44 Pursuant to r 64.42(11) of the Rules, the applicants are liable to pay the respondent's costs of the application to set aside or vary the decision of the Judicial Registrar on an indemnity basis, unless this Court otherwise orders. Accordingly, I will order that the applicants' pay the respondent's costs of the application on an indemnity basis.

[2] Chen Wei & Anor v Na Yu [2018] VSC 6 [60]-[64] ('2018 Reasons').

[5] Civil Procedure Act 2010 s 8(1).

[6] Gippsreal Ltd v Kenny [2016] VSCA 65 [21].

[7] Kambouris v Kiatos [2016] VSCA 266 [23], citing Muto v Secretary, Department of Planning and Community [2013] VSCA 85; (2013) 38 VR 293, 296 [13] (Nettle AP and Neave JA).

[8] [2016] VSCA 322 ('Bisognin').

[12] The parties first came before the Associate Judge in 2015 in relation to this dispute. On 22 December 2015, her Honour granted leave to the applicants to appeal from the orders made by the Tribunal on 7 October 2014, allowed the appeal and remitted the proceeding to the Tribunal for rehearing according to law. On 31 January 2018, her Honour refused the application for leave to appeal from the remitted proceeding, in which the applicants' claims were dismissed.

[13] Wei & Anor v Yu [2015] VSC 726 [37] ('2015 Reasons').

[14] Hewitt v Count Financial Ltd [2017] VSCA 354.

[15] Bunney v Ryan [2018] VSCA 326 [37].

[20] Bunney v Ryan [2018] VSCA 326 [36].