Li v Deng

CATCHWORDS : PROCEDURE - adjournment - vacation of hearing date - hearing may render appeal in related proceedings nugatory - Defendant's right to proceed with defence and cross-claim made conditional on payment of costs.

CASES CITED : Markisic v Department of Community Services [2006] NSWCA 106

PARTIES : Wang Yun Deng (Plaintiff) Lin Li (Defendant)

COUNSEL : N Carney (Plaintiff) N Confos (Defendant)

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 These proceedings commenced by the filing of a Statement of Claim on 16 February 2010. The Plaintiff seeks possession of a property at 92 Boundary Road, Roseville. Directions were made and complied with for the filing of defences and affidavits so that this matter could be brought on for hearing at the earliest opportunity. It was listed for hearing before me today.

2 When I say the proceedings commenced on 16 February 2010 that does not state the full position. These proceedings are consequential proceedings on others where the present Defendant was the Plaintiff and the present Plaintiff the Defendant. In those proceedings Ms Li, the present Defendant, had sought equitable relief in relation to the same land. That equitable relief was designed to give her a proprietary interest in part of the property whether as a result of an agreement or an estoppel or a resulting trust for the provision of money to Ms Deng as Ms Li alleged. 3 Those proceedings were decided by Justice Gzell on 28 August 2009 in Ms Deng's favour. However, Ms Li has appealed to the Court of Appeal and that appeal has not yet been fixed for hearing. Nevertheless, as a result of the dismissal of Ms Li's claims before Justice Gzell, Ms Deng sought possession of the property of which she is the registered proprietor. An application was made by Ms Li to adjourn the proceedings this morning.

4 Mr Confos of counsel appeared for Ms Li to argue the adjournment. Mr Confos has been retained by Ms Li in the matter on a pro bono basis. The court is very grateful to Mr Confos for his not inconsiderable assistance in the matter. I note that Mr Confos had previously appeared for Ms Li in the proceedings before Justice Gzell and he had a good knowledge about the whole of the proceedings. The basis for the adjournment application was that Ms Li no longer wishes to retain Mr Confos to run her defence in the present case. Rather she wishes to and has applied for Legal Aid so that she can retain solicitors and other counsel in the matter. 5 The adjournment was opposed by Mr Carney of counsel for the Plaintiff. Mr Carney submitted that this was simply another delaying tactic on the part of Ms Li in the light of the history in the proceedings and her lack of success before Justice Gzell. He drew attention to what was decided in those proceedings and to the fact that the claim in the present case by Ms Li is said simply to be a variation of what was run in those proceedings. 6 The principal concern that I had in deciding this application was whether proceeding with the present proceedings was likely to render the appeal lodged in the Court of Appeal as nugatory because an order for possession might have the effect of shutting Ms Li out all together. Further, one of the claims that she makes in the present case indeed the principal one, is that Ms Deng promised that she would have a roof over her head in the property, it would appear, in return for the matters that Ms Li carried out in relation to the purchase and development of the property. If she is successful and established a life tenancy that would be a complete defence to a claim for possession.

7 Although Mr Confos appeared this morning Ms Li is effectively unrepresented because Mr Confos's brief was confined to arguing the adjournment. 8 Mr Carney rightly draws attention to the fact that the present claim by Ms Li ought to have been raised in the proceedings before Justice Gzell and on the Anshun principle is likely to be precluded from being raised in the present proceedings. I think Mr Carney has a strong point to make in that regard, but I am concerned that where Ms Li is effectively unrepresented on the substance of the proceedings, that she should not be shut out from at least being able to argue the claim she makes in defence of the proceedings together with the fact that she is not estopped from doing so in these proceedings.

9 Ms Deng I am told, and there is some evidence of this already in her affidavit, is suffering from cancer and her desire is that these proceedings be completed as soon as possible so that the property can be sold and she can return to life in China. The Plaintiff has had this one advantage so far in the proceedings that the hearing of the matter has been brought on with remarkable rapidity given when the Statement of Claim was filed and even bearing in mind the relationship of the present proceedings to the earlier equitable proceedings. 10 I think for these reasons an adjournment should be granted to Ms Li for a relatively short period of time. However, it should be done on condition, in the light of the fact that costs have already been ordered to be paid by her in the unsuccessful equity proceedings and I am told they have not been paid. It seems to me that the defence that she raises in the present proceedings ought to be framed as a cross-claim because she is making a positive claim that she has a legal interest in the property. In the same way that the claims that she made in equity were made by her as a Plaintiff, this claim should be put in a cross-claim and not merely by way of defence. 11 No reason has been shown why Ms Li should not pay the costs thrown away by reason of the adjournment. Mr Carney tells me that the Plaintiffs costs of the adjournment are in the vicinity of $5,300. That is scarcely surprising in light of the fact that he was briefed to appear, his solicitor is present and there is an interpreter present for Ms Deng for the day.

12 It seems it me that it ought to be made a condition of Ms Li being able to proceed with her claim for a life interest in the property that she pays part of that sum before she is entitled to "take her case in the present proceedings any further". I use those words because at the moment her case is pleaded as a defence, although, as I have said, it ought to be pleaded as a cross-claim. 13 Mr Confos informs me that Ms Li is currently receiving a disability pension from Centrelink at the rate of $460 per fortnight. I am informed from the bar table that she is engaged in selling chickens or the like from the property at a particular price and is making some money from that sale. Ms Li has been given a considerable indulgence in obtaining an adjournment today. It seems to me appropriate that she should actually pay part of the costs before she is permitted to proceed with the defence and her claim in the matter. I bear in mind what the Court of Appeal said in the case of Markisic v Department of Community Services [2006] NSWCA 106 in similar circumstances where a stay was sought by the successful party until costs were paid, in that case by litigants in person. The court stressed that the amount that was required to be paid so that a stay would be granted ought to be a reasonable amount bearing in mind the financial position of the person against whom the costs order was made.

14 It seems to me appropriate in the present circumstances, and bearing in mind that this case will probably not be heard for a minimum of 4 more weeks and maybe a little longer, that prior to Ms Li being permitted to advance her case she should be required to pay the sum of $1,500 to the Plaintiff. 15 I will make the following orders: (1) The hearing date of today is vacated.

(2) The Defendant is to file and serve a cross-claim setting out the claim for the life interest that she makes in paragraph 4 of the defence and evidenced in paragraphs 28 and 53 of her affidavit of 2 March 2010.

(3) That cross-claim is to be filed and served by 5pm on Friday 9 April 2010.

(4) The Defendant is to pay the costs thrown away by reason of the adjournment including the costs of today.

(5) Of those costs the Defendant is to pay the sum of $1,500 to the solicitors for the Plaintiff and until that sum is paid, but for her obligation to file the cross claim, her right to proceed on the defence and cross-claim is stayed.

(6) I stand the matter over for mention before me to 25 March 2010 at 9.30am.

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