Ye v Chen

1. [1]

   HER HONOUR: The defendant seeks a summary judgment by way of an amended notice of motion filed 18 June 2021.

2. [2]

   In this Court the first plaintiff is Rebecca Haria Ye, who was the first defendant in the Local Court proceedings. The second plaintiff is Ucer Investment and Resources Management Pty Ltd (“Ucer Investment”), who was the second defendant in the Local Court proceedings. Ms Ye (“Ms Ye”) is the sole director, secretary of the second plaintiff and the appellant in these proceedings. In this Court the defendant is Yu Chen (“Ms Chen”), the plaintiff in the Local Court proceedings and the respondent in these proceedings. For convenience, and ease of understanding, I shall refer the parties by name. As Ms Ye is the directing manager of Ucer Investment, I shall refer to both plaintiffs as Ms Ye. I will refer to Ucer Investment where the claim is only against Ucer Investment. The parties relied upon a joint court book.

3. [3]

   By summons filed 8 January 2021, Ms Ye and Ucer Investment seek orders that:

4. [4]

   There are eight grounds of appeal. They are that the Magistrate erred as follows:

5. [5]

   The grounds of appeal fall into two main topics. Grounds (1) to (5) relate to the interpretation of the guarantee (the guarantee grounds) and (6) to (8) relate to a denial of procedural fairness. Grounds (1) to (5) involve a question of law. Grounds (6) to (8) involve an interlocutory decision for which leave to appeal is required: see s 40(2) of the Local Court Act 2007 (NSW).

6. [6]

   By amended notice of motion filed 18 June 2021, Ms Chen seeks:

7. [7]

   I shall start with paragraph (1) of the amended notice of motion and then the other paragraphs of the amended notice of motion. The plaintiff relies upon UCPR 50.16A and 13(4)(1)(c).

8. [8]

   UCPR 13.4(1)(c) reads:

9. [9]

   UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the Court.

10. [10]

    In General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, Barwick CJ stated at 129:

11. [11]

    In O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the Court of Appeal applied the High Court decision of Spencer v Commonwealth (2010) 241 CLR 118 (“Spencer”). Although in Spencer the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth), the following principles are of general application:

12. [12]

    Ms Ye also relies upon UCPR 50.16A. It reads:

13. [13]

    On 8 January 2021 Ms Ye and Ucer filed their appeal. Ms Chen filed her notice of motion seeking inter alia an order that the appeal is incompetent. See para 1A(1) of notice of motion.

14. [14]

    Ms Chen filed her notice of motion on the 16 March 2021. As the notice of motion was filed more than 14 days after January 8 2021, it is filed out of time and Ms Chen is not entitled to her costs of appeal unless the court orders.

15. [15]

    By amended statement of claim filed 17 September 2019, Ms Chen sued Ms Ye and Ucer Investment for damages for breach of a written agreement dated 27 April 2017 and breach of a guarantee dated 17 December 2017 seeking damages in the sum of US$50,000 (approximately AUS$72,000) in respect of migration services, which she alleges were never provided. In December 2017, Ms Chen says that Ms Ye guaranteed that she would repay that amount. By defence Ms Ye and Ucer denied the allegations.

16. [16]

    On 8 January 2020, Ms Ye and Ucer Investment filed a notice of motion which sought to vacate the hearing listed to occur on 28 February 2020 in order to allow time for Ms Ye and Ucer Investment to obtain and serve expert handwriting evidence and other expert evidence upon which they intended to rely.

17. [17]

    On 10 February 2020, the notice of motion was heard by the Magistrate, who also presided over the substantive hearing. The notice of motion was dismissed. I will refer to this decision in more detail later in this judgment.

18. [18]

    The hearing in the Local Court took place over five days; 28 February 2020, 23 and 24 September 2020, and 20 and 27 October 2020.

19. [19]

    On 11 December 2020, the Magistrate handed down her written judgment. Her Honour ordered Ms Ye and Ucer Investment to pay $72,350.66 plus interest from 1 February 2018 to Ms Chen. These amounts equate to $86,000.

20. [20]

    On 10 February 2021, the Magistrate granted a stay on terms that required Ms Ye to pay a sum into a controlled monies account within 4 weeks. This sum was comprised of $86,019.33 (being the judgment sum plus interest) plus $150,000 (said to be 75% of Ms Chen’s total legal costs on the indemnity basis). The total sum required to be paid was $236,000.

21. [21]

    On 9 March 2021, the judgment sum ($86,019.33) was paid into a controlled moneys trust account. In order to obtain the remaining amount for security for costs, Ms Ye placed her house on the market.

22. [22]

    On 23 March 2021, the Magistrate ordered Ms Ye and Ucer Investment to pay Ms Chen’s costs for the Local Court proceedings, assessed on an indemnity basis.

Prior procedural decisions in this Court

1. [23]

   The first notice of motion was heard (initially on an urgent ex parte basis) by the common law duty judge. It sought freezing and other orders directed to the stay granted by the Magistrate.

2. [24]

   On 22 March 2021, Beech-Jones J made the following relevant orders:

3. [25]

   Ms Ye has paid into Ms Chen’s solicitor’s account the sum of $150,000. Hence, she has complied with order (1)(ii) above.

4. [26]

   At the outset of the hearing of the notice of motion filed 16 March 2021, I asked counsel for Ms Chen why this application for summary judgment was an appropriate course, rather than hearing the application for an extension of time to appeal in relation to the interlocutory decision for leave to appeal and the appeal itself together. Counsel for Ms Chen referred to Khanna v Sabi Foods International (Aust) Pty Ltd [2016] NSWSC 1009 (“Khanna”) and later to Makucha v Sydney Water Corporation [2013] NSWCA 177 (“Makucha”).

5. [27]

   In Khanna, the plaintiff was self represented in the Local Court and on the defendant’s application for summary judgment, Hall J made findings that the summons was filed out of time and that none of the appeal grounds raised a question of law, or one of mixed fact and law, nor did they identify any error in the Magistrate’s decision. His Honour dismissed the plaintiff’s appeal pursuant to UCPR 13.4.

6. [28]

   In Makucha, Barrett JA also considered an application pursuant to UCPR 13.4 to dismiss a summons seeking leave to appeal in the Court of Appeal. At [6] his Honour said that “[t]he desirable course is accordingly to move direct to a consideration of the points of appeal and the question whether, as Sydney Water contended, the appeal proceedings are frivolous or vexatious or disclose no reasonable cause of action.” Similarly, his Honour said at [8] that “[t]he preferable course is… to address the substance of the complaints the appeal points advance.”

7. [29]

   The facts in Makucha are rare. The self represented appellant’s main contention was that the primary judge was not a judge of the Supreme Court because he did not, upon his appointment, swear the necessary oaths. Mr Makucha said therefore it followed that all judicial acts purportedly performed by the primary judge were nullities, including the several orders he made in favour of Sydney Water and against him in the equity division proceedings. Mr Makucha further contended that what the points of appeal referred to as the “de facto doctrine” did not avoid the consequence of nullity. There was an apparent contention that the proceedings in the equity division should have been by trial by jury (or perhaps that proceedings in the Court of Appeal should been).

8. [30]

   It is trite law, but each case depends on its facts. These two cases cited by counsel for Ms Chen involve rare circumstances.

9. [31]

   More specifically, in Ye v Chen [2021] NSWSC 272, Beech-Jones J stated at [7] that summary judgment applications for appeals on questions of law will very rarely be entertained in advance of the hearing of the final appeal. I have expressed the same view in earlier cases. This is because applications for an extension of time to appeal, leave to appeal and the appeal itself can be dealt with together more expeditiously, as there is an overlap of the issues that need to be determined for each application. The hearing of a summary judgment application may take half a day of Court time (as it did here).

10. [32]

    The time it takes to decide a summary judgment application, in order to establish whether the appeal is hopeless, is about the same time as it would take to decide the whole appeal (including applications for extension of time and leave). This is because the issues raised on appeal have to be canvassed in both the summary judgment application and appeal while the hearing of the whole appeal results in a finalisation (subject to an appeal from that decision). The hearing of the appeal itself is a much better use of Court time and does not increase both parties’ legal costs.

11. [33]

    Section 39(1) of the Local Court Act provides that a party to proceedings before the Local Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

12. [34]

    Section 40(1) of the Local Court Act provides that a party to proceedings before the Local Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court, but only by leave of the Supreme Court.

13. [35]

    Section 40(2) of the Local Court Act also provides that a party to proceedings before the Local Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves an interlocutory judgment or order and an order as to costs, may appeal to the Supreme Court, but only by leave of the Supreme Court.

14. [36]

    Section 41 of the Local Court Act provides that this Court may determine an appeal made under ss 39(1) or 40(1) by either (a) varying the terms of the judgment or order, (b) setting aside the judgment or order, (c) setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court’s directions, or (d) dismissing the appeal.

15. [37]

    As previously stated, on 12 July 2018, Ms Chen filed a statement of claim in the Local Court seeking damages for breach of the written agreement and breach of the written guarantee in the sum of $72,350.66 plus interest and costs.

16. [38]

    By amended defence dated 8 October 2019, Ms Ye and Ucer Investment denied all the allegations made against them.

17. [39]

    On 11 December 2020, the Magistrate entered judgment in favour of Ms Chen against Ms Ye and Ucer Investment in the sum of $72,350.66 plus interest from 1 February 2018 and costs. The Magistrate made an order that the sum of $30,000, which was paid into court by way of security for costs by Ms Ye be released forthwith. On 22 March 2021, the Magistrate ordered Ms Ye and Ucer investment to pay Ms Chen’s costs on an indemnity basis.

18. [40]

    I shall refer to appeal grounds (6) to (8) that deal with the issue of denial of procedural fairness, whether an extension of time to appeal should be granted and the leave to appeal application as these issues are intertwined. I will then deal with the appeal grounds (1) to (5) that relate to the guarantee.

19. [41]

    The refusal to allow a party to rely upon experts’ reports would normally be considered an interlocutory decision, for which leave of the Court is required (see s 40(2) of the Local Court Act). Ms Chen submitted that aside from leave being required, Ms Ye’s application is out of time and she needed to have applied for an extension of time in relation to the procedural fairness issue.

Extension of time

1. [42]

   UCPR 50.3 concerns “Time for Appeal” it relevantly reads:

2. [43]

   If the material date is 12 March 2020 (that is 28 days from the interlocutory decision), then Ms Ye’s appeal is filed out of time and she needs apply for an extension of time to appeal and inter alia to provide a reason for the delay. If the material date is 11 December 2020, the appeal is filed in time.

3. [44]

   The length of the delay is 10 months. If Ucer Investment wished to appeal the interlocutory decision (made on 12 February 2020), her summons ought to have been filed within 28 days (ie by 12 March 2020). The summons was filed on 8 January 2021, some 10 months later.

4. [45]

   Ms Ye has provided no explanation for the delay, and no explanation must be an inadequate explanation. The Court should infer that there is no reason for the delay which could assist Ms Ye to resist the present application for dismissal. This is particularly so in view of the conduct of Ms Ye during the period of delay. Namely, Ms Ye made the forensic decision to not appeal the interlocutory decision and instead proceed with the substantive trial, which was conducted over five days during the period from 28 February 2020 to 27 October 2020.

5. [46]

   During that period, the matter occupied even further days of Local Court time with respect to the hearing and the determination of yet further notices of motion. For example, another application became necessary because Ms Ye and Ucer Investment did not consent to lay witnesses giving evidence via audio visual link from overseas, notwithstanding the outbreak of COVID-19.

6. [47]

   There was no hint of a potential appeal in respect of the interlocutory decision. Only after the judgment was prepared and issued on 11 December 2020, was the summons filed on 8 January 2021 via new representatives (which themselves were replaced on 10 March 2021 by the current solicitor for Ms Ye and Ucer Investment).

7. [48]

   Moreover, the delay has continued since the summons was filed on 8 January 2021. On 9 February 2021, Ms Chen provided Ms Ye with submissions which addressed the incompetency of the summons to the extent that it concerns Ucer Investment.

8. [49]

   However, the Company has made no substantive response to those submissions or applied for the leave it requires to maintain the Summons. As a result, Ms Chen has been forced to incur further costs regarding the Motion.

9. [50]

   So far as whether leave to appeal should be granted, Counsel for Ms Chen submitted that the interlocutory decision explained why the expert handwriting evidence was unnecessary to resolve the dispute. In short, even if a handwriting expert opined that Ms Ye did not sign the agreement in April 2017, that would not address the volume of evidence which occurred after that date (such as the lay evidence of Ms Chen and three other lay witnesses concerning three face to face meetings with Ms Ye which occurred in July 2017, October 2017 and December 2017 at a restaurant near Ms Ye’s home).

10. [51]

    Counsel for Ms Ye submitted that the appeal is brought out of time because the material date is when the Magistrate ‘pronounced’ her interlocutory decision, and so it was incumbent upon Ms Chen to appeal the interlocutory decision within 28 days of its pronouncement (in February 2020).

11. [52]

    This submission misunderstands Ms Ye’s grounds in the summons. The correct material date in the present case is 11 December 2020 as that is when the decision was pronounced and the summons commencing the appeal was brought within time as it was filed on 8 January 2021.

12. [53]

    It is not incumbent on a party to appeal each and every interlocutory decision it is dissatisfied with, more so in a Local Court case where the sum involved is a modest one. Such a course of conduct is contrary to established legal principles geared towards practice and procedure and ultimately to the proper administration of justice. Ms Ye submitted that the decision to refuse leave for her to rely on expert evidence affected the final result so that a miscarriage of justice has occurred.

13. [54]

    Importantly, despite refusing Ms Ye’s application the Magistrate was critical of her in the final decision, for failing to adduce evidence “as to how in technical terms a person other than [Ms Ye] could use her WeChat ID”.

14. [55]

    Additionally, had Ms Ye appealed the interlocutory decision at the time it was made, she would have faced a very difficult task in convincing an appellate Court that a point of practice and procedure warrants appellate intervention before the final hearing. No doubt Ms Chen would have deployed the oft-cited statement of Sir Frederick Jordan in re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at p 323:

15. [56]

    Ms Ye would have required leave under s 40 (2)(a) of the Local Court Act.

16. [57]

    In these circumstances the correct material date in the present case is 11 December 2020 and the summons dated 8 January 2021 was filed within time and no question of delay arises.

17. [58]

    The refusal of leave and the subsequent criticism may, arguably, warrant a conclusion that a substantial miscarriage has been occasioned. This must be properly determined at the final hearing.

The Magistrate’s ex tempore reasons – 12 February 2020

1. [59]

   It is necessary to set out the Magistrates interlocutory decisions and the portion of her substantive decision that refers to her earlier interlocutory decision.

2. [60]

   The hearing was set down on 28 February 2020 for five days. On 8 January 2020, Ms Ye and Ucer Investment filed the notice of motion seeking orders for the production of documents; that directions be made for the provision of expert handwriting evidence and other experts upon which Ms Ye and Ucer Investment’s intend to rely; Ms Chen make available the purported original signed agreement, receipt and guarantee referred to in the affidavit of Ms Chen for inspection and analysis by Ms Ye and Ucer Investment’s expert or experts; and that the hearing date be vacated.

3. [61]

   On 12 February 2020, the Magistrate gave ex tempore reasons in dismissing Ms Ye and Ucer Investment’s notice of motion. The relevant portions of the reasons are as follows (CB 526):

4. [62]

   After analysing the evidence, the Magistrate continued (CB 529-530):

The Magistrate’s reasons in her substantive judgment – 11 December 2020

1. [63]

   Later in the Magistrate’s substantive written judgment dated 11 December 2020, Her Honour referred to the earlier interlocutory decision by saying at [19] and [23]:

2. [64]

   At the hearing, the Magistrate stated that the versions given by Ms Chen and Ms Ye were irreconcilable. In analysing the evidence, the Magistrate stated that the conflicting versions of Ms Chen and Ms Ye (the reference to Ms Ye should be read to include Ucer Investment here) and adopted the correct approach to be taken in these circumstances, namely that set out in Chrdias v Bhatt Vaidya & Rosybarb Pty Ltd [2014] NSWSC 1253.

3. [65]

   Ms Ye’s (and Ucer Investment’s) defence was that Ms Ye pleaded that she did not know Ms Chen, she did not speak to Ms Chen, did not exchange WeChat messages or emails with her, she did not sign the agreement, she never met Ms Chen or any of her witnesses in Sydney in 2017, she did not write out and sign the guarantee on December 2017, she did not participate in the Adelaide Visa WeChat group and she did not prepare the direction for completion by Ms Chen in relation to a refund. Further, neither she nor Ucer Investment has ever had anything to do with migration services.

4. [66]

   It is my view that, the denial of procedural fairness ground of appeal only became apparent when the Magistrate delivered her substantive judgment. Ms Ye admitted that she registered WeChat ID ‘rebeccahye’ and that she is depicted in the profile picture but her evidence was that her WeChat account was hacked.

5. [67]

   The Magistrate made a finding that no evidence was adduced as to how in technical terms a person other than Ms Ye could use her WeChat account. However, in her earlier ex tempore judgment the Magistrate stated that the expert evidence Ms Ye wished to rely upon “is of no evidence in this case”.

6. [68]

   The Magistrate also formed the view that by comparing the handwriting on the agreement, the guarantee, the receipt and the affidavit verifying the defence, the formation of the letters “R”, “Y” and “e” were very similar. Her Honour also made a finding that in the guarantee and the defence, the formation of the letters in “Rebecca” were very similar having previously denied the opportunity for Ms Ye to obtain a handwriting expert, and acknowledging that this was a discretionary decision in circumstances where there had been a hearing date allocated.

7. [69]

   It is arguable that the material date is the date of the substantive decision because it only became apparent then that the Magistrate was critical of the lack of expert evidence. It is at least arguable that it was only when the substantive decision was handed down that it gave rise to the procedural fairness ground of appeal. If this is so, it is arguable that an extension of time to appeal and leave to appeal are not required. So far as the denial of procedural fairness ground as referred to earlier is concerned, it raises a question of law.

8. [70]

   Ms Ye and Ucer Investment’s arguments in relation to applications and an extension of time to file the appeal, leave to appeal and procedural fairness may be weak but I cannot say they are hopeless. Nor are they incompetent.

9. [71]

   In Ms Ye’s written submissions, it was conceded that these guarantee appeal grounds only come into play if she is successful with the procedural fairness grounds of appeal. However, in oral submissions, it appears that Ms Ye resiled from that position and counsel acknowledged that the written submissions were prepared in a manner that required some correction. In order to determine an application for summary judgment, I should take Ms Ye’s appeal grounds at their highest. Therefore, I will take into account her counsel’s oral submissions on this topic.

10. [72]

    The guarantee reads as follows:

11. [73]

    In relation to the guarantee the Magistrate continued at [35]-[40]:

12. [74]

    Throughout the years of the Local Court proceedings, including the protracted trial, neither Ms Ye nor Ucer Investment ever pleaded any complaint regarding the guarantee, even though they were represented at all times.

13. [75]

    Ms Chen referred to [34]-[40] and submitted that the Magistrate applied the correct legal test and correctly interpreted the guarantee.

14. [76]

    Ms Chen submits that appeal ground (1) is hopeless because the express terms of the guarantee are not a “mere representation” but rather establish a clear cut promise to refund should Ucer Investment breach the primary agreement by failing to provide the reference number of the Department of Home Affairs in respect of submitted ‘records on migration’ ‘for Yu Chen’.

15. [77]

    Appeal ground (2) is hopeless because the Magistrate correctly construed that the guarantee was addressed to Ms Chen and that Ms Ye would make the refund by considering “the general setting in which the contract has come into existence” and “[e]vidence of surrounding circumstances” see: Ankar v National Westminster Finance (1987) 70 ALR 641 per Deane J at 648, and Codelfa Construction v State Rail Authority of New South Wales (1982) 41 ALR 367 per Mason J at 374 (“Codelfa”).

16. [78]

    Appeal grounds (2) and (3) are also hopeless as the Magistrate made no construction error in concluding that Ms Chen and Ms Ye entered into a contract of guarantee based on the evidence of the surrounding circumstances. Also, appeal grounds (2) and (4) are hopeless because the Magistrate did not improperly imply terms into the guarantee. Appeal ground (5) is hopeless because no law obliged the Magistrate to resolve any ambiguity in favour of Ms Ye.

17. [79]

    In conclusion, appeal grounds (1)-(5) are generic, and they reflect no genuine link with, or appreciation of, the content of [34]-[40] of the judgment which they purport to attack.

18. [80]

    To the extent that the summons concerns Ms Ye it is hopeless and it is not appropriate for the summons to be maintained because that will waste resources, for which Ms Ye is unlikely to pay as she is impecunious and unreliable.

19. [81]

    Ms Ye’s case regarding the guarantee is twofold. Firstly, she argues that the guarantee was not signed by her and the refusal of leave to adduce expert handwriting evidence on this issue is a denial of procedural fairness.

20. [82]

    Secondly, and as a direct result of the interlocutory decision made by the learned Magistrate, Ms Ye was compelled to also argue an alternative case on the construction of the document purporting to be a guarantee.

21. [83]

    Whether the Magistrate was correct in construing the written document as a guarantee has to be properly explored at a final hearing. This is because there is a question regarding:

22. [84]

    The above arises only if it is found on appeal that it was procedurally fair to refuse leave to rely on expert evidence.

23. [85]

    As such for the following reasons relief under UCPR 13.4 should not be granted. Firstly, the respondent has to merely demonstrate that there is a real possibility that the correctness of the learned Magistrate’s final decision was affected because of the error in the interlocutory decision: See Gerlach v Clifton Bricks Pty Ltd [2002] HCA 222 at [4] – [7].

24. [86]

    Secondly, even if it is held on this motion that there was no unfairness in refusing such leave, a triable question still remains regarding the construction of the guarantee.

25. [87]

    Thirdly, much of the applicant’s submissions are criticisms of the conduct of the respondent and are anchored on the findings of fact made by the learned Magistrate, which are dependent on success on appeal.

26. [88]

    For these reasons it is submitted that the respondent has ‘more than fanciful’ prospects on appeal.

27. [89]

    The interpretation of a guarantee is a question of law. I accept that some of these grounds of appeal in relation to the guarantee were not argued in the Local Court. At the hearing of the appeal, Ms Ye and Ucer Investment will need to give reasons why they should be raised for the first time on appeal.

28. [90]

    The terms of the guarantee do not contain the word “guarantee” and while it appears that it was signed by Rebecca Ye, she is also the director of Ucer Investment. Ms Ye and Ucer Investent also raise whether the terms of guarantee were ambiguous and reference should have been made to the surrounding circumstances to objectively known to both parties: see Codelfa.

29. [91]

    While these grounds of appeal may be weak, I cannot say that they are hopeless. Nor can I say that they are incompetent. Ms Ye and Ucer Investment should be afforded the opportunity to fully argue whether the appeal was filed in time, leave to appeal and the appeal grounds set out in the summons. For these reasons, Ms Chen’s amended notice of motion filed 18 June 2021 is dismissed.

30. [92]

    Ms Chen resides in Canada and appears to have no assets in New South Wales. Ms Ye has already provided $236,000 for security for costs into Ms Chen’s solicitors’ trust account. While I accept that Ms Chen’s costs were ordered to be paid on an indemnity basis in the Local Court, it is my view the sum of $236,000 is more an adequate sum for security for costs. I might add Ms Chens costs far outweigh the verdict amount. In these circumstances, Ms Ye should not be obliged to pay any further sum for security for costs.

31. [93]

    Costs are discretionary. Costs normally follow the event. Ms Chen has been unsuccessful in seeking to have Ms Ye’s appeal dismissed. Pursuant to UCPR 5O and 16A the defendant should not be entitled to costs unless the Court otherwise orders. The notice of motion was filed on 16 March 2021 which appears to be more than 14 days after 8 January 2021. Ms Chen should pay Ms Ye’s and Ucer Investment’s costs of the amended notice of motion.

32. [94]

    As it is my view that the amount of security for costs lodged by Ms Ye is more than adequate and the defendant was unsuccessful with their motion, in relation to [1C] and [1D] of the amended notice of motion, I decline to remove the stay on the execution of the writ for levy of property. I also decline to order that the sum of $86.019.33, which has been transferred on behalf of Ms Ye and Ucer Investment’s to Ms Chen's solicitors’ trust fund should now be dispersed to Ms Chen in payment of Ms Ye and Ucer Investment’s liability to Ms Chen arising from the judgment sum together with pre judgment interest.

33. [95]

    Ms Chen’s amended notice of motion filed 18 June 2021 is dismissed. Ms Chen is to pay the Ms Ye’s costs.

    1. (1)

       Ms Chen’s amended notice of motion filed 18 June 2021 is dismissed.

    2. (2)

       The defendant is to pay the plaintiffs’ costs on an ordinary basis.