Federal Court of Australia

Tay v Chong [2024] FCA 1327

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rules 16.21(c) and (d) of the Federal Court Rules 2011 (Cth), paragraphs 8, 12, 17, 18, 19, 20, 25, 26, 28 and 29 of the defence dated 12 July 2024 be struck out.

2.    The respondents have leave to replead a defence.

3.    The respondents file and serve an amended defence on or before 27 November 2024.

4.    The matter be listed for a case management hearing on 19 December 2024 at 10.45 am AWST.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The respondents do pay the costs of and incidental to the interlocutory application dated 3 October 2024 forthwith, such costs to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    In 2015 and 2016, Ms Soon Kim Tay had dealings with Mr John Tse-Liang Chong about obtaining an Australian business visa. It appears that those dealings led Ms Tay to make an investment of $1.5 million in Morena Perro Pty Ltd by depositing that amount into the bank account of Morena in 2016.

2    Ms Tay says that she was induced to make the investment by representations made to her by Mr Chong. Those representations were said to arise from what she was told by Mr Chong at a meeting in July 2015, by what was stated in an email dated 4 April 2016 (April Email) and by what was said in a telephone conversation with Mr Chong in or around May 2016. The alleged representations are (a) that the $1.5 million she was investing in Morena would be capital protected (meaning that the full value of the capital would be returned at the end of the investment period); and (b) the amount she was investing would be repaid to her within 24 months.

3    Mr Chong is alleged to have made those representations on his own behalf, or as a director of Austral Migration Consultancy Pty Ltd (AMCA), or as a director of Austral Migration Consultancy Sdn Bhd (AMCB).

4    It appears to be common ground that Morena retains the amount of $1.5 million.

5    In proceedings commenced in this Court, Ms Tay claims that each of Mr Chong, AMCA and AMCB (respondents) have engaged in misleading or deceptive conduct in breach of statutory proscriptions not to do so.

6    The manner in which the case against the respondents is pleaded is similar to the way in which a separate case brought by Mr Thai Choy Yap against the respondents is pleaded. The lawyers involved for the two applicants are the same and the respondents are also represented by the same lawyers in both sets of proceedings. The two cases have been case managed together.

7    Ms Tay and Mr Yap each brought interlocutory applications to strike out certain paragraphs of the defences pleaded by the respondents in answer to their claims. The interlocutory applications were heard together and were argued on the basis that, in substance, the same points were raised as the basis for the interlocutory applications.

8    At the conclusion of the hearing of the interlocutory applications, I made orders striking out the paragraphs of the defence that were objected to by Ms Tay. I indicated that I would provide my reasons for doing so. I also reserved my decision on an application by Ms Tay for an order that the respondents pay the costs of the interlocutory application forthwith. These are my reasons for allowing the application and on the reserved costs issue.

9    The substantive contentions advanced by Ms Tay and the respondents are addressed in reasons to be published at the same time as these reasons in the proceedings brought by Mr Yap: Yap v Chong [2024] FCA 1326. Substantially for the same reasons, I upheld the interlocutory application by Ms Tay and would order that the respondents pay the costs of that application forthwith.

Associate:

Dated:    18 November 2024