Chen v Xie & Others [2020] NSWSC 1908

Chen v Xie & Others [2020] NSWSC 1908

The alleged set-off arises from contracts (wagers) that are expressly prohibited and rendered void and unenforceable by ss 14 and 56 Unlawful Gambling Act 1998 (NSW). As a matter of statutory construction and authority, neither winnings nor the stake can be recovered, nor can any law of restitution or unjust enrichment apply. There being no arguable defence, summary judgment is appropriate and the defence must be struck out.

Parties
Plaintiff: Wenxin Chen; First Defendant: Xiogming Xie; Second Defendant: Minghui International Pty Ltd; Third Defendant: Westpac Banking Corporation
Jurisdiction
Australia
Judgment Date
23 December 2020
Procedural Posture
Civil / Summary Judgment Application
Outcome
Summary judgment for plaintiff on debt claim; defence struck out; costs awarded to plaintiff; further directions ordered regarding possession claim.
Legal Topics
Summary Judgment, Set Off, Unlawful Gambling, Illegality of Contract, Debt Recovery, Pleadings
Civil Procedure Summary Judgment Set Off Unlawful Gambling Illegality of Contract Debt Recovery Pleadings

Case Brief

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Parties

Wenxin Chen

Plaintiff

Xiogming Xie

First Defendant

Minghui International Pty Ltd

Second Defendant

Westpac Banking Corporation

Third Defendant

Procedural Posture

Civil / Summary Judgment Application

Legal Issues

  1. 1 Whether a set-off based on an unlawful gambling contract is available as a defence to a debt claim
  2. 2 Whether the pleaded set-off raises any triable issue under civil procedure rules
  3. 3 Whether restitution or unjust enrichment applies to prohibited contracts under the Unlawful Gambling Act

Ratio Decidendi

The alleged set-off arises from contracts (wagers) that are expressly prohibited and rendered void and unenforceable by ss 14 and 56 Unlawful Gambling Act 1998 (NSW). As a matter of statutory construction and authority, neither winnings nor the stake can be recovered, nor can any law of restitution or unjust enrichment apply. There being no arguable defence, summary judgment is appropriate and the defence must be struck out.

Court Disposition

Summary judgment for plaintiff on debt claim; defence struck out; costs awarded to plaintiff; further directions ordered regarding possession claim.

Orders

  • Under rule 14.28(1) Uniform Civil Procedure Rules 2005 (NSW) strike out paragraphs 10 to 18 of the Defence filed on 25 April 2020.
  • Summary judgment for the plaintiff in the sum of $1,500,000 on his action in debt against the first defendant including interest up to and including 18 December 2019.