Australian Jade Mining Limited v Li

[2021] NSWCA 251

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Australian Jade Mining Limited v Li [2021] NSWCA 251

Hearing dates:

14 October 2021

Date of orders:

20 October 2021

Decision date:

20 October 2021

Before:

Macfarlan JA

Decision:

(1)   Decline to extend the time for the filing of the Notice of Appeal.

(2)   Dismiss the appeal on the basis that it is out of time.

(3)   Order the appellants to pay the respondent’s costs of the appeal.

Catchwords:

APPEALS – procedure – application to extend time for filing Notice of Appeal – no realistic prospect of success on appeal – no reasonable explanation for delay – extension of time refused and appeal dismissed

Legislation Cited:

Australian Consumer Law (NSW)

Fair Trading Act 1987 (NSW), ss 27, 28, 32

Uniform Civil Procedure Rules 2005 (NSW), r 14.14(2)

Cases Cited:

Houghton v Arms (2006) 225 CLR 553; [2006] HCA 59

O’Brien v Dawson (1942) 66 CLR 18; [1942] HCA 8

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35

Category:

Procedural rulings

Parties:

Australian Jade Mining Limited (First Appellant)
De Hong Yu (Second Appellant)
Haolin Li (Respondent)

Representation:

Counsel:
T Atkin (solicitor) (Appellants)
D Robertson (Respondent)

Solicitors:
Maddocks Lawyers (Appellants)
Lin Tang & Co Lawyers (Respondent)

File Number(s):

2021/112443

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2021] NSWDC 93

Date of Decision:

26 March 2021

Before:

A Coleman SC DCJ

File Number(s):

2019/363268

Judgment

1. The respondent to this appeal, Mr Haolin Li, seeks an order that the appeal be dismissed on the basis that the Notice of Appeal was filed out of time. The appellants acknowledge that their Notice of Appeal was filed late but seek an order extending the time for its filing. The respondent also seeks an order that in the event that the appeal remains on foot the appellants provide security for the respondent’s costs of the appeal. The appellants in turn seek in that event an order staying the judgment below.

2. In the proceedings at first instance the respondent relevantly alleged that he had been induced by misleading and deceptive conduct of the first appellant and one of its directors, the second appellant, to enter in September 2017 into an Investment Agreement relating to investment by the respondent in proposed jade mining in Australia with which the appellants were associated. The agreement provided that for that purpose the respondent was to “transfer” amounts totalling AUD $1.2 million to GWM Resources NL by 30 November 2017. The respondent made payments of $150,000 and $184,692.90 (totalling $334,692.90). When the Investment Agreement did not proceed, he demanded, but did not get, his money back.

3. The respondent accordingly commenced recovery proceedings in the District Court, against both the appellants and GWM Resources. Proceedings against GWM Resources were however discontinued as it was placed into liquidation.

4. By judgment of 26 March 2021, A Coleman SC DCJ relevantly found that the appellants had both engaged in misleading and…