Chen v Lym International

Case [2009] NSWCA 121

New South Wales


Court of Appeal


CITATION: Chen v Lym International; Chen v Marcolongo [2009] NSWCA 121
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 4 May 2009
 
JUDGMENT DATE: 
26 May 2009
JUDGMENT OF: Beazley JA at 1
DECISION: 1. Continue the stay ordered in this matter until further order;
2. Direct the parties to file any submissions as to the appointment of a receiver of the property or as to the ongoing marketing of the property pending the determination of the appeal by 4 pm, Tuesday 2 June. Any submission is to be delivered to my associate by that time.
CATCHWORDS: PROCEDURE – application for stay of judgment pending determination of appeal – trial judge ordered the defendant to transfer property –parties dispute whether substantial stamp duty will need to be paid upon the transfer of the property – parties dispute whether substantial stamp duty will need to be paid upon the re-transfer of the property if the defendant’s appeal is successful – whether the defendant’s appeal has reasonable prospects of success – whether the balance of convenience favours the grant of a stay – appropriate orders to make regarding management and marketing of property in the interim of the application for stay and the determination of the defendant’s appeal
LEGISLATION CITED: Conveyancing Act 1919, s 37A
Duties Act 1997
Legal Profession Act 2004, s 347
CASES CITED: Alexander v Cambridge Credit (1985) 2 NSWLR 685
Dadeeton Pty Ltd v Commissioner of State Taxation (2004) 88 SASR 109
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Sportscorp Australia Pty Ltd v Chief State Commissioner of State Revenue [2004] NSWSC 1029; (2004) 213 ALR 795
Vaughan v Dawson [2008] NSWCA 169
PARTIES: CA 40118/09
Yu Po Chen (Appellant)
Leonilda Marcolongo (First Respondent)
Lym International Pty Limited (Second Respondent)
CA 40119/09
Yu Po Chen (Appellant)
Lym International Pty Limited (First Respondent)
Limin Yang (Second Respondent)
Yang Liu (Third Respondent)
Westpac Banking Corporation Limited (Fouth Respondent)
FILE NUMBER(S): CA 40118/09; 40119/09
COUNSEL: CA 40118/09
D Pritchard SC; J Emmett (Appellant)
D H Mitchell (First Respondent)
T S Hale SC; S A Wells (Second Respondent)
CA 40119/09
D Pritchard SC; J Emmett (Appellant)
T S Hale SC; S A Wells (First, Second and Third Respondents)
C Hilder (Solicitor) (Fourth Respondent)
SOLICITORS: CA 40118/09
Middletons (Appellant)
Dunstan Legal (First Respondent)
Unsworth Legal (Second Respondent)
CA 40119/09
Middletons (Appellant)
Unsworth Legal (First, Second and Third Respondents)
Henry Davis York (Fourth Respondent)
LOWER COURT JURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): SC 5533/06
SC 5049/07
LOWER COURT JUDICIAL OFFICER: Hamilton J
LOWER COURT DATE OF DECISION: 18 March 2009
LOWER COURT MEDIUM NEUTRAL CITATION: Lym International Pty Ltd v Chen; Marcolongo v Lym International Pty Ltd [2009] NSWSC 182


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                          CA 40118/09
                          CA 40119/09

                          BEAZLEY JA

                          26 May 2009

Yu…

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AGLC
Chen v Lym International [2009] NSWCA 121
Case
[2009] NSWCA 121
Decision Date

CaseChat Overview and Summary

In *Chen v Lym International*, the dispute concerned an application for a stay of a judgment pending the determination of an appeal. The trial judge had ordered the defendant to transfer property. The parties disagreed on whether substantial stamp duty would be payable upon the transfer and, crucially, upon a potential re-transfer if the defendant's appeal was successful. The application before the court was to determine whether the defendant's appeal had reasonable prospects of success and whether the balance of convenience favoured granting a stay, along with appropriate interim orders for the management and marketing of the property.

The primary legal issues before the court were whether the defendant's appeal had reasonable prospects of success and whether the balance of convenience favoured the grant of a stay of the judgment. The court was also required to consider what interim orders should be made regarding the management and marketing of the property while the appeal was pending.

Beazley JA considered the prospects of success of the defendant's appeal and the balance of convenience. The court ultimately ordered that the stay previously granted in the matter would continue until further order. Directions were also given for the parties to file submissions regarding the appointment of a receiver for the property or its ongoing marketing pending the determination of the appeal.

Orders

Orders of the court

1. Continue the stay ordered in this matter until further order; 2. Direct the parties to file any submissions as to the appointment of a receiver of the property or as to the ongoing marketing of the property pending the determination of the appeal by 4 pm, Tuesday 2 June. Any submission is to be delivered to my associate by that time.

16/06/2009 - Typographical error - Paragraph(s) Heading

19/06/2009 - Typographical error - Paragraph(s) coversheet

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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