Dai v Zhu - [2013] NSWCA 134

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dai v Zhu [2013] NSWCA 134
Hearing dates: 20 May 2013
Decision date: 24 May 2013
Before: Basten JA
Decision:
(1) Execution by way of proceedings under the Bankruptcy Act 1966 (Cth) of the orders of Rothman J identified in the Schedule set out below be stayed pending determination of the proceedings in this Court seeking leave to appeal from those orders and, if leave be granted, the appeal, subject to the following conditions:
(a) that the applicants pay into court the amount of $500,000 within 28 days, subject to satisfaction of the respondents' obligation in paragraph (b);
(b) the respondents file with the Registrar an undertaking to the Court, signed by their solicitor, to consent to any application made by the applicants in the Federal Circuit Court or the Federal Court seeking an extension of time within which to comply with any bankruptcy notice issued by the respondents to a date 28 days after the determination of the proceedings in this Court;
(c) in the event that an undertaking in compliance with paragraph (b) is not proffered to the Registrar in a form acceptable to him within 14 days of the date of this judgment, the condition imposed on the applicants by paragraph (a) will lapse;
(d) if, at any time after moneys have been paid into court in pursuance of paragraph (a), the Registrar is satisfied that the respondents have failed to comply with their undertaking, the condition provided in paragraph (a) will lapse and the Registrar may arrange for the release of the moneys to the applicants, and
(e) the applicants take all necessary steps to ensure the expeditious determination of the proceedings in this Court.
(2) The application for leave to appeal and the appeal should be listed for concurrent hearings.
(3) The costs of the motion will be costs in the proceedings.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
PROCEDURE - civil - judgments and orders - whether stay should be granted pending determination of leave application and any subsequent appeal - where respondents have commenced bankruptcy proceedings to execute judgment -risk that applicants will lose power to proceed with proposed appeal - where amount in issue significant - where challenged judgment included findings regarding breach of discovery obligations and dissipation of assets
PROCEDURE - civil - judgments and orders - stay pending determination of leave application and any subsequent appeal - appropriate form of orders - whether applicants should be required to pay into court full amount of judgments - where applicants would be unable to comply - whether applicants should…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWCA 134
Decision Date: 24 May 2013

CaseChat Overview and Summary

This matter concerned an application by the applicants for a stay of execution of orders made by Rothman J, pending the determination of their application for leave to appeal and any subsequent appeal. The respondents had commenced bankruptcy proceedings to enforce the judgment, and the applicants argued that this action risked rendering them unable to pursue their appeal. The applicants also contended that the amount in issue was significant and that the judgment under challenge included adverse findings concerning breaches of discovery obligations and the dissipation of assets.

The primary legal issue before the court was whether a stay of execution should be granted, and if so, on what terms. This involved considering the appropriate form of orders, particularly whether the applicants should be required to pay the full judgment amount into court, which they asserted would be impossible. The court also had to consider alternative conditions, such as requiring affidavits regarding assets and liabilities, and the implications of any delay. Furthermore, the court's power to make orders affecting Federal Court proceedings was a relevant consideration.

Basten JA granted the stay of execution of the orders pending the determination of the application for leave to appeal and the appeal itself, subject to specific conditions. These conditions included the applicants paying $500,000 into court within 28 days, provided the respondents filed an undertaking to consent to any application by the applicants for an extension of time to comply with any bankruptcy notice issued. The stay would lapse if the undertaking was not provided within 14 days, or if the respondents failed to comply with their undertaking after moneys had been paid into court. The applicants were also required to take all necessary steps to ensure the expeditious determination of the proceedings in the Court, and the application for leave to appeal and the appeal were listed for concurrent hearings.

Orders

Orders of the court

(1) Execution by way of proceedings under the Bankruptcy Act 1966 (Cth) of the orders of Rothman J identified in the Schedule set out below be stayed pending determination of the proceedings in this Court seeking leave to appeal from those orders and, if leave be granted, the appeal, subject to the following conditions:

(a) that the applicants pay into court the amount of $500,000 within 28 days, subject to satisfaction of the respondents' obligation in paragraph (b);

(b) the respondents file with the Registrar an undertaking to the Court, signed by their solicitor, to consent to any application made by the applicants in the Federal Circuit Court or the Federal Court seeking an extension of time within which to comply with any bankruptcy notice issued by the respondents to a date 28 days after the determination of the proceedings in this Court;

(c) in the event that an undertaking in compliance with paragraph (b) is not proffered to the Registrar in a form acceptable to him within 14 days of the date of this judgment, the condition imposed on the applicants by paragraph (a) will lapse;

(d) if, at any time after moneys have been paid into court in pursuance of paragraph (a), the Registrar is satisfied that the respondents have failed to comply with their undertaking, the condition provided in paragraph (a) will lapse and the Registrar may arrange for the release of the moneys to the applicants, and

(e) the applicants take all necessary steps to ensure the expeditious determination of the proceedings in this Court.

(2) The application for leave to appeal and the appeal should be listed for concurrent hearings.

(3) The costs of the motion will be costs in the proceedings.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Dai v Zhu [2013] NSWCA 134
Hearing dates:	20 May 2013
Decision date:	24 May 2013
Before:	Basten JA
Decision:	(1) Execution by way of proceedings under the Bankruptcy Act 1966 (Cth) of the orders of Rothman J identified in the Schedule set out below be stayed pending determination of the proceedings in this Court seeking leave to appeal from those orders and, if leave be granted, the appeal, subject to the following conditions: (a) that the applicants pay into court the amount of $500,000 within 28 days, subject to satisfaction of the respondents' obligation in paragraph (b); (b) the respondents file with the Registrar an undertaking to the Court, signed by their solicitor, to consent to any application made by the applicants in the Federal Circuit Court or the Federal Court seeking an extension of time within which to comply with any bankruptcy notice issued by the respondents to a date 28 days after the determination of the proceedings in this Court; (c) in the event that an undertaking in compliance with paragraph (b) is not proffered to the Registrar in a form acceptable to him within 14 days of the date of this judgment, the condition imposed on the applicants by paragraph (a) will lapse; (d) if, at any time after moneys have been paid into court in pursuance of paragraph (a), the Registrar is satisfied that the respondents have failed to comply with their undertaking, the condition provided in paragraph (a) will lapse and the Registrar may arrange for the release of the moneys to the applicants, and (e) the applicants take all necessary steps to ensure the expeditious determination of the proceedings in this Court. (2) The application for leave to appeal and the appeal should be listed for concurrent hearings. (3) The costs of the motion will be costs in the proceedings. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - civil - judgments and orders - whether stay should be granted pending determination of leave application and any subsequent appeal - where respondents have commenced bankruptcy proceedings to execute judgment -risk that applicants will lose power to proceed with proposed appeal - where amount in issue significant - where challenged judgment included findings regarding breach of discovery obligations and dissipation of assets PROCEDURE - civil - judgments and orders - stay pending determination of leave application and any subsequent appeal - appropriate form of orders - whether applicants should be required to pay into court full amount of judgments - where applicants would be unable to comply - whether applicants should…