Fan v Tang [No. 2] - [2011] NSWSC 177

Supreme Court

New South Wales

Medium Neutral Citation: Fan v Tang & Ors [No. 2] [2011] NSWSC 177
Hearing dates: 14 March 2011
Decision date: 14 March 2011
Before: Slattery J
Decision:
See paragraph 25 of judgment

Catchwords: PROCEDURE - judgments and orders - after hearing and judgment Court told that the second defendant is a deregistered corporation - second defendant deregistered on 12 July 2009 before the hearing - HELD Commonwealth of Australia joined as a party - amended orders made.
Legislation Cited: Australian Securities and Investment Commission Act, 2001 (Cth)
Corporations Act, 2001 (Cth)
Cases Cited: Fan v Tang & Ors [2010] NSWSC 11
Category: Consequential orders
Parties: Plaintiff: Lap Kay Frank Fan
First Defendant: James Chi Kit Tang
Second Defendant: JV Capital Pty Limited
Third Defendant: Vicky Lai Ki Yang
Representation: Counsel:
Plaintiff - D.H.Mitchell

File Number(s): 2008/00277577

EX TEMPORE Judgment

These proceedings have returned before me because of difficulties in implementing the orders made by the Court on 17 February 2010. I gave my principal judgment in these proceedings on 28 January 2010: Fan v Tang & Ors [2010] NSWSC 11. The Court anticipated in paragraph [87] of the first judgment that such difficulties might arise.

To understand the issue that has now arisen in execution of the orders, it is necessary briefly to re-state the issues and conclusions in the proceedings.

The plaintiff, Mr Fan, brought these proceedings against the first defendant, Mr James Tang, the second defendant, J V Capital Pty Ltd, and the third defendant, Ms Vicky Yang. Mr Fan alleged that Mr Tang had misused his position as a signatory on several of Mr Fan's bank accounts and that Mr Tang who together with Ms Yang controlled J V Capital, had misapplied funds from those accounts. The application of those funds had resulted in the acquisition of a part interest in a property known for the purpose of these proceedings as "the Box Hill property". Contrary to Mr Fan's instructions the Box Hill property was acquired in the names of J V Capital and Ms Yang, not his name. Together J V Capital and Ms Yang acquired a forty percent interest in the Box Hill property with Mr Fan's funds. The Court had declared that J V Capital Pty and Ms Yang held their interests in the Box Hill property on trust for Mr Fan.

The implementation issue that arises from the making of the Court's orders relates to the proposed dealing with that forty percent interest in the Box Hill property. The other sixty percent of the Box Hill property is held by members of the Cappello family, William, John and Emanuel Cappello.

Mr Fan sought other relief in the proceedings related to Ms Yang's mortgaging of her own and J V Capital's legal interest in the Box Hill property to St George Bank Ltd by Ms Yang and Mr Tang to secure advances to them. Other findings related to the transfer of funds by Mr Tang out of Mr…

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.

Continue reading Fan v Tang [No. 2]

Details

AGLC: Fan v Tang [No. 2] [2011] NSWSC 177
Case: [2011] NSWSC 177
Decision Date: 14 March 2011

CaseChat Overview and Summary

In the matter of Fan v Tang [No. 2], the Federal Court of Australia was tasked with amending the orders of a previous judgment. The plaintiff, Mr Fan, had brought proceedings against the first and second defendants, and the Commonwealth of Australia was subsequently joined as a party. The second defendant, a corporation, had been deregistered before the hearing of the case. The court was required to address the implications of the corporation’s deregistration on the pending orders and to decide whether the Commonwealth should be joined as a party.

The primary legal issue before the court was whether the deregistration of the second defendant corporation on 12 July 2009 necessitated any amendments to the orders previously made in the case. Additionally, the court had to determine if the Commonwealth should be joined as a party in the proceedings given its potential interest in the matter. The court considered the procedural implications of the corporation's deregistration and the appropriate steps to take in light of this change.

The court found that due to the deregistration of the second defendant corporation, it was necessary to amend the orders to reflect the current status of the parties. Given the deregistration, the court concluded that the corporation was no longer a valid party to the proceedings. Furthermore, the court decided that the Commonwealth should indeed be joined as a party, considering its potential interest in the matters being adjudicated. The court thus amended the orders to reflect these findings, ensuring that all parties were accurately represented in the proceedings.

The final orders included the amendment of the previous orders to exclude the deregistered corporation as a party and to include the Commonwealth as a party in the proceedings. The court ensured that these changes were implemented to maintain the integrity and fairness of the judicial process.

Orders