Farkas v Ping; Wang v Farkas - [2013] NSWCA 440

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Farkas v Ping; Wang v Farkas [2013] NSWCA 440
Hearing dates: 9/12/2013 and 12/12/2013
Decision date: 12 December 2013
Before: Leeming JA
Decision:
(1) Note the acceptance of the undertaking to the Court proffered by Mr Wang on behalf of him and wife in the terms of paragraph 3 of MFI 1:
In the event that:
(i) Mr Farkas has removed the writ over all applicants' properties, and
(ii) Judgment continues to be reserved from the Court of Appeal at the end of February 2014,
then the applicants will not oppose Mr Farkas' application to put in place a new form of security, either a bank guarantee or cash term deposit, commencing on 1 April 2014 with the time of lodgement and terms of the security to be determined as is appropriate by the Court at the time, and in the same amount as the existing guarantee.
(2) Note that the original ANZ bank guarantee in the amount of $411,813 remains lodged with the Registrar of the Court of Appeal supporting the interlocutory regime originally made on 9 September 2013 and modified by me.
(3) Confirm that the stay of execution of the writ reflected in order 3 made on 9 September 2013 remains in place.
(4) To the extent necessary, stay the execution by Mr Farkas of the order challenged by the proceedings in this Court, namely the order made on 20 May 2011 by the District Court of NSW, until further order.
(5) Direct that Mr Farkas take all necessary steps to remove the registration of the writ on all properties of Mr Wang and his wife within seven days.
(6) Grant both parties liberty to apply on two days' notice. In the event that liberty to apply in the vacation is sought, then that liberty should be exercised in the third week of January when I am sitting.
(7) Otherwise dismiss the respondent's amended notice of motion dated 11 December 2013 and the applicants' notice of motion filed 10 December 2013.
(8) No order as to costs.
[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: PRACTICE AND PROCEDURE - stay pending appeal - interpretation of effect of interlocutory orders
Legislation Cited: Civil Procedure Act 2005
Evidence Act 1995
Category: Interlocutory applications
Parties: Gu Y Ping (first applicant)
James Wang (second applicant)
George Farkas (respondent)
Representation: Counsel:
First applicant in person for self and wife
Respondent in person

File Number(s): 2013/22988
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-05-20 00:00:00

Before:

North J

File Number(s):

2006/16085; 2006/16064

Judgment

LEEMING JA: It is 3.54pm on 12…

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 Farkas v Ping; Wang v Farkas

Details

AGLC: Farkas v Ping; Wang v Farkas [2013] NSWCA 440
Case: [2013] NSWCA 440
Decision Date: 12 December 2013

CaseChat Overview and Summary

The proceedings involved Mr Farkas and Mr and Mrs Wang. Mr Farkas sought to execute a writ against the properties of Mr and Mrs Wang. Mr and Mrs Wang sought to stay the execution of this writ pending an appeal. The matter came before Leeming JA in the Court of Appeal of New South Wales.

The primary legal issue before the Court was the interpretation and effect of interlocutory orders concerning the stay of execution of a writ and the provision of security. Specifically, the Court had to determine the conditions under which a new form of security could be substituted for an existing bank guarantee and the continued effect of a stay of execution.

Leeming JA considered an undertaking offered by Mr Wang on behalf of himself and his wife. This undertaking was conditional on Mr Farkas removing the writ from all the applicants' properties and the Court of Appeal reserving judgment beyond February 2014. If these conditions were met, Mr and Mrs Wang would not oppose Mr Farkas' application to substitute a new security, such as a bank guarantee or cash term deposit, commencing on 1 April 2014, in the same amount as the existing guarantee. The Court noted that the original ANZ bank guarantee remained lodged with the Registrar of the Court of Appeal.

The Court ordered that the undertaking be noted, that the original bank guarantee remain lodged, and that the stay of execution of the writ, as reflected in a previous order, would continue. Furthermore, the Court stayed the execution by Mr Farkas of the District Court order being challenged until further order, and directed Mr Farkas to take steps to remove the registration of the writ from the properties within seven days. Both parties were granted liberty to apply on short notice, with specific directions for vacation sittings. The amended notice of motion of Mr and Mrs Wang and the notice of motion of Mr Farkas were otherwise dismissed, with no order as to costs.

Orders

Orders of the court

(1) Note the acceptance of the undertaking to the Court proffered by Mr Wang on behalf of him and wife in the terms of paragraph 3 of MFI 1:

In the event that:

(i) Mr Farkas has removed the writ over all applicants' properties, and

(ii) Judgment continues to be reserved from the Court of Appeal at the end of February 2014,

then the applicants will not oppose Mr Farkas' application to put in place a new form of security, either a bank guarantee or cash term deposit, commencing on 1 April 2014 with the time of lodgement and terms of the security to be determined as is appropriate by the Court at the time, and in the same amount as the existing guarantee.

(2) Note that the original ANZ bank guarantee in the amount of $411,813 remains lodged with the Registrar of the Court of Appeal supporting the interlocutory regime originally made on 9 September 2013 and modified by me.

(3) Confirm that the stay of execution of the writ reflected in order 3 made on 9 September 2013 remains in place.

(4) To the extent necessary, stay the execution by Mr Farkas of the order challenged by the proceedings in this Court, namely the order made on 20 May 2011 by the District Court of NSW, until further order.

(5) Direct that Mr Farkas take all necessary steps to remove the registration of the writ on all properties of Mr Wang and his wife within seven days.

(6) Grant both parties liberty to apply on two days' notice. In the event that liberty to apply in the vacation is sought, then that liberty should be exercised in the third week of January when I am sitting.

(7) Otherwise dismiss the respondent's amended notice of motion dated 11 December 2013 and the applicants' notice of motion filed 10 December 2013.

(8) No order as to costs.

[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

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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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Medium Neutral Citation:	Farkas v Ping; Wang v Farkas [2013] NSWCA 440
Hearing dates:	9/12/2013 and 12/12/2013
Decision date:	12 December 2013
Before:	Leeming JA
Decision:	(1) Note the acceptance of the undertaking to the Court proffered by Mr Wang on behalf of him and wife in the terms of paragraph 3 of MFI 1: In the event that: (i) Mr Farkas has removed the writ over all applicants' properties, and (ii) Judgment continues to be reserved from the Court of Appeal at the end of February 2014, then the applicants will not oppose Mr Farkas' application to put in place a new form of security, either a bank guarantee or cash term deposit, commencing on 1 April 2014 with the time of lodgement and terms of the security to be determined as is appropriate by the Court at the time, and in the same amount as the existing guarantee. (2) Note that the original ANZ bank guarantee in the amount of $411,813 remains lodged with the Registrar of the Court of Appeal supporting the interlocutory regime originally made on 9 September 2013 and modified by me. (3) Confirm that the stay of execution of the writ reflected in order 3 made on 9 September 2013 remains in place. (4) To the extent necessary, stay the execution by Mr Farkas of the order challenged by the proceedings in this Court, namely the order made on 20 May 2011 by the District Court of NSW, until further order. (5) Direct that Mr Farkas take all necessary steps to remove the registration of the writ on all properties of Mr Wang and his wife within seven days. (6) Grant both parties liberty to apply on two days' notice. In the event that liberty to apply in the vacation is sought, then that liberty should be exercised in the third week of January when I am sitting. (7) Otherwise dismiss the respondent's amended notice of motion dated 11 December 2013 and the applicants' notice of motion filed 10 December 2013. (8) No order as to costs. [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:	PRACTICE AND PROCEDURE - stay pending appeal - interpretation of effect of interlocutory orders
Legislation Cited:	Civil Procedure Act 2005 Evidence Act 1995
Category:	Interlocutory applications
Parties:	Gu Y Ping (first applicant) James Wang (second applicant) George Farkas (respondent)
Representation:	Counsel: First applicant in person for self and wife Respondent in person
File Number(s):	2013/22988
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2011-05-20 00:00:00 Before: North J File Number(s): 2006/16085; 2006/16064