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Guan v Li

Guan v Li

Case [2022] NSWCA 173 5 September 2022

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Guan v Li [2022] NSWCA 173
Hearing dates: 25 August 2022
Date of orders: 05 September 2022
Decision date: 05 September 2022
Before: Bell CJ at [1];
Ward P at [63];
Meagher JA at [64]
Decision:
(1)   Dismiss the summons for leave to appeal.
(2)   Grant leave to Ms Guan to file a fresh summons for leave to appeal within seven days.
(3)   Order that Ms Guan is to pay:
(a)   the costs thrown away by the making of any fresh application for leave to appeal, and
(b)   the costs of the hearing on 26 August 2022.

Catchwords:
APPEALS – jurisdiction of appellate court – Court of Appeal – cross-vesting – whether Court of Appeal had jurisdiction to determine appeal – whether proposed appeal involved a matter for determination arising under s 90K of the Family Law Act 1975 (Cth) – whether application for leave to appeal was required to be instituted in and could only be determined by Full Court of the Federal Court and Family Court of Australia – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 7
COURTS AND JUDGES – jurisdiction – Court of Appeal – cross-vesting – whether Court of Appeal had jurisdiction to determine appeal – whether proposed appeal involved a matter for determination arising under s 90K of the Family Law Act 1975 (Cth) – whether application for leave to appeal was required to be instituted in and could only be determined by Full Court of the Federal Court and Family Court of Australia – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 7

Legislation Cited:
Bankruptcy Act 1966 (Cth) ss 27(1) and 58(3)(b)
Civil Procedure Act 2005 (NSW) s 56
Family Law Act 1975 (Cth) ss 4, 90C, 90K
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 7
Trade Marks Act 1995 (Cth)
Uniform Civil Procedure Rules 2005 (NSW) r 25.14

Cases Cited:
Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20; [1965] HCA 61
Boensch (as trustee of the Boensch Trust) v Pascoe (2016) 349 ALR 193, [2016] NSWCA 191
Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd (2013) 86 NSWLR 115; [2013] NSWCA 392
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18
CGU Insurance Limited v Blakeley (2016) 259 CLR 339; [2016] HCA 2
Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529; [1955] HCA 44
Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211
Felton v Mulligan (1971) 124 CLR 367; [1972] HCA 39
Grace v Grace (2014) 85 NSWLR 688; [2014] NSWCA 86
Grainger v Bloomfield & Anor (2015) 304 FLR 351; [2015] FamCAFC 221
Gully, State Tax Collector for Mississippi v First National Bank in Meridian (1936) 299 US 109
John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; [2000] HCA 36
Karlsson v Griffith University (2020) 103 NSWLR 131; [2020]…

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 Guan v Li

Details

AGLC: Guan v Li [2022] NSWCA 173
Case: [2022] NSWCA 173
Decision Date: 05 September 2022

CaseChat Overview and Summary

The Court of Appeal considered an appeal brought by Ms Guan against Mr Li. The central dispute concerned the jurisdiction of the Court of Appeal to hear an appeal that potentially involved matters arising under section 90K of the *Family Law Act 1975* (Cth). The question was whether an application for leave to appeal in such circumstances was required to be instituted in, and could only be determined by, the Full Court of the Federal Court and Family Court of Australia, by operation of section 7 of the *Jurisdiction of Courts (Cross-Vesting) Act 1987* (Cth).

The legal issues before the Court of Appeal were whether it possessed the necessary jurisdiction to entertain the appeal, given the potential application of the cross-vesting legislation and the specific provisions of the *Family Law Act*. This involved determining the proper forum for an appeal concerning matters that might fall within the exclusive jurisdiction of the Full Court of the Federal Court and Family Court of Australia under the cross-vesting regime.

The Court of Appeal reasoned that the appeal, as presented, did not fall within the exclusive jurisdiction of the Full Court of the Federal Court and Family Court of Australia. Consequently, the Court of Appeal had jurisdiction to consider the application for leave to appeal. However, the summons for leave to appeal was dismissed. The Court granted Ms Guan leave to file a fresh summons for leave to appeal within seven days, ordering that she pay the costs thrown away by any fresh application and the costs of the hearing on 26 August 2022.

Orders

Orders of the court

(1) Dismiss the summons for leave to appeal.

(2) Grant leave to Ms Guan to file a fresh summons for leave to appeal within seven days.

(3) Order that Ms Guan is to pay:

(a) the costs thrown away by the making of any fresh application for leave to appeal, and

(b) the costs of the hearing on 26 August 2022.

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

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Actions

Citations

Guan v Li [2022] NSWCA 173

Most Recent Citation

Dunne (a pseudonym) v Lloyd (a pseudonym) [2025] WASCA 119

Cases Citing This Decision

Dunne (a pseudonym) v Lloyd (a pseudonym) [2025] WASCA 119
Citation 1 (Para 16)

…ty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392; (2013) 86 NSWLR 115 [5]; Grace v Grace [2014] NSWCA 86; (2014) 85 NSWLR 688 [16]; Guan v Li [2022] NSWCA 173; (2022) 371 FLR 531 [42].…
Riva NSW Pty Limited v Official Trustee in Bankruptcy [2023] NSWCA 235
Citation 2 (Para 14)

…, observing that “[j]ust because a matter may involve or relate to a particular statute, does not mean that it arises under that statute”. [4] 3. [2022] NSWCA 173 at [41]-[50]. 4. [2022] NSWCA 173 at [40].…
HBSY Pty Ltd v Lewis [2023] FCAFC 109
Citation 3 (Para 4)

…Guan v Li [2022] NSWCA 173; 371 FLR 531 involved an application for leave to appeal against a freezing order. As observed in the headnote, “[t]he issue was whether some of the proposed grounds of appeal gave rise to a matter arising under” the Family Law Act 1975 (Cth) ( the Family Law Act ). That issue was canvass…
Guan v Li (No 2) [2022] NSWCA 261
Citation 4 (Para 3)

…me Court Act 1970 (NSW), s 101(2)(e). An earlier application by Ms Guan for leave to appeal was dismissed by the Court on 5 September 2022: Guan v Li [2022] NSWCA 173. The Court held that ground 1 of the then draft notice of appeal was incompetent as it raised a matter for determination in the appeal, if leave was…

See all citing cases →

Cases Cited

Li v Tang [2022] NSWSC 834
Citation 1 (Para 14)

…Mr Tang through his counsel giving the usual undertaking as to damages, Cavanagh J ( the primary judge ) granted the freezing order sought: Li v Guan [2022] NSWSC 834.…
Li v Tang [2021] NSWSC 1011
Citation 2 (Para 3)

…e day prior to entry into the BFA, Schmidt AJ had entered judgment for Mr Weijian Li ( Mr Li ) against Mr Tang in the sum of $1,909,356.39: Li v Tang [2021] NSWSC 1011 ( the Tang proceedings ). Ms Guan was also a defendant in those proceedings but no orders were made against her.…
Karlsson v Griffith University [2020] NSWCA 176
Citation 3 (Para 43)

…In Karlsson v Griffith University (2020) 103 NSWLR 131; [2020] NSWCA 176, Payne and White JJA considered whether a claim was one arising under the Trade Marks Act 1995 (Cth). Their Honours observed that s 7 of the Cross-Vesting Act presupposed that an appeal may contain a number of matters for determination and ope…
Boensch v Pascoe [2019] HCA 49
Citation 4 (Para 41)

…ined; if one of them is a matter arising under a specified federal enactment, the section applies: Boensch (as trustee of the Boensch Trust) v Pascoe (2016) 349 ALR 193; [2016] NSWCA 191 at [18] per Leeming JA ( Boensch ). The analysis necessarily turns upon the nature of the appellant’s claims in the appeal: Boensch…
Boensch v Pascoe [2016] NSWCA 191
Citation 5 (Para 41)

…is a matter arising under a specified federal enactment, the section applies: Boensch (as trustee of the Boensch Trust) v Pascoe (2016) 349 ALR 193; [2016] NSWCA 191 at [18] per Leeming JA ( Boensch ). The analysis necessarily turns upon the nature of the appellant’s claims in the appeal: Boensch at [20].…
Grainger v Bloomfield & Anor [2016] HCATrans 61
Citation 6 (Para 19)

…ide the Settlement Deed could be obtained from the FCFCOA and noted that the issue was considered by the Family Court in Grainger v Bloomfield & Anor (2015) 304 FLR 351; [2015] FamCAFC 221 at [69]: PJ [56]–[57]. He continued by observing that (PJ at [59]–[63]):…
CGU Insurance Ltd v Blakeley [2016] HCA 2
Citation 7 (Para 45)

…In CGU Insurance Limited v Blakeley (2016) 259 CLR 339; [2016] HCA 2 at [29], the plurality elaborated on this observation, stating that:…
Grainger v Bloomfield & Anor [2015] FamCAFC 221
Citation 8 (Para 19)

…eed could be obtained from the FCFCOA and noted that the issue was considered by the Family Court in Grainger v Bloomfield & Anor (2015) 304 FLR 351; [2015] FamCAFC 221 at [69]: PJ [56]–[57]. He continued by observing that (PJ at [59]–[63]):…
PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36
Citation 9 (Para 57)

…which may lead to a judgment must be taken into account: see UCPR r 25.14(3) and cf PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1; [2015] HCA 36.…
Eberstaller v Poulos [2014] NSWCA 211
Citation 10 (Para 29)

…were granted. This was consistent with the approach that has been taken in other cases: see, for example, Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 ( Eberstaller ).…
Grace v Grace [2014] NSWCA 86
Citation 11 (Para 34)

…olved in the institution of the appeal). This fine distinction accords with the approach taken by the Court in Grace v Grace (2014) 85 NSWLR 688; [2014] NSWCA 86 ( Grace ) at [25] and in Eberstaller at [28], [32].…
Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392
Citation 12 (Para 32)

…peal, citing in support of this contention, this Court’s decision in Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd (2013) 86 NSWLR 115; [2013] NSWCA 392 at [49] ( Bramco ). That decision is undoubtedly authority for the proposition for which it was cited.…
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36
Citation 13 (Para 47)

…d by the double-actionability rule associated with Phillips v Eyre (1870) LR 6 QB 1; now see John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; [2000] HCA 36.) Windeyer J said (at 45):…
Cardile v LED Builders Pty Ltd [1999] HCA 18
Citation 14 (Para 56)

…of his statutory right under UCPR r 25.14(5) and common law rights consistent with the decision in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 to restrain an abuse of process.…
The Commonwealth v Morison [1972] HCA 39
Citation 15 (Para 46)

…gh Court in Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 45; [1965] HCA 61 ( Anderson ) and Felton v Mulligan (1971) 124 CLR 367; [1972] HCA 39 ( Felton ) which emphasised the distinction between a matter arising under an enactment and a matter involving its interpretation.…
Felton v Mulligan [1971] HCA 39
Citation 16 (Para 46)

…decisions of the High Court in Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 45; [1965] HCA 61 ( Anderson ) and Felton v Mulligan (1971) 124 CLR 367; [1972] HCA 39 ( Felton ) which emphasised the distinction between a matter arising under an enactment and a matter involving its interpretation.…
Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61
Citation 17 (Para 46)

…articular emphasis was placed by Mr Condon on the decisions of the High Court in Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 45; [1965] HCA 61 ( Anderson ) and Felton v Mulligan (1971) 124 CLR 367; [1972] HCA 39 ( Felton ) which emphasised the distinction between a matter arising under an en…
Collins v Charles Marshall Pty Ltd [1955] HCA 44
Citation 18 (Para 50)

…made by the Parliament in a proceeding which does not arise under that law”, citing Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 537; [1955] HCA 44. His Honour had also observed (at 382) that:…
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50
Citation 19 (Para 44)

…In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; [1945] HCA 50, Latham CJ famously observed of the words “arising under” in s 76(ii) of the Constitution that:…
John Pfeiffer Pty Limited v Rogerson [2000] HCA 3621
Citation 20 (Para 47)

…the purposes of conflict of laws in Australia was governed by the double-actionability rule associated with Phillips v Eyre (1870) LR 6 QB 1; now see John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; [2000] HCA 36.) Windeyer J said (at 45):…
6 QB 1 6 QB 1
Citation 21 (Para 47)

…e for torts for the purposes of conflict of laws in Australia was governed by the double-actionability rule associated with Phillips v Eyre (1870) LR 6 QB 1; now see John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; [2000] HCA 36.) Windeyer J said (at 45):…
State Tax Collector for Mississippi v First National Bank in Meridian (1936) 299 US 109
Citation 22 (Para 49)

…observations in Anderson and also cited the observations of Cardozo J in Gully, State Tax Collector for Mississippi v First National Bank in Meridian (1936) 299 US 109 that “[n]ot every question of federal law emerging in a suit is proof that a federal law is the basis of the suit” and that it is not so if “[t]he mo…
Phillips v Eyre 358 US 354
Citation 23

…CLR 503; [2000] HCA 36 Karlsson v Griffith University (2020) 103 NSWLR 131; [2020] NSWCA 176 Li v Tang [2021] NSWSC 1011 Phillips v Eyre (1870) LR 6 QB 1 PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1; [2015] HCA 36 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR…

Legislation Cited

Family Law Act 1975 (Cth) 4, 90C, 90K, 90K(3)
5 mentions (from Para 2)
Bankruptcy Act 1966 (Cth) 27(1), 58(3)(b)
3 mentions (from Para 9)
Civil Procedure Act 2005 (NSW) 56
2 mentions (from Para 35)
Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS) 7
2 mentions (from Para 27)
Uniform Civil Procedure Rules 2005 (NSW) 25.14, 25.14(5)(a)(i)
2 mentions (from Para 13)
Real Property Act 1900 (NSW)
1 mention
Trade Marks Act 1995 (Cth)
1 mention (from Para 43)

Medium Neutral Citation:	Guan v Li [2022] NSWCA 173
Hearing dates:	25 August 2022
Date of orders:	05 September 2022
Decision date:	05 September 2022
Before:	Bell CJ at [1]; Ward P at [63]; Meagher JA at [64]
Decision:	(1) Dismiss the summons for leave to appeal. (2) Grant leave to Ms Guan to file a fresh summons for leave to appeal within seven days. (3) Order that Ms Guan is to pay: (a) the costs thrown away by the making of any fresh application for leave to appeal, and (b) the costs of the hearing on 26 August 2022.
Catchwords:	APPEALS – jurisdiction of appellate court – Court of Appeal – cross-vesting – whether Court of Appeal had jurisdiction to determine appeal – whether proposed appeal involved a matter for determination arising under s 90K of the Family Law Act 1975 (Cth) – whether application for leave to appeal was required to be instituted in and could only be determined by Full Court of the Federal Court and Family Court of Australia – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 7 COURTS AND JUDGES – jurisdiction – Court of Appeal – cross-vesting – whether Court of Appeal had jurisdiction to determine appeal – whether proposed appeal involved a matter for determination arising under s 90K of the Family Law Act 1975 (Cth) – whether application for leave to appeal was required to be instituted in and could only be determined by Full Court of the Federal Court and Family Court of Australia – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 7
Legislation Cited:	Bankruptcy Act 1966 (Cth) ss 27(1) and 58(3)(b) Civil Procedure Act 2005 (NSW) s 56 Family Law Act 1975 (Cth) ss 4, 90C, 90K Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 7 Trade Marks Act 1995 (Cth) Uniform Civil Procedure Rules 2005 (NSW) r 25.14
Cases Cited:	Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20; [1965] HCA 61 Boensch (as trustee of the Boensch Trust) v Pascoe (2016) 349 ALR 193, [2016] NSWCA 191 Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd (2013) 86 NSWLR 115; [2013] NSWCA 392 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 CGU Insurance Limited v Blakeley (2016) 259 CLR 339; [2016] HCA 2 Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529; [1955] HCA 44 Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 Felton v Mulligan (1971) 124 CLR 367; [1972] HCA 39 Grace v Grace (2014) 85 NSWLR 688; [2014] NSWCA 86 Grainger v Bloomfield & Anor (2015) 304 FLR 351; [2015] FamCAFC 221 Gully, State Tax Collector for Mississippi v First National Bank in Meridian (1936) 299 US 109 John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; [2000] HCA 36 Karlsson v Griffith University (2020) 103 NSWLR 131; [2020]…