Guan v Lui - [2020] NSWCA 251

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Guan v Lui [2020] NSWCA 251
Hearing dates: 9 October 2020
Date of orders: 9 October 2020
Decision date: 09 October 2020
Before: Macfarlan JA
Decision:
(1) Pursuant to UCPR r 51.50(1), order the appellant to provide security for the costs of the respondent to the appeal by paying into Court on or before Thursday 15 October 2020 the sum of $20,000.
(2) Grant leave to the respondent to apply on Monday 19 October 2020, by Notice of Motion filed and served on Friday 16 October 2020, for an order pursuant to UCPR r 51.50(2A) for the dismissal of the appeal on the basis of non-compliance with Order (1).
(3) Order the appellant to pay the respondent’s costs of his Notice of Motion for security for costs.

Catchwords:
APPEAL – security for costs – UCPR r 51.50 – special circumstances established – appellant has no assets in Australia to enable satisfaction of judgment but is able to request funds as needed from husband in China

Legislation Cited:
Property, Stock and Business Agents Act 2002 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 51.50

Cases Cited:
Mr D v Ms P [2020] NSWCA 174

Category: Procedural and other rulings
Parties: Xiuyan Guan (Appellant)
Kevin Yung Lui (Respondent)
Representation:
Counsel:
Dr A J Greinke (Appellant)
Mr P Afshar (Respondent)
Solicitors:
Auyeung Hencent & Day Lawyers (Appellant)
Dunstan Legal (Respondent)

File Number(s): 2019/232687
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 803; [2020] NSWSC 398

Date of Decision:

28 June 2019

Before:

Walton J

File Number(s):

2015/160052; 2015/223106

Judgment

MACFARLAN JA: Pursuant to a Notice of Motion filed on 1 October 2020 the respondent to this appeal (Mr Kevin Lui) seeks an order that the appellant (Ms Xiuyan Guan) provide security for Mr Lui’s costs of the appeal. The appeal is fixed for a one day hearing on 22 October 2020.
In the proceedings in the Common Law Division which gave rise to the appeal, Mr Lui sought orders against Ms Guan in relation to an agreement between them and another party dated 18 January 2015. Ms Guan defended the proceedings, inter alia, on the basis that Mr Lui was unable to recover amounts claimed because he had acted as an unlicensed real estate agent (see s 8 of the then-named Property, Stock and Business Agents Act 2002 (NSW)). By judgments of 28 June 2019 and 14 April 2020, Walton J found in Mr Lui’s favour, awarding him $780,000 in damages, $215,638.94 in pre-judgment interest, and costs ([2019] NSWSC 803; [2020] NSWSC 398).
Ms Guan’s Notice of Appeal, as filed on 26 May 2020 and amended on 1 September 2020, challenges his Honour’s findings concerning s 8. The appeal is likely to turn upon the proper characterisation of the arrangements and conduct found by his Honour.
On 7 August 2020 Mr Lui served on Ms Guan an order for her…

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 Lui

Details

AGLC: Guan v Lui [2020] NSWCA 251
Case: [2020] NSWCA 251
Decision Date: 09 October 2020

CaseChat Overview and Summary

In *Guan v Lui*, the appellant sought to appeal a decision, and the respondent applied for security for costs. The appeal concerned whether special circumstances existed to justify an order for security for costs under rule 51.50 of the Uniform Civil Procedure Rules (UCPR). The appellant, who had no assets in Australia, was able to request funds as needed from her husband in China.

The primary legal issue before the Court of Appeal was whether the appellant's financial position, specifically her lack of assets in Australia coupled with her ability to access funds from her husband in China, constituted "special circumstances" for the purposes of UCPR r 51.50. This rule allows a court to order a party to provide security for the costs of an appeal.

Macfarlan JA found that the appellant's lack of assets in Australia, which would otherwise enable the respondent to recover costs if successful, combined with her ability to obtain funds from her husband in China, did establish special circumstances. The court reasoned that while the appellant could access funds, the absence of readily available assets within the jurisdiction presented a risk to the respondent's ability to recover costs. Consequently, the court ordered the appellant to provide security for the respondent's costs of the appeal in the sum of $20,000, payable by a specified date. The court also granted the respondent leave to apply for dismissal of the appeal if this order was not complied with and ordered the appellant to pay the respondent's costs of the security for costs application.

Orders

Orders of the court

(1) Pursuant to UCPR r 51.50(1), order the appellant to provide security for the costs of the respondent to the appeal by paying into Court on or before Thursday 15 October 2020 the sum of $20,000.

(2) Grant leave to the respondent to apply on Monday 19 October 2020, by Notice of Motion filed and served on Friday 16 October 2020, for an order pursuant to UCPR r 51.50(2A) for the dismissal of the appeal on the basis of non-compliance with Order (1).

(3) Order the appellant to pay the respondent’s costs of his Notice of Motion for security for costs.

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:	Guan v Lui [2020] NSWCA 251
Hearing dates:	9 October 2020
Date of orders:	9 October 2020
Decision date:	09 October 2020
Before:	Macfarlan JA
Decision:	(1) Pursuant to UCPR r 51.50(1), order the appellant to provide security for the costs of the respondent to the appeal by paying into Court on or before Thursday 15 October 2020 the sum of $20,000. (2) Grant leave to the respondent to apply on Monday 19 October 2020, by Notice of Motion filed and served on Friday 16 October 2020, for an order pursuant to UCPR r 51.50(2A) for the dismissal of the appeal on the basis of non-compliance with Order (1). (3) Order the appellant to pay the respondent’s costs of his Notice of Motion for security for costs.
Catchwords:	APPEAL – security for costs – UCPR r 51.50 – special circumstances established – appellant has no assets in Australia to enable satisfaction of judgment but is able to request funds as needed from husband in China
Legislation Cited:	Property, Stock and Business Agents Act 2002 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 51.50
Cases Cited:	Mr D v Ms P [2020] NSWCA 174
Category:	Procedural and other rulings
Parties:	Xiuyan Guan (Appellant) Kevin Yung Lui (Respondent)
Representation:	Counsel: Dr A J Greinke (Appellant) Mr P Afshar (Respondent) Solicitors: Auyeung Hencent & Day Lawyers (Appellant) Dunstan Legal (Respondent)
File Number(s):	2019/232687
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2019] NSWSC 803; [2020] NSWSC 398 Date of Decision: 28 June 2019 Before: Walton J File Number(s): 2015/160052; 2015/223106