Han v Jiang (No 2) - [2025] NSWCA 217

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Han v Jiang (No 2) [2025] NSWCA 217
Hearing dates: 22 September 2025
Date of orders: 23 September 2025
Decision date: 23 September 2025
Before: Free JA
Decision:
Notice of motion dismissed with costs.

Catchwords:
CIVIL PROCEDURE—Application for further extension of stay to prevent funds paid into court being released to successful party in satisfaction of judgment debt—Short extension granted on previous motion to allow unsuccessful party to consider seeking review—No application for review—No justification for further extension—Prejudice asserted on behalf of third party which is aware of proceedings--Further extension an arbitrary and unjustifiable frustration of successful party’s right to take benefit of orders below—Motion dismissed

Legislation Cited:
Sale of Land Act 1962 (Vic), s 27
Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)(b)

Cases Cited:
Han v Jiang [2025] NSWCA 202
Jiang v Han (No 4) [2025] NSWSC 685

Category: Procedural rulings
Parties: Kairan Han (First applicant)
Fortune New City (Yarraville) Development Pty Ltd (Second applicant)
Zhao Qing Jiang (Respondent)
Representation:
Counsel:
P Wu (Sol) (Applicants)
N J Kidd SC / R P Harvey (Respondent)
Solicitors:
Hiways Lawyers (Applicants)
Sunfield Chambers Solicitors & Associates (Respondent)

File Number(s): 2025/327473
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2025] NSWSC 948

Date of Decision:

21 August 2025

Before:

Schmidt AJ

File Number(s):

2021/273456

JUDGMENT

FREE JA: The applicants, Kairan Han (Mr Han) and Fortune New City (Yarraville) Development Pty Ltd (Fortune New City), are presently subject to an order, made by the primary judge Schmidt AJ on 21 August 2025, requiring that funds which have been paid into court be released to the respondent (Mr Jiang). That order arose out of proceedings before her Honour in respect of a joint venture agreement (2016 Agreement) between the parties relating to land at Yarraville in Victoria (Yarraville Property). At the commencement of those proceedings, a freezing order was made against Mr Han and Fortune New City. That freezing order ceased to have effect when the sum of $5,685,262 was paid into Court by Mr Han and Fortune New City on 29 September 2021. On 5 October 2021 consent orders were made enabling the sum to be paid into an interest-bearing controlled money account with the Commonwealth Bank of Australia (CBA) in the name of the parties’ solicitors. By the time of the hearing of the present notice of motion on 22 September 2025, the funds (which had grown over time with the accumulation of interest) remained in that account.
In the substantive proceedings below, Mr Han and Fortune New City sought to agitate certain claims of misleading and deceptive conduct on the part of Mr Jiang, as a defence to the proceedings brought by Mr Jiang and by way of cross-claim. Schmidt AJ struck out the cross-claim and the relevant parts of the defence as a result of repeated failure to comply…

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 Han v Jiang (No 2)

Details

AGLC: Han v Jiang (No 2) [2025] NSWCA 217
Case: [2025] NSWCA 217
Decision Date: 23 September 2025

CaseChat Overview and Summary

In *Han v Jiang (No 2)*, the applicant sought a further extension of a stay on the release of funds paid into court. These funds were held pending the outcome of an appeal, and the respondent, the successful party, sought their release in satisfaction of a judgment debt. A short extension had previously been granted to allow the applicant to consider seeking a review of the primary decision, but no such review had been initiated.

The central legal issue before the court was whether a further extension of the stay should be granted, despite the applicant's failure to pursue a review and the prejudice asserted by a third party aware of the proceedings. The court was required to consider the balance between the applicant's desire to delay the release of funds and the respondent's right to benefit from the judgment obtained.

Justice Free JA reasoned that granting a further extension would constitute an arbitrary and unjustifiable frustration of the respondent's right to enforce the judgment. The court noted that no valid grounds had been presented to justify prolonging the stay, particularly in light of the applicant's inaction regarding a potential review. The asserted prejudice to a third party was not considered a sufficient reason to override the respondent's established rights.

Consequently, the notice of motion seeking a further extension of the stay was dismissed with costs.

Orders

Orders of the court

Notice of motion dismissed with 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:	Han v Jiang (No 2) [2025] NSWCA 217
Hearing dates:	22 September 2025
Date of orders:	23 September 2025
Decision date:	23 September 2025
Before:	Free JA
Decision:	Notice of motion dismissed with costs.
Catchwords:	CIVIL PROCEDURE—Application for further extension of stay to prevent funds paid into court being released to successful party in satisfaction of judgment debt—Short extension granted on previous motion to allow unsuccessful party to consider seeking review—No application for review—No justification for further extension—Prejudice asserted on behalf of third party which is aware of proceedings--Further extension an arbitrary and unjustifiable frustration of successful party’s right to take benefit of orders below—Motion dismissed
Legislation Cited:	Sale of Land Act 1962 (Vic), s 27 Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)(b)
Cases Cited:	Han v Jiang [2025] NSWCA 202 Jiang v Han (No 4) [2025] NSWSC 685
Category:	Procedural rulings
Parties:	Kairan Han (First applicant) Fortune New City (Yarraville) Development Pty Ltd (Second applicant) Zhao Qing Jiang (Respondent)
Representation:	Counsel: P Wu (Sol) (Applicants) N J Kidd SC / R P Harvey (Respondent) Solicitors: Hiways Lawyers (Applicants) Sunfield Chambers Solicitors & Associates (Respondent)
File Number(s):	2025/327473
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2025] NSWSC 948 Date of Decision: 21 August 2025 Before: Schmidt AJ File Number(s): 2021/273456