Huang v Drumm - [2019] NSWCA 77

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Huang v Drumm [2019] NSWCA 77
Hearing dates: 11 and 12 April 2019
Date of orders: 17 April 2019
Decision date: 17 April 2019
Before: Macfarlan JA
Payne JA
Decision:
(1) Grant Ms Huang leave to appeal against the judgment of Pembroke J of 12 October 2018, limited to the following grounds:
(a) whether there was any proper foundation for his Honour to make orders under the inherent jurisdiction and s 67 of the Civil Procedure Act staying the proceedings before him on the ground that they were an abuse of process; and
(b) whether, if his Honour’s abuse of process orders were well founded, there was any proper basis upon which he could have granted a stay under s 17 of the Trans-Tasman Proceedings Act in relation to proceedings which were ex hypothesei an abuse of process.
(2) Direct Ms Huang to file and serve within 14 days a notice of appeal limited to the precise issues identified in Order 1 above.
(3) Direct that Ms Huang’s appeal be listed at 9.30am on Monday 6 May 2019 before Payne JA for directions concerning the conduct of the appeal. The parties should expect that a date for hearing the appeal will be fixed at that directions hearing and orders made in preparation for that hearing.
(4) Order that the costs of the application for leave to appeal be costs in the appeal.

Catchwords: APPEAL – application for leave to appeal proceedings – stayed pursuant to inherent jurisdiction and s 67 of the Civil Procedure Act 2005 (NSW) as an abuse of process – whether any proper basis for the finding of abuse of process – whether proceedings properly stayed pursuant to s 17 of the Trans-Tasman Proceedings Act 2010 (Cth) – leave to appeal granted
Legislation Cited: Civil Procedure Act 2005 (NSW), s 67
Trans-Tasman Proceedings Act 2010 (Cth), s 17
Category: Principal judgment
Parties: Biru Huang (Applicant)
Bernard Joseph Drumm (Respondent)
Representation: Counsel:
Biru Huang (Applicant – Self represented)
Dean Elliott (Respondent)

File Number(s): 2018/347621
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Date of Decision:

12 October 2018

Before:

Pembroke J

File Number(s):

2016/96823

Judgment

THE COURT: On 12 October 2018 Pembroke J, sitting in the Equity Division of the Court, made the following orders in Supreme Court proceedings 2016/96823 (“the 2016 Proceedings”) between the present applicant for leave, Ms Biru Huang, and Mr Bernard Drumm ([2018] NSWSC 1556 at [68]):

“(a) I order that this proceeding be stayed pursuant to the inherent jurisdiction of the Court;
(b) I order that this proceeding be stayed pursuant to Section 67 of the Civil Procedure Act 2005 (NSW);
(c) I order that this proceeding be stayed pursuant to Section 17 of the Trans-Tasman Proceedings Act 2010 (Cth).”

His Honour’s reasons for judgment indicate that he made Orders (a) and (b) because he concluded that the 2016 Proceedings (as well as other proceedings between the parties) were…

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 Huang v Drumm

Details

AGLC: Huang v Drumm [2019] NSWCA 77
Case: [2019] NSWCA 77
Decision Date: 17 April 2019

CaseChat Overview and Summary

This matter concerned an application for leave to appeal by Ms Huang against a judgment of Pembroke J delivered on 12 October 2018. The primary dispute revolved around orders made by his Honour staying proceedings before him on the grounds of abuse of process, purportedly under the court's inherent jurisdiction and section 67 of the *Civil Procedure Act 2005* (NSW), and also under section 17 of the *Trans-Tasman Proceedings Act 2010* (Cth).

The legal issues before the Court of Appeal were whether there was a proper foundation for Pembroke J's finding that the proceedings constituted an abuse of process, and consequently, whether there was a proper basis to grant a stay under section 17 of the *Trans-Tasman Proceedings Act* in relation to proceedings already deemed an abuse of process.

The Court of Appeal, constituted by Macfarlan and Payne JJA, granted Ms Huang leave to appeal. Their Honours determined that the appeal should be limited to the specific grounds concerning the propriety of the abuse of process finding and the subsequent stay under the *Trans-Tasman Proceedings Act*. Directions were made for the filing of a notice of appeal and a hearing date was to be fixed at a subsequent directions hearing. The costs of the application for leave to appeal were made costs in the appeal.

Orders

Orders of the court

(1) Grant Ms Huang leave to appeal against the judgment of Pembroke J of 12 October 2018, limited to the following grounds:

(a) whether there was any proper foundation for his Honour to make orders under the inherent jurisdiction and s 67 of the Civil Procedure Act staying the proceedings before him on the ground that they were an abuse of process; and

(b) whether, if his Honour’s abuse of process orders were well founded, there was any proper basis upon which he could have granted a stay under s 17 of the Trans-Tasman Proceedings Act in relation to proceedings which were ex hypothesei an abuse of process.

(2) Direct Ms Huang to file and serve within 14 days a notice of appeal limited to the precise issues identified in Order 1 above.

(3) Direct that Ms Huang’s appeal be listed at 9.30am on Monday 6 May 2019 before Payne JA for directions concerning the conduct of the appeal. The parties should expect that a date for hearing the appeal will be fixed at that directions hearing and orders made in preparation for that hearing.

(4) Order that the costs of the application for leave to appeal be costs in the appeal.

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:	Huang v Drumm [2019] NSWCA 77
Hearing dates:	11 and 12 April 2019
Date of orders:	17 April 2019
Decision date:	17 April 2019
Before:	Macfarlan JA Payne JA
Decision:	(1) Grant Ms Huang leave to appeal against the judgment of Pembroke J of 12 October 2018, limited to the following grounds: (a) whether there was any proper foundation for his Honour to make orders under the inherent jurisdiction and s 67 of the Civil Procedure Act staying the proceedings before him on the ground that they were an abuse of process; and (b) whether, if his Honour’s abuse of process orders were well founded, there was any proper basis upon which he could have granted a stay under s 17 of the Trans-Tasman Proceedings Act in relation to proceedings which were ex hypothesei an abuse of process. (2) Direct Ms Huang to file and serve within 14 days a notice of appeal limited to the precise issues identified in Order 1 above. (3) Direct that Ms Huang’s appeal be listed at 9.30am on Monday 6 May 2019 before Payne JA for directions concerning the conduct of the appeal. The parties should expect that a date for hearing the appeal will be fixed at that directions hearing and orders made in preparation for that hearing. (4) Order that the costs of the application for leave to appeal be costs in the appeal.
Catchwords:	APPEAL – application for leave to appeal proceedings – stayed pursuant to inherent jurisdiction and s 67 of the Civil Procedure Act 2005 (NSW) as an abuse of process – whether any proper basis for the finding of abuse of process – whether proceedings properly stayed pursuant to s 17 of the Trans-Tasman Proceedings Act 2010 (Cth) – leave to appeal granted
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 67 Trans-Tasman Proceedings Act 2010 (Cth), s 17
Category:	Principal judgment
Parties:	Biru Huang (Applicant) Bernard Joseph Drumm (Respondent)
Representation:	Counsel: Biru Huang (Applicant – Self represented) Dean Elliott (Respondent)
File Number(s):	2018/347621
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Date of Decision: 12 October 2018 Before: Pembroke J File Number(s): 2016/96823