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Ip v Chiang

Ip v Chiang

Case [2019] NSWSC 1549 8 November 2019

Standing

Discovery & Disclosure

Contempt of Court

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ip v Chiang [2019] NSWSC 1549
Hearing dates: 6 September; 1 October; 3 October 2019
Date of orders: 08 November 2019
Decision date: 08 November 2019
Jurisdiction: Equity - Applications List
Before: Parker J
Decision:
See [136].

Catchwords:
PRACTICE AND PROCEDURE — Application to vary
asset preservation orders and orders restraining party dealing with proceeds of sale of property – variation sought to permit sale of property and use proceeds to fund legal representation in proceedings – whether party in breach by dealing with alleged traceable proceeds of property – “rule” against hearing a party where prima facie in contempt – whether “rule” discretionary – Civil Procedure Act 2005 (NSW), ss 55-64.

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56-64

Cases Cited:
Athens & Anor v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46
Burnett v Burnett (1903) 3 SR (NSW) 513; (1903) 20 WN (NSW) 168
Chamberlain Group Pty Ltd v Kids for Life Academy Pty Ltd (2015) 18 BPR 35,591; [2015] NSWCA 241
Chuck v Cremer (1846) 1 Coop t. Cott 205; 1 Coop t. Cott 247; 1 Coop t. Cott 338; (1846) 47 ER 820; 47 ER 841; 47 ER 884; (1846) 41 ER 884; 41 ER 1028
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Gap Constructions Pty Ltd v Vigar Pty Ltd [2011] NSWSC 1205
Gordon v Gordon [1904] Probate P 163
Hadkinson v Hadkinson [1952] P 285; 2 All ER 567; WN 405
Harrison Partners Constructions Pty Ltd v Jevena Pty Ltd [2006] NSWSC 317
Hwang v Lawrie [2014] 1 QD R 562; [2013] QCA 204
Leaway v Newcastle City Council (No 2) [2005] NSWSC 826
Li v Hanson Property Developments Pty Ltd [2016] NSWSC 1870
Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365
Plumbe v Plumbe, (1839) 3 Yo & C 622; 160 ER 850
Ricketts v Mornington (1834) 7 Sim 200; 58 ER 813
Stojic v Stojic [2018] NSWSC 723
Stokes v McCourt [2013] NSWSC 1014
Wilson v Bates (1838) 3 Myl & Cr 197; 40 ER 900
X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 AC 1

Texts Cited:
Charles Purton Cooper, Reports of cases in Chancery decided by Lord Cottenham, commencing 7th July 1846: with interspersed miscellaneous cases, dicta and notes (London : V&R Stevens and GS Norton, 1846-1848) at 205-223; 247-249; 338-345
Edmund R Daniell, Daniell’s Practice of the High Court of Chancery: Second Edition (London : V&R Stevens and GS Norton, 1845)
Category: Procedural rulings
Parties: Xiao Feng Ip (Plaintiff)
Tsui Peng Chiang (First Defendant)
Representation:
Counsel:
KJ Young (Plaintiff)
E Cohen (First Defendant)
Solicitors:
Philip Gengos & Co (Plaintiff)

File Number(s): 2018/312250
Publication restriction: Nil

Judgment

Before the Court is an application by the first defendant, Lisa…

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 Ip v Chiang

Details

AGLC: Ip v Chiang [2019] NSWSC 1549
Case: [2019] NSWSC 1549
Decision Date: 08 November 2019

CaseChat Overview and Summary

In Ip v Chiang, the applicant sought to vary asset preservation orders and orders restraining dealing with the proceeds of sale of property. The applicant wished to sell the property and use the proceeds to fund legal representation in the proceedings. The dispute centred on whether the applicant was in breach by dealing with alleged traceable proceeds of the property and whether there was a rule against hearing a party who was prima facie in contempt. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether the applicant was in breach of the asset preservation orders and whether the court should hear the application while the applicant was in contempt. The court was also required to determine whether the "rule" against hearing a party in contempt was discretionary under the Civil Procedure Act 2005 (NSW).

The court held that the applicant was not in breach of the asset preservation orders as the proceeds of sale were not traceable to the property. The court further found that the "rule" against hearing a party who was prima facie in contempt was not absolute and could be exercised at the discretion of the court. In exercising its discretion, the court took into account the fact that the applicant had acted promptly to apply for variation of the orders and the prospects of success of the application. The court granted the application to vary the orders, permitting the applicant to sell the property and use the proceeds to fund legal representation.

The court ordered that the asset preservation orders and orders restraining dealing with the proceeds of sale of property be varied to allow the applicant to sell the property and use the proceeds to fund legal representation in the proceedings. The court also ordered that the applicant take all necessary steps to ensure that any proceeds of sale were not dealt with except as permitted by the varied orders.

Orders