Li v Wu

Case [2019] ACTCA 14


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Li & Anor v Wu 

Citation:

[2019] ACTCA 14

Hearing Date:

13 February 2019

DecisionDate:

16 May 2019

Before:

Elkaim, Loukas-Karlsson & Rangiah JJ

Decision:

See [108]

Catchwords:

APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Application for leave to appeal against primary judgment – good faith and solid foundation in derivative action

Legislation Cited

Corporations Act 2001 (Cth) s 237

Bankruptcy Act 1966 (Cth) ss 40(1)(g), 52(2)

Limitation Act 1985 (ACT) ss 11(1), 33

Cases Cited:

Aliprandi v Griffith Vintners Pty Ltd (1991) 6 ACSR 250
Carpenter v Pioneer Park Pty Ltd [2008] NSWSC 551; 71 NSWLR 577
Chahwan v Euphoric Pty Ltd t/as Clay & Michel [2008] NSWCA 52;  245 ALR 780
Challis v Hoffmann [2017] NSWSC 870; 121 ACSR 585
Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; 87 FCR 134
Hall v Poolman [2009] NSWCA 64;75 NSWLR 99
Li v Wu [2013] FCA 1067
Li v Wu [2016] FCCA 2836
Maher v Honeysett & Maher Electrical Contractors Pty Ltd [2005] NSWSC 859
Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789;  101 ACSR 233
Re Featherston Resources Pty Ltd; Tetley & Ors v Weston & Ors [2014] NSWSC 1139; 288 FLR 265
Re Karinya Haulage Pty Limited [2017] NSWSC 888
Swansson v RA Pratt Properties Pty Ltd [2002] NSWSC 583;  42 ACSR 313
Varawa v Howard Smith & Co Ltd (1911) 13 CLR 35
Vouris as liquidator of Cadima Express Pty Ltd v Deputy Commissioner of Taxation [1999] NSWSC 1143; 33 ACSR 527
Williams v Spautz  (1992) 174 CLR 509
Wu v Li [2015] FCAFC 109

Wu v Li [2017] FCA 500

Parties:

Yuxin Li (First Applicant)

Hong Chen (Second Applicant)

Tao Wu (Respondent)

Representation:

Counsel

Mr Neal with Mr Flecknoe-Brown (First and Second Applicant)

Mr Karam with Mr Thomas (Respondent)

Solicitors

WMG Legal (First and Second Applicant)

McInnes Wilson Lawyers (Respondent)

File Number:

ACTCA 47 of 2018

Decision under appeal: 

Court/Tribunal:             Supreme Court of the Australian Capital Territory

Before:  McWilliam AsJ

Date of Decision:         9 April 2018

Case Title:  Wu v Li

Citation: [2018] ACTSC 224

THE COURT:

  1. On 17 August 2018, Associate Justice McWilliam granted Mr Wu (Respondent) leave to commence a derivative proceeding in the name of Golden Constructions Pty Ltd (in liq) (Golden Constructions) against Mr Li (First Applicant) and Ms Chen (Second Applicant). This is an application for leave to appeal against that judgment.

  1. In their draft notice of appeal, Mr Li and Ms Chen allege that the primary judge erred:

(a)in failing to be satisfied that Mr Wu lacked good faith in pursuing the proposed derivative proceeding;

(b)in failing to conclude that the proposed derivative proceeding lacked a solid foundation.

  1. For the reasons that follow, we consider that leave to appeal should be granted, and that the…

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Li v Wu [2019] ACTCA 14
Case
[2019] ACTCA 14
Decision Date

CaseChat Overview and Summary

This matter concerned an application for leave to appeal against a primary judgment. The applicant, Li, sought to appeal a decision made in a derivative action brought against the respondent, Wu.

The central legal issue before the Court of Appeal was whether the applicant had demonstrated sufficient grounds to be granted leave to appeal. This involved an assessment of whether the proposed appeal had a good faith basis and a solid foundation, as required for derivative actions.

The Court considered the principles governing applications for leave to appeal, particularly in the context of derivative actions. It was necessary to determine if the applicant had established an arguable case that the primary judge had erred in law or fact, thereby justifying the intervention of the appellate court. The Court's reasoning would have focused on the strength of the grounds of appeal presented and whether they met the threshold for granting leave.

The Court of Appeal made orders in relation to the application for leave to appeal.

Orders

Orders of the court

See [108]

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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