Ling, N. Trading as Australian TEFL Centre v Commonwealth of Australia

S8Y 9~

JUDGMENT No. ..... ,..,,,.J ,.,.,

BETWEEN: POEL LING T r a u
AUSTRALIAN -
Applicant
Respondent

Q m w Davled J.
W 7 July 1994
W: Wncy

ONS FOR JUDGMENT

Thb is an application for the stay of a judgment given by Beaumont J., an appeal from which

wrr dismiaxd by the Full Court of this Court constituted by Gummow, Lee & Hill JJ. on 10 June

1994. 'h aum involved in the judgment are substantial and appear to amount to approximately $10

FEDERAL COURT OF

million in all. The applicant in this motion, Mr Noel Ling, has sought from the High Court time to

enable him to raise funds for the preparation of an application for speclal leave. Mr Ling seelcc a stay

unM b High Court haa bad an opportunity to deal with his p m p e d application for spedd leave.

'Ihc nutulal relied upon by Mr Ling's counsel has k n an affiQavlt sworn by his solicitor,

which has deposed to instrudioas received born Mr h g , and wunsel's expmition of the likely

gro- of appeaL

22 AUG 1994

Having regard to the sums involved in this matter, I would have expected there to be an

afedavit from Mr Ling himself. I think that I would not have granted any stay without knowing a good

deal more about Mr Ling's affiin than I presently know or without his making himself available for

mm-tion as to h& affairs. These affaii are somewhat complex, for Mr Ling has interests in

VUIIta.

With reapect to the proposed appeal, it is sufficient for me to say that I think that there are

insuf8dcnt pmspccu of s u m to grant a stay at this polnt of lime. I need say no more about the

p u n & other than that I would have come to the same conclusion as did the FuU Court on the

matten which have been raised in the proposed appeal. It seems to me that there is no suffident

-n at (his point to preclude the Commonwealth from enforcing the judgment, if there are any

aglets ysiast which it can be enforced, or from, in the first instance, serving a bankruptcy notice and

Bning an act of bankruptcy if the bankruptcy notice be not satisfied.

I muld expect that, if the application for special leave to the High Court has been progressed

with all proper urgency, (his Court, in its bankruptcy jurisdiction, would be unlikely to make an order

for scquatntion until the High Court had given its ruling. But of coune that WIU be a matter for the

judge bdore whom any petition for bankruptcy comes. At the moment, I have a much more Limited

task, and that fs to decide whether there should be an order for a stay which would preclude any

enhrcemcnt proaedinga including the service of a bankruptcy notice. It seems to me that the

p r o s p m of success, as outlined, are not sufGciently great to justify that course.

me motion will therefore be dismissed with costs.

C o u ~ c l for the applicant: R.K Eassie

Solidmra for the applicant: Frank & Woods

C o d for the respondent: F. Kunc

Solicitor for the redpondent: Australian Government Solicitor
Date of hearing 7 July 1994
Date of Judgment: 7 July 1994

In the Federal Court of Australia, the matter of Ling, N. Trading as Australian TEFL Centre v Commonwealth of Australia was heard and determined. The applicant, Mr Noel Ling, sought a stay of the judgment rendered by Beaumont J., which was subsequently dismissed by the Full Court of the Federal Court on 10 June 1994. The financial stakes involved in this case are substantial, with the total amount at approximately $10 million. Mr Ling has applied for a stay to allow him time to raise funds for an application for special leave to appeal to the High Court.

The legal issues before the court were whether the court should grant a stay of the judgment pending the outcome of the proposed application for special leave to the High Court and if the prospects of success in the appeal were sufficient to warrant such a stay. The court considered the affidavits and submissions presented by both parties, particularly the lack of an affidavit from Mr Ling himself and the complexity of his financial affairs. The court also evaluated the likelihood of success in the proposed appeal.

The court, in dismissing the application for a stay, found that there were insufficient prospects of success to justify a stay. The judge noted that the High Court, if an application for special leave was made with due urgency, would likely not make an order for sequestration until the High Court had ruled. The court concluded that the current prospects of success in the proposed appeal were not sufficiently great to warrant a stay of the enforcement of the judgment.

In light of the above, the motion for a stay was dismissed with costs. The court emphasised that the decision to enforce the judgment would ultimately depend on the judge before whom any petition for bankruptcy might be presented.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

which has deposed to instrudioas received born Mr h g , and	wunsel's expmition of the likely
*gro-*	of appeaL

matten which have been raised in the proposed appeal.	It seems to me that there is no suffident
-n	at (his point to preclude the Commonwealth from enforcing the judgment, if there are any

with all proper urgency, (his Court,	in its bankruptcy jurisdiction, would be unlikely to make an order
for scquatntion until the High Court had given its ruling.	But of coune that WIU be a matter for the

enhrcemcnt proaedinga including the service of a bankruptcy notice.	It seems to me that the
p r o s p m of success, as outlined, are not sufGciently great to justify that course.

Solicitor for the redpondent:	Australian Government Solicitor
Date of hearing	7 July 1994
Date of Judgment:	7 July 1994