Mansour v Jiang - [2019] FCCA 1813

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANSOUR v JIANG & ANOR

[2019] FCCA 1813

Catchwords:

PRACTICE AND PROCEDURE – Application for summary dismissal of application in a case brought by judgment debtors seeking orders to set aside judgment made by consent – whether the judgment debtors do not have reasonable prospects of setting aside judgment on the ground of fraud – whether the judgment debtors do not have reasonable prospects of amending judgment under the slip rule – application for summary dismissal granted.

Legislation:
Federal Circuit Court of Australia Act 1999 (Cth), ss.8(3), 17A(2), 43(2)(b)
Federal Circuit Court Rules 2001 (Cth), rr.1.05(2), 16.05(2)(b)\
Federal Court Rules 2011 (Cth), r.39.05(h)

Cases cited:
Clone Pty Ltd v Players Pty Ltd (In Liq) [2018] HCA 12
Flint v Richard Busuttil & Co Pty Limited [2013] FCAFC 13
Harris v Caladine [1991] HCA 9
Heywood v Sharpe [2014] FCCA 2999
Jonesco v Beard [1930] AC 298

L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (No 2) (1982) 151 CLR 590

Applicant:

JOSEPH MANSOUR

First Respondent:

YONG JIANG

Second Respondent:

SUI TONG NIU

File Number:

SYG 2249 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

28 May 2019

Date of Last Submission:

24 June 2019

Delivered at:

Sydney

Delivered on:

28 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr J Raftery

Solicitors for the Applicant:

Mars Legal

Solicitors for the Respondents:

Mr W Kozlowski of Lou Baker and Associates

ORDERS

(1) Pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) the application in a case filed by the respondents on 16 May 2019 is dismissed.
(2) The respondents pay the applicant’s costs of the application in a case.

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT Sydney

SYG 2249 of 2016

Joseph Mansour

Applicant

And

Yong Jiang

First Respondent

Sui Tong Niu

Second Respondent

REASONS FOR JUDGMENT

Introduction

1.      On 21 November 2017 I made an order by consent that there be judgment against the respondents in the sum of $258,461.86 inclusive of interest and costs (Order).
2.      On 16 May 2019 the respondents filed an application in a case for an order that the Order be set aside. The application was made after the applicant, Mr Mansour, served on the respondents a bankruptcy notice demanding the payment of the amount referred to in the Order, and after the respondents had filed a separate application in the Court for an order to set aside the bankruptcy notice.
3.      The application in a case came before me on 28 May 2019. Mr Mansour appeared by counsel, and the respondents appeared by their solicitor, Mr Kozlowski. Counsel for Mr Mansour submitted I should summarily dismiss the application in a case. After some discussion I made orders permitting the parties to file additional affidavits, and directed them to file written submissions. I also ordered, with the consent of the parties’ representatives, that as from 24 June 2019 I would be at liberty to give judgment on the application…

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 Mansour v Jiang

Details

AGLC: Mansour v Jiang [2019] FCCA 1813
Case: [2019] FCCA 1813
Decision Date: 28 June 2019

CaseChat Overview and Summary

In *Mansour v Jiang*, the applicant sought the summary dismissal of an application filed by the judgment debtors. The judgment debtors had sought to set aside a judgment previously made by consent. The core of the dispute revolved around whether the judgment debtors had reasonable prospects of successfully setting aside the consent judgment, either on the grounds of fraud or by amending it under the slip rule.

The court was required to determine two primary legal issues. Firstly, whether the judgment debtors had demonstrated reasonable prospects of establishing fraud sufficient to warrant setting aside the consent judgment. Secondly, the court had to consider whether there were reasonable prospects of amending the judgment under the slip rule, which typically applies to correct clerical errors or omissions.

Judge Manousaridis found that the judgment debtors had not presented a case with reasonable prospects of success on either ground. The evidence of fraud was deemed insufficient to meet the high threshold required for setting aside a consent judgment. Furthermore, the court determined that the alleged errors did not fall within the scope of the slip rule, as they were not mere clerical mistakes but rather attempts to re-litigate substantive issues. Consequently, the application to set aside the judgment was dismissed.

The court ordered that the application filed by the respondents (judgment debtors) on 16 May 2019 be dismissed pursuant to s.17A(2) of the *Federal Circuit Court of Australia Act 1999* (Cth). The respondents were also ordered to pay the applicant’s costs of the application.

Orders

Orders of the court

(1) Pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) the application in a case filed by the respondents on 16 May 2019 is dismissed.

(2) The respondents pay the applicant’s costs of the application in a case.

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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