1. Application for leave for Mr Guo to be cross-examined refused.
2. First and second respondents to pay the applicants' costs of this application.
3. Relist the proceedings for further directions on 4 February 2014 at 9.30am.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
PRACTICE AND PROCEDURE - interlocutory applications - application for leave to cross-examine Chinese national in support of claimed abuse of process - application refused
Ke Qin Ren (first applicant) Pei Xu (second applicant) Yi Cheng Jiang (third applicant) Gloconnect Pty Ltd ACN 106 027 730 (fourth applicant) Hong Jiang (first respondent) Yongan Xie (second respondent) Wan Ze Property Development (Aust) Pty Ltd (in liquidation) ACN 131 642 147 (third respondent)
Representation:
Counsel: MR Ellicott (applicants) DA Smallbone (first and second respondents) DC Eardley (third respondent) Solicitors: James Lee Solicitors (applicants) Austin Haworth & Lexon Legal (Sydney) (first and second respondent) Downeys Lawyers (third respondent)
LEEMING JA: The essential question presently before me is whether a non-English speaking Chinese resident, Mr Wen Qi Guo, whose affidavit has been served by the applicants, should be required to attend for cross-examination on the hearing of the first and second respondents' motion that the proceedings be stayed as an abuse of process. The factual and procedural background is moderately complex and is only reproduced below to the extent needed to explain why I have concluded that Mr Guo is not required to attend.
There are two applications for leave to appeal from judgments of Black J in the Equity Division by the applicants in this Court ("the Ren parties"). The substance of the application made by the first and second respondents in this Court ("the Jiang parties") is for the…
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.
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Details
AGLC
Ren v Jiang [2014] NSWCA 1
Case
[2014] NSWCA 1
Decision Date
CaseChat Overview and Summary
The matter of *Ren v Jiang* concerned an application for leave to cross-examine a Chinese national, Mr Guo, in support of a claim of abuse of process. The application was heard by Leeming JA.
The central legal issue before the court was whether leave should be granted for Mr Guo to be cross-examined in relation to the alleged abuse of process.
Leeming JA refused the application for leave to cross-examine Mr Guo. The court ordered that the first and second respondents were to pay the applicants' costs of this application. The proceedings were relisted for further directions on 4 February 2014 at 9:30 am.
Orders
Orders of the court
1. Application for leave for Mr Guo to be cross-examined refused.
2. First and second respondents to pay the applicants' costs of this application.
3. Relist the proceedings for further directions on 4 February 2014 at 9.30am.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]