Ren v Jiang - [2013] NSWCA 194

Court of Appeal

New South Wales

Case Title: Ren v Jiang

Medium Neutral Citation: [2013] NSWCA 194

Hearing Date(s): 17 June 2013

Decision Date: 17 June 2013

Before: Basten JA

Decision:
1. Order that the Notice of Motion filed by the first and second respondents on 26 April 2013, and the motion filed by the appellants on 24 April 2013, be stood over until 26 August 2013.

2. Order that on or before 19 August 2013, the first and second appellants pay into court the sum of $16,000 by way of security of the costs of the respondents in respect of the first and second respondents' costs to oppose the appellants' notice of motion for s 471B leave.

Note the agreement of the first and second appellants, and the first and second respondents, without admission, that:

(1) Upon condition that the first appellant receives the sum of $500,000 from Mr Guo Wen Qi by 5 August 2013 he will,

(a) notify the respondents of the receipt of funds from Mr Guo pursuant to the undertaking he has given to the Federal Court;
(b) pay into this Court the sum of $450,000 within 14 days after it is received by the first appellant from Mr Guo to be held in that account pending the outcome of all appeals and proceedings initiated by the appellants flowing from the decision of Black J of 29 June 2012, and the orders made by him on 19 July 2012 and orders of 13 March 2013, and 19 April 2013.
(c) pay into the Court the sum of $50,000 to be deposited into an interest bearing account within 14 days after it is received by the first appellant from his agreement with Mr Guo for payment of $500,000 by the end of July 2013, by way of security for costs of the first and second respondents in respect of all appeals and proceedings initiated by the appellants flowing from the aforesaid decision of and orders of Black J.

(2) In the event that the first appellant does not receive the sum of $500,000 from Mr Guo by 5 August 2013 and the agreement and actions noted in note (1) above are not subsequently complied with, the first and second respondents' motion dated 26 April 2013, and the appellants' notice of motion to set aside the notice to produce issued by the first and second respondents dated 28 March 2013, are to be relisted on 26 August 2013.

(3) In the event that the first appellant receives the sum of $500,000 from Mr Guo by 5 August 2013 and the agreement and actions noted in note (1) above are subsequently complied with:

(a) the first and second respondents' motion dated 26 April 2013 be dismissed;
(b) the notice to produce issued by the first and second respondents to the appellants dated 28 March 2013 be set aside in whole, and
(c) the appellants to pay the first and second respondents' costs of their motion as agreed or…

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 Ren v Jiang

Details

AGLC: Ren v Jiang [2013] NSWCA 194
Case: [2013] NSWCA 194
Decision Date: 17 June 2013

CaseChat Overview and Summary

This matter concerned an appeal before Basten JA, involving the first and second appellants and the first and second respondents. The dispute centred on applications relating to security for costs and a notice to produce, arising from earlier decisions and orders made by Black J. The appellants sought leave to appeal certain orders, while the respondents sought to oppose this and had issued a notice to produce.

The court was required to determine the timing of the hearing of various motions and the conditions under which security for costs would be provided by the appellants. A key issue was the existence of bankruptcy proceedings against the appellants and how this impacted the court's approach to the applications before it, particularly in the absence of any question of principle being raised.

Basten JA ordered that the parties' respective notices of motion be stood over to a later date. Crucially, the court ordered the appellants to pay $16,000 into court as security for the respondents' costs of opposing the appellants' application for leave under s 471B. This order was made subject to an agreement between the parties: if the first appellant received $500,000 from a Mr Guo Wen Qi by 5 August 2013, he would notify the respondents of the receipt and pay $450,000 into court within 14 days, to be held pending the outcome of all appeals and proceedings. A further $50,000 was to be paid into an interest-bearing account as security for costs. If these conditions were not met, the respondents' motion and the appellants' motion to set aside the notice to produce were to be relisted. If the conditions were met, the respondents' motion would be dismissed, the notice to produce set aside, and the appellants would pay the respondents' costs of their motion. The court also directed that any summons seeking leave to appeal Black J's orders be listed for first return on 26 August 2013 and vacated a prior directions hearing.

Orders

Orders of the court

1. Order that the Notice of Motion filed by the first and second respondents on 26 April 2013, and the motion filed by the appellants on 24 April 2013, be stood over until 26 August 2013.

2. Order that on or before 19 August 2013, the first and second appellants pay into court the sum of $16,000 by way of security of the costs of the respondents in respect of the first and second respondents' costs to oppose the appellants' notice of motion for s 471B leave.

Note the agreement of the first and second appellants, and the first and second respondents, without admission, that:

(1) Upon condition that the first appellant receives the sum of $500,000 from Mr Guo Wen Qi by 5 August 2013 he will,

(a) notify the respondents of the receipt of funds from Mr Guo pursuant to the undertaking he has given to the Federal Court;

(b) pay into this Court the sum of $450,000 within 14 days after it is received by the first appellant from Mr Guo to be held in that account pending the outcome of all appeals and proceedings initiated by the appellants flowing from the decision of Black J of 29 June 2012, and the orders made by him on 19 July 2012 and orders of 13 March 2013, and 19 April 2013.

(c) pay into the Court the sum of $50,000 to be deposited into an interest bearing account within 14 days after it is received by the first appellant from his agreement with Mr Guo for payment of $500,000 by the end of July 2013, by way of security for costs of the first and second respondents in respect of all appeals and proceedings initiated by the appellants flowing from the aforesaid decision of and orders of Black J.

(2) In the event that the first appellant does not receive the sum of $500,000 from Mr Guo by 5 August 2013 and the agreement and actions noted in note (1) above are not subsequently complied with, the first and second respondents' motion dated 26 April 2013, and the appellants' notice of motion to set aside the notice to produce issued by the first and second respondents dated 28 March 2013, are to be relisted on 26 August 2013.

(3) In the event that the first appellant receives the sum of $500,000 from Mr Guo by 5 August 2013 and the agreement and actions noted in note (1) above are subsequently complied with:

(a) the first and second respondents' motion dated 26 April 2013 be dismissed;

(b) the notice to produce issued by the first and second respondents to the appellants dated 28 March 2013 be set aside in whole, and

4. Direct that the appellants, if and when they file a summons seeking leave to appeal Black J's orders made this year, advise the Registrar of the need to list that summons for first return on 26 August 2013.

5. Vacate the listing of the matter for directions before the Registrar on 19 June 2013.

[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.]

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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Case Title:	Ren v Jiang
Medium Neutral Citation:	[2013] NSWCA 194
Hearing Date(s):	17 June 2013
Decision Date:	17 June 2013
Before:	Basten JA
Decision:	1. Order that the Notice of Motion filed by the first and second respondents on 26 April 2013, and the motion filed by the appellants on 24 April 2013, be stood over until 26 August 2013. 2. Order that on or before 19 August 2013, the first and second appellants pay into court the sum of $16,000 by way of security of the costs of the respondents in respect of the first and second respondents' costs to oppose the appellants' notice of motion for s 471B leave. Note the agreement of the first and second appellants, and the first and second respondents, without admission, that: (1) Upon condition that the first appellant receives the sum of $500,000 from Mr Guo Wen Qi by 5 August 2013 he will, (a) notify the respondents of the receipt of funds from Mr Guo pursuant to the undertaking he has given to the Federal Court; (b) pay into this Court the sum of $450,000 within 14 days after it is received by the first appellant from Mr Guo to be held in that account pending the outcome of all appeals and proceedings initiated by the appellants flowing from the decision of Black J of 29 June 2012, and the orders made by him on 19 July 2012 and orders of 13 March 2013, and 19 April 2013. (c) pay into the Court the sum of $50,000 to be deposited into an interest bearing account within 14 days after it is received by the first appellant from his agreement with Mr Guo for payment of $500,000 by the end of July 2013, by way of security for costs of the first and second respondents in respect of all appeals and proceedings initiated by the appellants flowing from the aforesaid decision of and orders of Black J. (2) In the event that the first appellant does not receive the sum of $500,000 from Mr Guo by 5 August 2013 and the agreement and actions noted in note (1) above are not subsequently complied with, the first and second respondents' motion dated 26 April 2013, and the appellants' notice of motion to set aside the notice to produce issued by the first and second respondents dated 28 March 2013, are to be relisted on 26 August 2013. (3) In the event that the first appellant receives the sum of $500,000 from Mr Guo by 5 August 2013 and the agreement and actions noted in note (1) above are subsequently complied with: (a) the first and second respondents' motion dated 26 April 2013 be dismissed; (b) the notice to produce issued by the first and second respondents to the appellants dated 28 March 2013 be set aside in whole, and (c) the appellants to pay the first and second respondents' costs of their motion as agreed or…