Ren v Jiang (No 2)

[2014] NSWCA 119

Court of Appeal

New South Wales

Case Title:

Ren v Jiang (No 2)

Medium Neutral Citation:

[2014] NSWCA 119

Hearing Date(s):

On the papers

Decision Date:

09 April 2014

Before:

Leeming JA

Decision:

(1) The directions hearing on 11 April 2014 at 9.30am be vacated.

(2) The First and Second Respondents to file and serve any further evidence in support of their motions by 28 April 2014.

(3) The First and Second Respondents to file and serve a concise articulation of the abuse of process for which they contend by 28 April 2014.

(4) The Applicants to file and serve on or before 23 May 2014:
(a) their evidence in response to the motions for security for costs and/or judgment and abuse of process; and
(b) their evidence, or a précis of their evidence, in support of their application under s 471B.

(5) Liberty to apply on two days' notice.

(6) Stand over the proceedings for further directions at 9.30am on 29 May 2014.

[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 - adjournment - by consent - granted having regard to pending decision in Federal Court

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56, s 57, s 58

Cases Cited:

Ren v Jiang [2013] NSWCA 194
Ren v Jiang [2014] NSWCA 1

Category:

Interlocutory applications

Parties:

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:

Counsel:
MR Ellicott (applicants)
DA Smallbone (first and second respondents)
DC Eardley (third respondent)

- Solicitors:

Solicitors:
Ren Zhou Lawyers (applicants)
Austin Haworth & Lexon Legal (Sydney) (first and second respondent)
Downeys Lawyers (third respondent)

File Number(s):

2012/240805; 2013/93863

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Black J

- Date of Decision: 

19 July 2012

- Citation:

[2012] NSWSC 821

- Court File Number(s):

2011/51745

JUDGMENT

1. LEEMING JA: These proceedings have had an unfortunately lengthy history in this Court, even though they amount merely to applications to seek leave to appeal from two interlocutory decisions of the Court in the Equity Division. They came before a Judge of Appeal in June 2013, when many interlocutory issues were seemingly resolved, in part by an agreed regime for the provision of security in amounts totalling $516,000: [2013] NSWCA 194.

2. However, that aspect of that regime which required paying into Court $500,000 by 5 August 2013 was not complied with, and there is a dispute and competing evidence as to how that came about. In the meantime, the first and second respondents (Ren respondents) maintain that the proceedings in this Court seeking leave are themselves an abuse of process and should be dismissed or stayed for that reason.

3. Despite the seriousness of the allegations, the parties have acquiesced in what I have previously described as a relaxed timetable. The procedural history until the beginning of this year is described in [2014] NSWCA 1 at [4]. Of present relevance is the fact that most of the parties have participated in a ten day hearing in the Federal Court on related issues, in respect of which judgment is reserved.

4. The proceedings were adjourned by consent for a month on 4 February 2014. On 11 March 2014 I made directions imposing obligations on both parties to ready for hearing the Ren respondents' motion to have the proceedings dismissed as an abuse of process, with a view to a date being allocated when the matter returned to me for directions on 11 May. Last night at around 8pm, short minutes of order signed by all parties were provided to my chambers which amount to an extension, for around six weeks, of each of the timetabling directions made by me on 11 March 2014. I infer that no party has complied with any of the obligations to which he, she or it was subject.

5. The time when consent adjournments could readily and invariably be obtained month after month is long since past. Section 58(2) of the Civil Procedure Act 2005 (NSW) requires this Court to have regard to ss 56 and 57 when making the orders sought. I confess to finding it difficult to see how the objects of efficiency and timeliness in s 57 have been fulfilled to date, or how there has been compliance with s 56(3) and (4), although the persons who are subject to those obligations are entitled to be heard before any final conclusion is reached. However, in the highly unusual circumstances of this case, I think I must also have regard to the fact that all parties have repeatedly assured me that the outcome of the trial in the Federal Court will substantially reduce and perhaps entirely eliminate the proceedings in this Court altogether. In those unusual circumstances, I will make the orders sought by the parties by consent, save that I have granted liberty to apply on two days' notice, rather than the 24 hours the parties proposed. The orders are:

   (1)The directions hearing on 11 April 2014 at 9.30am be vacated.

   (2)The First and Second Respondents to file and serve any further evidence in support of their motions by 28 April 2014.

   (3)The First and Second Respondents to file and serve a concise articulation of the abuse of process for which they contend by 28 April 2014.

   (4)The Applicants to file and serve on or before 23 May 2014:

   (a)their evidence in response to the motions for security for costs and/or judgment and abuse of process; and

   (b)their evidence, or a précis of their evidence, in support of their application under s 471B.

   (5)Liberty to apply on two days' notice.

   (6)Stand over the proceedings for further directions at 9.30am on 29 May 2014.

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