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Ren v Jiang (No 3)

Ren v Jiang (No 3)

Case [2014] NSWCA 204 27 June 2014

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Procedural Fairness

Civil Procedure

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ren v Jiang (No 3) [2014] NSWCA 204
Hearing dates: 26 June 2014
Decision date: 27 June 2014
Before: Leeming JA
Decision:
1. Application for the third applicant to be represented separately from the other applicants dismissed.
2. The third applicant to pay the other parties' costs of that application.
3. Stand over the proceedings to the Registrar's list on Monday 21 July 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 AND PROCEDURE - interlocutory applications - application for one of four applicants for leave to appeal to be separately represented - application opposed by all other active parties - application refused
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-59
Corporations Act 2001 (Cth), s 471B
Supreme Court Act 1970 (NSW), s 46
Uniform Civil Procedure Rules 2005 (NSW), r 6.9(2)
Cases Cited: Downs v Civil Aviation Authority (1992) 57 SASR 303
Franklin River Olive Company Ltd v Charters Securities Pty Ltd [2004] WASC 88
In the Matter of Wan Ze Property Development (Aust) Pty Ltd [2012] NSWSC 722; (2012) 90 ACSR 593
R v Khazaal [2006] NSWSC 1353; 167 A Crim R 565
Ren v Jiang [2013] NSWCA 194
Ren v Jiang [2014] NSWCA 1
Ren v Jiang (No 2) [2014] NSWCA 119
Xu v Wan Ze Development (Aust) (in liq) [2014] FCA 461
Category: Interlocutory applications
Parties: Ke Qin Ren (1st applicant)
Pei Xu (2nd applicant)
Yi Cheng Jiang (3rd applicant)
Gloconnect Pty Ltd ACN 106 027 730 (4th applicant)
Hong Jiang (1st respondent)
Yongan Xie (2nd respondent)
Wan Ze Property Development (Aust) Pty Ltd (in liquidation) ACN 131 642 147 (3rd respondent)
Representation: Counsel:
J Sexton SC and J Lee (1st, 2nd and 4th applicant)
E Holmes (3rd applicant)
DA Smallbone (1st and 2nd respondents)
DC Eardley (3rd respondent)
Solicitors:
Ren Zhou Lawyers (1st, 2nd and 4th applicants)
Gadens (3rd applicant)
Austin Haworth & Lexon Legal (Sydney) (1st and 2nd respondent)
Downeys Lawyers (3rd respondent)

File Number(s): 2012/240805
Decision under appeal

Jurisdiction:

9111

Citation:

[2012] NSWSC 821

Date of Decision:

2012-07-19 00:00:00

Before:

Black J

File Number(s):

2011/51745

Judgment

LEEMING JA: The question before me is whether I should grant leave to permit the 3rd applicant, Mr Yi Cheng Jiang, to be separately represented, by solicitors and junior counsel, in pending proceedings in this Court. In order to answer that question, I need to say something about the nature of those proceedings, something about what is to happen to them in the future, and something about what has occurred in the past.

The applicants in this Court were defendants in…

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 (No 3)

Details

AGLC: Ren v Jiang (No 3) [2014] NSWCA 204
Case: [2014] NSWCA 204
Decision Date: 27 June 2014

CaseChat Overview and Summary

The Court of Appeal of New South Wales, constituted by Leeming JA, considered an application by the third applicant, Ms Ren, for leave to be separately represented in proceedings against the respondents, Mr Jiang and others. The application was opposed by all other active parties in the litigation.

The primary legal issue before the Court was whether Ms Ren should be granted leave to sever her representation from that of the other applicants. This required the Court to consider the circumstances under which separate representation would be permitted, particularly when opposed by other parties.

Leeming JA dismissed the application, reasoning that there was no sufficient basis to grant separate representation. The Court applied the principle that separate representation is not a matter of right and requires a compelling reason, especially when it would complicate or delay proceedings and is opposed by other parties. The Court found that Ms Ren had not demonstrated such a compelling reason.

Consequently, the Court ordered that the application for separate representation be dismissed and that Ms Ren pay the costs of the other parties in relation to that application. The proceedings were then stood over to the Registrar's list.

Orders

Orders of the court

1. Application for the third applicant to be represented separately from the other applicants dismissed.

2. The third applicant to pay the other parties' costs of that application.

3. Stand over the proceedings to the Registrar's list on Monday 21 July 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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Ren v Jiang (No 3) [2014] NSWCA 204

Most Recent Citation

Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674

Cases citing this decision · 8 of 8 shown

Oliver v State of New South Wales
[2025] NSWDC 340

…114 CLR 164; [1965] HCA 34 Qualcast (Wolverhampton) Ltd v Haynes (1959) AC 743 Ren v Jiang (No 3) [2014] NSWCA 204 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 S v State of New South Wales [2009] NSWCA 164 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Smith v Brok…
Chase v Ausgrid Management Pty Ltd
[2022] NSWDC 337 Para 54

…icting cross-examination on affidavits in interlocutory applications because it was necessary to clarify some factual details: Ren v Jiang (No 3) [2014] NSWCA 204, at [11]; Markisic v Commonwealth of Australia [2010] NSWCA 273, at [31].…
Hamzy v Commissioner of Corrective Services NSW
[2022] NSWCA 16

…Corrective Services [2008] NSWSC 161 Ren v Jiang (No 3) [2014] NSWCA 204 Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33 Rondel v Worsley [1969] 1 AC 191 Ruhani v Director of Police (No 2) (2005) 222 CLR 580; [2005] HCA 43 Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 F…
Y v The Secretary, Department of Communities and Justice
[2020] NSWDC 674 Para 35

…ation on interlocutory matters is a procedure that requires leave and insufficient grounds had been shown to justify such leave: Ren v Jiang (No 3) [2014] NSWCA 204, at [11]; Markisic v Commonwealth of Australia [2010] NSWCA 273, at [31]. Thirdly, to allow such cross-examination of a non-party was contrary to the s…
Aces Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia
[2014] NSWCA 402 Para 32

…a single appeal from a single judgment and single set of orders binding all of them, so long as there is common representation: cf Ren v Jiang (No 3) [2014] NSWCA 204. Indeed, any other course is apt to produce delay and expense contrary to the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW). In an…
Ren v Jiang
[2014] NSWCA 388 Para 1

…of which there are separate applications by Mr Ren, Ms Xu and Gloconnect on the one hand, and Mr Yi Cheng Jiang on the other: see Ren v Jiang (No 3) [2014] NSWCA 204. Procedural directions were made - over the opposition of Ms Hong Jiang and Mr Yongan Xie - so as to ensure that both applications were heard and det…
Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd (in Liq)
[2014] NSWCA 350 Para 3

…eng Jiang, was, until very recently, the third applicant in the Ren v Jiang proceeding. In circumstances which were the subject of Ren v Jiang (No 3) [2014] NSWCA 204, on 27 June 2014 I refused his application to be represented separately from the other applicants within that proceeding. Following that decision, an…
Ren v Jiang (No 4)
[2014] NSWCA 315 Para 6

…A third contributing factor has been changes of solicitors on the part of the applicants. The background for that is set out in Ren v Jiang (No 3) [2014] NSWCA 204.…

View all 8 citing cases →

Cases cited in this decision · 8 of 8 shown

Xu v Wan Ze Property Development (Aust) Pty Ltd (in liquidation)
[2014] FCA 461 Para 1

…12] NSWSC 722; 90 ACSR 593. Orders were made on 19 July 2012. The nature of those proceedings is described in Xu v Wan Ze Development (Aust) (in liq) [2014] FCA 461 at [8]-[21] and is unnecessary to repeat here. Amongst other orders, the first and second applicants Mr Ren and Ms Xu were ordered to repay $2,364,99…
Ren v Jiang (No 2)
[2014] NSWCA 119 Para 1

…(if I may say so, constructively) by all parties earlier this year, and was the reason for my granting an adjournment by consent: Ren v Jiang (No 2) [2014] NSWCA 119. The first of two unusual features of this litigation is that the judgment debt of some $2.3 million created by the orders has not been stayed, and i…
Ren v Jiang
[2014] NSWCA 1 Para 1

…of it whose exhibit exceeds 1200 pages. Another is that it was this motion which gave rise to the threshold question determined by me in Ren v Jiang [2014] NSWCA 1 as to whether the first and second respondents would be entitled to cross-examine one of the applicants' deponents at length and on his credit. At [7…
Ren v Jiang
[2013] NSWCA 194 Para 1

…and the fact that a series of applications including relating to security for costs was listed before Basten JA more than a year ago (see Ren v Jiang [2013] NSWCA 194), the third respondent liquidator flags that he will, or may, seek security for his costs. I think it is appropriate to say at once, lest there by an…
In the matter of Wan Ze Property Development (Aust) Pty Ltd (No 2)
[2012] NSWSC 821

…gal (Sydney) (1st and 2nd respondent) Downeys Lawyers (3rd respondent) File Number(s): 2012/240805 Decision under appeal Jurisdiction: 9111 Citation: [2012] NSWSC 821 Date of Decision: 2012-07-19 00:00:00 Before: Black J File Number(s): 2011/51745…
Re Wan Ze Property Development (Aust) Pty Ltd
[2012] NSWSC 722

…in River Olive Company Ltd v Charters Securities Pty Ltd [2004] WASC 88 In the Matter of Wan Ze Property Development (Aust) Pty Ltd [2012] NSWSC 722; (2012) 90 ACSR 593 R v Khazaal [2006] NSWSC 1353; 167 A Crim R 565 Ren v Jiang [2013] NSWCA 194 Ren v Jiang [2014] NSWCA 1 Ren v Jiang (No 2) [2014] NSWCA 119 Xu v Wan…
R v Khazaal
[2006] NSWSC 1353 Para 1

…id in Downs v Civil Aviation Authority (1992) 57 SASR 303 at 307. To that reference may be added the authorities collected by Whealy J in R v Khazaal [2006] NSWSC 1353; 167 A Crim R 565 at [23]-[27], which included Pullin J's statement in Franklin River Olive Company Ltd v Charters Securities Pty Ltd [2004] WASC 88…
Frankland River Olive Company Ltd v Charters Securities Pty Ltd (Receiver and Manager Appointed)
[2004] WASC 88 Para 1

…006] NSWSC 1353; 167 A Crim R 565 at [23]-[27], which included Pullin J's statement in Franklin River Olive Company Ltd v Charters Securities Pty Ltd [2004] WASC 88 at [25]-[26] that "It is undoubtedly a serious step to deprive a party of counsel or solicitors of that party's choice".…

Legislation cited in this decision · 4

Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 1)
Corporations Act 2001 (Cth)
471B 2 mentions (from Para 1)
Supreme Court Act 1970 (NSW)
46 2 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
6.9(2) 2 mentions (from Para 1)

Medium Neutral Citation:	Ren v Jiang (No 3) [2014] NSWCA 204
Hearing dates:	26 June 2014
Decision date:	27 June 2014
Before:	Leeming JA
Decision:	1. Application for the third applicant to be represented separately from the other applicants dismissed. 2. The third applicant to pay the other parties' costs of that application. 3. Stand over the proceedings to the Registrar's list on Monday 21 July 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 AND PROCEDURE - interlocutory applications - application for one of four applicants for leave to appeal to be separately represented - application opposed by all other active parties - application refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-59 Corporations Act 2001 (Cth), s 471B Supreme Court Act 1970 (NSW), s 46 Uniform Civil Procedure Rules 2005 (NSW), r 6.9(2)
Cases Cited:	Downs v Civil Aviation Authority (1992) 57 SASR 303 Franklin River Olive Company Ltd v Charters Securities Pty Ltd [2004] WASC 88 In the Matter of Wan Ze Property Development (Aust) Pty Ltd [2012] NSWSC 722; (2012) 90 ACSR 593 R v Khazaal [2006] NSWSC 1353; 167 A Crim R 565 Ren v Jiang [2013] NSWCA 194 Ren v Jiang [2014] NSWCA 1 Ren v Jiang (No 2) [2014] NSWCA 119 Xu v Wan Ze Development (Aust) (in liq) [2014] FCA 461
Category:	Interlocutory applications
Parties:	Ke Qin Ren (1st applicant) Pei Xu (2nd applicant) Yi Cheng Jiang (3rd applicant) Gloconnect Pty Ltd ACN 106 027 730 (4th applicant) Hong Jiang (1st respondent) Yongan Xie (2nd respondent) Wan Ze Property Development (Aust) Pty Ltd (in liquidation) ACN 131 642 147 (3rd respondent)
Representation:	Counsel: J Sexton SC and J Lee (1st, 2nd and 4th applicant) E Holmes (3rd applicant) DA Smallbone (1st and 2nd respondents) DC Eardley (3rd respondent) Solicitors: Ren Zhou Lawyers (1st, 2nd and 4th applicants) Gadens (3rd applicant) Austin Haworth & Lexon Legal (Sydney) (1st and 2nd respondent) Downeys Lawyers (3rd respondent)
File Number(s):	2012/240805
Decision under appeal	Jurisdiction: 9111 Citation: [2012] NSWSC 821 Date of Decision: 2012-07-19 00:00:00 Before: Black J File Number(s): 2011/51745