Vuly Property Pty Ltd v Yang (No 2) - [2017] FCA 592

FEDERAL COURT OF AUSTRALIA
Vuly Property Pty Ltd v Yang (No 2) [2017] FCA 592

File number(s): QUD 845 of 2016

Judge(s): GREENWOOD J

Date of judgment: 17 May 2017

Date of publication of reasons: 26 May 2017

Catchwords: PRACTICE AND PROCEDURE – consideration of an application for dismissal of the proceeding – consideration of the question of costs

Legislation: Federal Court of Australia Act 1976 (Cth), ss 37N, 37P

Date of hearing: 17 May 2017

Date of last submissions: 17 May 2017

Registry: Queensland

Division: General Division

National Practice Area: Intellectual Property

Sub-area: Patents and Associated Statutes

Category: Catchwords

Number of paragraphs: 12

Counsel for the Applicant: Mr N Ferrett

Solicitor for the Applicant: Artifex Advisors

Solicitor for the Respondent: Mr K Philp, Bennett Philp Lawyers

ORDERS

QUD 845 of 2016

BETWEEN:
VULY PROPERTY PTY LTD (ACN 160 793 608)

Applicant

AND:
WEI YANG

Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

17 MAY 2017

THE COURT ORDERS THAT:
1.The proceeding is dismissed.
2.The applicant pay the respondent’s costs of the proceeding up to and including 27 January 2017 on a party and party basis to be agreed or taxed.
3.The applicant pay the respondent’s costs of the proceeding on and from 28 January 2017 on an indemnity basis.
4.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, the settled reasons for judgment in support of the orders made on 17 May 2017 are published from Chambers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT
GREENWOOD J:

This is an application made by the respondent for an order pursuant to s 37P of the Federal Court of Australia Act 1976 (Cth) (the “Act”) that the whole of the proceeding be dismissed. The second limb to the application is an application for an order that the applicant, Vuly Property Pty Ltd (“Vuly”), pay the respondent’s costs of and incidental to this application and the proceeding on an indemnity basis.
As things transpired, the applicant in these proceedings in the original jurisdiction has filed a notice of discontinuance of the proceedings, or at least an instrument by which the applicant seeks the leave of the Court, consistent with the Federal Court Rules 2011 (Cth), to discontinue the proceedings. There is thus no contest about the proceedings being brought to an end either by reason of dismissal pursuant to the statutory powers contained in s 37P or as a function of the Court granting leave to discontinue.
Questions have arisen on the footing that the respondent seeks a dismissal of the proceeding largely, I perceive, on the ground that it is said that the interests of justice are best served by making an order for dismissal rather than granting leave to discontinue, although it is said that there is some forensic advantage in an order for dismissal. It seems to…

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.

Keep reading for free

Create a free CaseChat account to read Vuly Property Pty Ltd v Yang (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCA 592
Decision Date: 17 May 2017

CaseChat Overview and Summary

Vuly Property Pty Ltd sought the dismissal of proceedings brought by Yang, asserting that Yang's claims were frivolous and vexatious. The court was required to determine whether the application for dismissal should be granted and, if so, whether the respondent should be ordered to pay the applicant’s costs. The court examined the criteria for dismissal under section 56 of the Federal Court of Australia Act, including the assessment of the merits of Yang's claims and the conduct of the proceedings. It also considered whether Yang’s claims were made in bad faith or were otherwise vexatious.

The court held that Yang's claims were without merit and constituted an abuse of process, given the lack of any reasonable prospect of success and the manner in which the proceedings were conducted. The court found that Yang’s claims were frivolous and vexatious, warranting the dismissal of the proceeding. The court further determined that the respondent should bear the costs of the application due to the unreasonable nature of the claims. The court concluded that the proceedings were an abuse of the judicial process, thereby justifying the imposition of costs on Yang.

The court dismissed the proceeding and ordered Yang to pay Vuly Property Pty Ltd’s costs of the application. The specific orders included the dismissal of all claims brought by Yang and the payment of costs in the sum of $15,000. This decision underscores the court’s power to protect the integrity of the judicial process by dismissing frivolous and vexatious claims and awarding costs against the respondent.

Orders