Wang v Anying Group Pty Ltd

Case [2009] FCA 1500

FEDERAL COURT OF AUSTRALIA

Wang v Anying Group Pty Ltd [2009] FCA 1500

PRACTICE AND PROCEDURE – whether summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) justified – whether the whole or part of the respondents’ Cross-Claim should be dismissed or struck out – whether interlocutory injunction should be granted – all applications refused

Corporations Act 2001 (Cth)
Federal Court of Australia Act 1976 (Cth), s 31A
Trade Marks Act 1995 (Cth), ss 44(3)(b), 58, 60, 62, 62A, 88, 120, 122(1)(f) and 126
Trade Practices Act 1974 (Cth), ss 51AC, 52, 53

Federal Court Rules O 6 r 9, O 11 r 16, O 20 r 5

Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 cited
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 applied
Health World Ltd v Shin-Sun Australia Pty Ltd (2008) 75 IPR 478 applied
James North (Aust) Pty Ltd v Blundstone Pty Ltd (1978) 48 AOJP 2419, (1978) 1b IPR 596 applied
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 cited
Radio & Records Inc v Dahlke (2005) 67 IPR 187 cited
Sebel Furniture Ltd v Acoustic & Felts Pty Ltd (2009) 80 IPR 244 applied

HUA WEI WANG, XINYING PTY LTD (ACN 118 548 977) and NEW CENTURY 2001 PTY LTD TRADING AS ANYING SYDNEY COMPANY (ACN 114 661 568) v ANYING GROUP PTY LTD (ACN 126 282 657), YANYAN SUN and YUN CHEN; ANYING GROUP PTY LTD (ACN 126 282 657), YANYAN SUN and YUN CHEN v HUA WEI WANG, XINYING PTY LTD (ACN 118 548 977), NEW CENTURY 2001 PTY LTD TRADING AS ANYING SYDNEY COMPANY (ACN 114 661 568), REGISTRAR OF TRADE MARKS, CHUANG WANG and ANYING INTERNATIONAL FINANCIAL PTY LIMITED (ACN 105 067 990)

NSD 768 of 2008

FOSTER J
14 DECEMBER 2009
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

general division

NSD 768 of 2008

BETWEEN:

HUA WEI WANG
First Applicant

XINYING PTY LTD (ACN 118 548 977)
Second Applicant

NEW CENTURY 2001 PTY LTD TRADING AS ANYING SYDNEY COMPANY (ACN 114 661 568)
Third Applicant

AND:

ANYING GROUP PTY LTD (ACN 126 282 657)
First Respondent

YANYAN SUN
Second Respondent

YUN CHEN
Third Respondent

AND BETWEEN:

ANYING GROUP PTY LTD (ACN 126 282 657)
First Cross-Claimant

YANYAN SUN
Second Cross-Claimant

YUN CHEN
Third Cross-Claimant

and:

HUA WEI WANG
First Cross-Respondent

XINYING PTY LTD (ACN 118 548 977)
Second Cross-Respondent

NEW CENTURY 2001 PTY LTD TRADING AS ANYING SYDNEY COMPANY (ACN 114 661 568)
Third Cross-Respondent

REGISTRAR OF TRADE MARKS
FOURTH Cross-Respondent

CHUANG WANG
FIFth Cross-Respondent

ANYING INTERNATIONAL FINANCIAL PTY LIMITED (ACN 105 067 990)
SIXth cross-respondent

JUDGE:

FOSTER J

DATE OF ORDER:

14 DECEMBER 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The respondents have leave to file an Amended Cross-Claim Application substantially in the form of the document Marked for Identification 4 by Foster J on 7 April 2009, such…

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AGLC
Wang v Anying Group Pty Ltd [2009] FCA 1500
Case
[2009] FCA 1500
Decision Date

CaseChat Overview and Summary

The case of Wang v Anying Group Pty Ltd involves an application for summary judgment under s 31A of the Federal Court Act. The applicants seek summary judgment against the respondents, who are defending the proceedings. The respondents oppose the application for summary judgment and have filed a cross-claim. The key legal issue before the court is whether the respondents have any reasonable prospect of successfully defending the proceeding or cross-claim.

The court examines the pleadings and evidence to determine if the respondents have any viable defence or cross-claim. The principles established in the authorities indicate that the court must adopt a flexible approach, considering the quality and weight of the evidence presented by the respondents to assess whether there is any issue that should be permitted to go to trial. The test under s 31A(1) requires the court to consider whether there is any issue that should be allowed to proceed to trial, rather than whether there is any issue that could arguably go to trial.

The court finds that the respondents have presented sufficient evidence to outline a potential defence or cross-claim, which warrants further examination at trial. Consequently, the court dismisses the applicants' notice of motion for summary judgment, allows the respondents to file an amended cross-claim application, and orders the proceedings to be listed for directions and mediation. The applicants are also directed to pay the respondents' costs of and incidental to the motion.

ORDERS:
1. The respondents have leave to file an Amended Cross-Claim Application substantially in the form of the document Marked for Identification 4 by Foster J on 7 April 2009, such Amended Cross-Claim Application to be filed and served by 21 December 2009.
2. The Notice of Motion filed by the applicants on 16 February 2009 be dismissed.
3. The applicants pay the respondents’ costs of and incidental to that Notice of Motion.
4. The proceedings be listed for directions at 9.30 am on 22 December 2009 before Foster J.
5. The solicitors for the parties confer as soon as possible but by no later than 17 December 2009, with a view to agreeing on a set of trial directions to be made on 22 December 2009, such agreed trial directions to be forwarded to the Associate to Foster J by no later that 5.00 pm on 21 December 2009.
6. The solicitors for the parties confer as soon as practicable with a view to arranging for all matters raised in the proceedings to be mediated by a Mediator chosen by the parties in accordance with terms to be agreed amongst the parties, such mediation to take place in Sydney or in such other place as the parties may agree by no later than 26 February 2010.
7. All parties have liberty to apply on two days’ notice.

Orders

Orders of the court

1. The respondents have leave to file an Amended Cross-Claim Application substantially in the form of the document Marked for Identification 4 by Foster J on 7 April 2009, such Amended Cross-Claim Application to be filed and served by 21 December 2009.

2. The Notice of Motion filed by the applicants on 16 February 2009 be dismissed.

3. The applicants pay the respondents’ costs of and incidental to that Notice of Motion.

4. The proceedings be listed for directions at 9.30 am on 22 December 2009 before Foster J.

5. The solicitors for the parties confer as soon as possible but by no later than 17 December 2009, with a view to agreeing on a set of trial directions to be made on 22 December 2009, such agreed trial directions to be forwarded to the Associate to Foster J by no later that 5.00 pm on 21 December 2009.

6. The solicitors for the parties confer as soon as practicable with a view to arranging for all matters raised in the proceedings to be mediated by a Mediator chosen by the parties in accordance with terms to be agreed amongst the parties, such mediation to take place in Sydney or in such other place as the parties may agree by no later than 26 February 2010.

7. All parties have liberty to apply on two days’ notice.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FOSTER J
The applicants rely upon s 31A of the Federal Court Act as the source of power for the summary judgment which they seek. Section 31A is in the following terms:31A Summary judgment(1)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is prosecuting the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is defending the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a)hopeless; or(b)bound to fail;for it to have no reasonable prospect of success.(4)This section does not limit any powers that the Court has apart from this section.(5)This section does not apply to criminal proceedings. The critical words of s 31A(1), when applied to the present case, require me to be satisfied that the respondents have “… no reasonable prospect of successfully defending the proceeding …”. The following principles may be extracted from the authorities:(a)The moving party does not have to demonstrate that the defence is hopeless or unarguable;(b)The Court must consider the pleadings and the evidence with a “critical eye” in order to see whether the respondent party has evidence of sufficient quality and weight to be able to succeed at trial (Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at [23] (p 382) (per Finkelstein J));(c)The respondent party is not obliged to present its whole case in order to defeat the summary judgment applicant but must at least present a sufficient outline of the evidence in order to enable the Court to come to a preliminary view about the merits for the purpose of considering the statutory test in s 31A(1)(b) (Jefferson Ford Pty Ltd 167 FCR 372 at [22] (p 382) (per Finkelstein J)); and (d)The test may require greater scrutiny of the pleadings and evidence in some cases than in others. In my judgment, the words of s 31A(1) compel a flexible approach. The real question in every case is not so much whether there is any issue that could arguably go to trial but rather whether there is any issue that should be permitted to go to trial. This seems to be the approach of Finkelstein J in Jefferson Ford Pty Ltd 167 FCR 372 and of Gordon J in the same case (as to which see [123]–[134] (pp 406–409)), although Rares J in that case at [73]–[74] (p 394) and in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 esp at [45] (p 731) favoured a test which is much closer to the older test articulated in authorities decided under Rules of Court expressed in terms different from the language of s 31A(1)).

Ratio Decidendi

Legal Principle Established

Established by: FOSTER J

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