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, 53Federal 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 appliedHUA 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 ApplicantXINYING PTY LTD (ACN 118 548 977)
Second ApplicantNEW CENTURY 2001 PTY LTD TRADING AS ANYING SYDNEY COMPANY (ACN 114 661 568)
Third ApplicantAND:
ANYING GROUP PTY LTD (ACN 126 282 657)
First RespondentYANYAN SUN
Second RespondentYUN CHEN
Third RespondentAND BETWEEN:
ANYING GROUP PTY LTD (ACN 126 282 657)
First Cross-ClaimantYANYAN SUN
Second Cross-ClaimantYUN CHEN
Third Cross-Claimantand:
HUA WEI WANG
First Cross-RespondentXINYING PTY LTD (ACN 118 548 977)
Second Cross-RespondentNEW CENTURY 2001 PTY LTD TRADING AS ANYING SYDNEY COMPANY (ACN 114 661 568)
Third Cross-RespondentREGISTRAR OF TRADE MARKS
FOURTH Cross-RespondentCHUANG WANG
FIFth Cross-RespondentANYING INTERNATIONAL FINANCIAL PTY LIMITED (ACN 105 067 990)
SIXth cross-respondentJUDGE:
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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- Wang v Anying Group Pty Ltd [2009] FCA 1500
- Case
- [2009] FCA 1500
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
Established by: FOSTER J
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