Wang v Farkas (No 2) - [2014] NSWCA 57

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wang v Farkas (No 2) [2014] NSWCA 57
Hearing dates: 10 March 2014
Decision date: 10 March 2014
Before: Basten JA
Decision:
1. Direct the Registrar to call up the amount of the bank guarantee obtained by Mr Wang and Ms Gu from the ANZ Bank dated 26 September 2013 being Guarantee No. 153689 so that it can be paid into court.
2. Direct that the proceeds of the bank guarantee be held by the Registrar pending determination of the foreshadowed application for special leave to appeal and, if leave be granted, the appeal to the High Court of Australia.
3. In the event that the application to the High Court is dismissed or, if leave be granted, the appeal is dismissed, Mr Farkas is to pay to Mr Wang and Ms Gu the costs incurred by them by way of fees, charges and the difference between income earned on the deposit and the interest payable by them under their home mortgage with the Commonwealth Bank for the period from 10 March 2014 until the date of repayment of the funds held by the Court, interest to be assessed on the funds held from time to time until repaid or otherwise applied in accordance with an order of a court.
4. Direct that Mr Wang and Ms Gu pay the costs of this application limited to the filing fee incurred by Mr Farkas.
[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 - security for payment of debt pending appeal - judgment debt set aside on appeal - foreshadowed application for special leave to appeal to the High Court - whether security should be continued pending special application - whether arguable case for obtaining special leave - balance of potential prejudice - applicant to meet cost of security if further appeal unsuccessful
Legislation Cited: Judiciary Act 1903 (Cth), s 35
Proceeds of Crime Act 2002 (Cth)
Cases Cited: London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872
Category: Procedural and other rulings
Parties: George Farkas (Applicant)
James Wang (First Respondent)
Y Ping Gu (Second Respondent)
Representation:
Counsel:

Applicant (Self-represented)
Respondents (Self-represented)
Solicitors:
Applicant (Self-represented)
Respondents (Self-represented)

File Number(s): CA 2013/22988
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-05-20 00:00:00

Before:

North DCJ

File Number(s):

DC 2006/16064; DC 2006/16035

Judgment

BASTEN JA: In this matter the Court handed down its judgment, though without making orders, on 26 February 2014.

The present application is in effect a post-judgment Mareva injunction application seeking that the security provided by the appellants, Mr Wang and…

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 Wang v Farkas (No 2)

Details

AGLC: Wang v Farkas (No 2) [2014] NSWCA 57
Case: [2014] NSWCA 57
Decision Date: 10 March 2014

CaseChat Overview and Summary

In this matter before the Court of Appeal of New South Wales, Mr Wang and Ms Gu (the applicants) sought to continue security for a judgment debt that had been set aside on appeal. The dispute arose from a foreshadowed application for special leave to appeal to the High Court of Australia, following the setting aside of an earlier judgment in favour of Mr Farkas. The applicants sought to maintain the existing security pending the determination of their special leave application.

The primary legal issue before the Court was whether the security, in the form of a bank guarantee, should continue to be held pending the determination of the application for special leave to appeal to the High Court. This required the Court to consider whether the applicants had an arguable case for obtaining special leave and to balance the potential prejudice to both parties.

Basten JA reasoned that the applicants had demonstrated an arguable case for special leave to appeal, which was a necessary threshold for continuing the security. The Court considered the balance of potential prejudice, noting that if the further appeal were unsuccessful, the applicants would bear the costs associated with the security. The Court ultimately ordered that the Registrar call up the bank guarantee and hold the proceeds pending the determination of the special leave application and any subsequent appeal to the High Court. If the application or appeal were dismissed, Mr Farkas would be entitled to the proceeds, and the applicants would be compensated for costs and interest incurred due to the security. Conversely, the applicants were ordered to pay Mr Farkas's filing fee for the application.

Orders

Orders of the court

1. Direct the Registrar to call up the amount of the bank guarantee obtained by Mr Wang and Ms Gu from the ANZ Bank dated 26 September 2013 being Guarantee No. 153689 so that it can be paid into court.

2. Direct that the proceeds of the bank guarantee be held by the Registrar pending determination of the foreshadowed application for special leave to appeal and, if leave be granted, the appeal to the High Court of Australia.

3. In the event that the application to the High Court is dismissed or, if leave be granted, the appeal is dismissed, Mr Farkas is to pay to Mr Wang and Ms Gu the costs incurred by them by way of fees, charges and the difference between income earned on the deposit and the interest payable by them under their home mortgage with the Commonwealth Bank for the period from 10 March 2014 until the date of repayment of the funds held by the Court, interest to be assessed on the funds held from time to time until repaid or otherwise applied in accordance with an order of a court.

4. Direct that Mr Wang and Ms Gu pay the costs of this application limited to the filing fee incurred by Mr Farkas.

[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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Wang v Farkas (No 2) [2014] NSWCA 57
Hearing dates:	10 March 2014
Decision date:	10 March 2014
Before:	Basten JA
Decision:	1. Direct the Registrar to call up the amount of the bank guarantee obtained by Mr Wang and Ms Gu from the ANZ Bank dated 26 September 2013 being Guarantee No. 153689 so that it can be paid into court. 2. Direct that the proceeds of the bank guarantee be held by the Registrar pending determination of the foreshadowed application for special leave to appeal and, if leave be granted, the appeal to the High Court of Australia. 3. In the event that the application to the High Court is dismissed or, if leave be granted, the appeal is dismissed, Mr Farkas is to pay to Mr Wang and Ms Gu the costs incurred by them by way of fees, charges and the difference between income earned on the deposit and the interest payable by them under their home mortgage with the Commonwealth Bank for the period from 10 March 2014 until the date of repayment of the funds held by the Court, interest to be assessed on the funds held from time to time until repaid or otherwise applied in accordance with an order of a court. 4. Direct that Mr Wang and Ms Gu pay the costs of this application limited to the filing fee incurred by Mr Farkas. [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 - security for payment of debt pending appeal - judgment debt set aside on appeal - foreshadowed application for special leave to appeal to the High Court - whether security should be continued pending special application - whether arguable case for obtaining special leave - balance of potential prejudice - applicant to meet cost of security if further appeal unsuccessful
Legislation Cited:	Judiciary Act 1903 (Cth), s 35 Proceeds of Crime Act 2002 (Cth)
Cases Cited:	London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872
Category:	Procedural and other rulings
Parties:	George Farkas (Applicant) James Wang (First Respondent) Y Ping Gu (Second Respondent)
Representation:	Counsel: Applicant (Self-represented) Respondents (Self-represented) Solicitors: Applicant (Self-represented) Respondents (Self-represented)
File Number(s):	CA 2013/22988
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2011-05-20 00:00:00 Before: North DCJ File Number(s): DC 2006/16064; DC 2006/16035