Wang v Farkas (No 2)

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.