Wang v Farkas (No 5)

[2015] NSWCA 77

Court of Appeal
Supreme Court

New South Wales

Case Name:	Wang v Farkas (No 5)
Medium Neutral Citation:	[2015] NSWCA 77
Hearing Date(s):	On the papers
Decision Date:	30 March 2015
Before:	Basten JA
Decision:	No orders made
Catchwords:	PRACTICE and PROCEDURE – application to release security – application for extension of time to present case in response – need to consider overriding purpose – Civil Procedure Act 2005 (NSW), s 56
Legislation Cited:	Civil Procedure Act 2005 (NSW), Pt 6
Cases Cited:	Expense Reduction Analyst Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303
Category:	Procedural and other rulings
Parties:	James Wang (First Applicant) Y Ping Gu (Second Applicant) George Farkas (Respondent)
Representation:	Counsel: Applicants (Self-represented) Respondent (Self-represented) Solicitors: Applicants (Self-represented) Respondent (Self-represented)
File Number(s):	2013/22988
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	20 May 2011
Before:	North DCJ
File Number(s):	DC 2006/16064; DC 2006/16035

[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.]

JUDGMENT

1. BASTEN JA: On 10 March 2014 the Court made orders requiring the Registrar to call up the amount of a bank guarantee obtained by Mr Wang and Ms Gu (the applicants), with the proceeds to be held by the Registrar pending determination of an application foreshadowed by Mr Farkas for special leave to appeal from the judgment of this Court and, if leave be granted, the appeal in the High Court of Australia. The Court made a third order in the following terms:

   “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.”

2. On 18 February 2015 the applicants filed a notice of motion seeking release of the proceeds of the guarantee and payment by Mr Farkas of the amounts recoverable pursuant to order (3).

3. The motion came before me on 2 March 2015. On that date, Mr Farkas indicated that he was not ready to proceed. He indicated that he wished to put on evidence in response to the motion, which he had not had time to do. Mr Farkas indicated two bases upon which he would resist the motion. First, he wished, in effect, to have retained by way of security an amount sufficient to cover outstanding costs orders to which he said he remained entitled, not being affected by the orders of this Court. Secondly, he wished to reopen the terms of the order made on 10 March 2014.

4. The directions on 2 March 2015 adjourned the motion to 9am on 22 April 2015. In the meantime, Mr Farkas was directed to file and serve by 5pm on 23 March 2015 any motion, affidavit or submissions he wished to file in respect of the applicants’ motion and the orders of 10 March 2014. The applicants were required to file and serve material by way of response by 5pm on 13 April 2015.

5. As a result of an informal application made by email to my associate on 23 March 2015, Mr Farkas sought an extension of time within which to prepare, file and serve the material upon which he wished to rely. He claimed that he had been diagnosed on 6 March 2015 with viral pneumonia and had a certificate indicating he would incapacitated “until 24 April.” The certificate was not provided. The incapacity was clearly not total because the extension was sought only until 13 April 2015.

6. One might have expected that a person qualified in law (as Mr Farkas is) would have adopted a more formal procedure by way of notice of motion, supported by an affidavit. If he were not able to do that himself, he should have considered engaging a solicitor to take those steps on his behalf.

7. The applicants responded by email on 25 March 2015, also to my associate, following the unfortunate precedent set by Mr Farkas. The applicants made the point that the original and sole purpose for calling in the guarantee and requiring that the funds be deposited with the Registrar was by way of security against the possibility that the judgment of this Court might be overturned on appeal. Mr Farkas has now made it clear that he did not, within the prescribed time, seek special leave to appeal; nor, he told the Court, did he intend to seek an extension of time. In those circumstances, the purpose of the deposit having been fulfilled, it was submitted, the full amount should be released to the applicants.

8. It appears that there may be further disputation as to any amount payable by Mr Farkas to the applicants, in accordance with order (3). If there is some amount payable by the applicants to Mr Farkas, on account of costs, that amount will no doubt be identified and agreed or determined by a judicial officer.

9. This is satellite litigation of a kind deplored by the High Court in Expense Reduction Analyst Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd.[1] Such proceedings are to be disposed of expeditiously in accordance with the requirements of Pt 6 of the Civil Procedure Act 2005 (NSW).

   [1] [2013] HCA 46; 250 CLR 303.

10. The expressed purpose of the order for security having passed, it is difficult to see any reason why the security should not be released forthwith. It was not intended to provide security for small amounts which might or might not be owing to Mr Farkas despite the decision of this Court: rather it was to provide security against the possibility that the orders of this Court were set aside, not if they were upheld.

11. Further, it would require some material quite out of the ordinary in order to permit a variation of the terms on which the security was provided, more than 12 months ago.

12. What steps Mr Farkas wishes to take in resisting the motion presently before the Court is entirely a matter for him. If, due to illness, or for any other reason, he requires assistance, he should obtain that assistance forthwith. There is no evidence before the Court that he is impecunious. If material is put on belatedly, in circumstances where the applicants are unable to respond, there is a risk that the Court will not act upon it. Mr Farkas does not seek to vacate the hearing date on 22 April on account of the likely state of his health at that time, but only on the basis that he seeks more time to prepare material, the relevance of which is presently obscure.

13. The parties should make no mistake about the role that this Court will play in the resolution of these proceedings. There will be no hearing before a judge of this Court dealing with consequential disputes about small amounts of money, by which I mean amounts involving less than $100,000. It follows that the Court will not be in a position to order, except by agreement, any amount payable by Mr Farkas pursuant to order (3) made on 10 March 2014, if persuaded that there is a real issue as to those amounts. (There is, presently, no material before the Court filed by the applicants which would support an order in those terms in any event.)

14. Despite the unsatisfactory procedure by which the issue has been raised, Mr Farkas will not be treated as in breach of the directions of the Court if he seeks to file material on or before 13 April 2015. The applicants will not be treated as in breach of the directions with respect to them if they file and serve material after 13 April 2015, but no later than 5pm on Monday, 20 April 2015. Whether any of the material will be considered by the court in disposing of the motion presently before it will be addressed at the hearing on 22 April 2015.

15. Beyond those indications of its intended approach, the Court makes no formal directions with respect to the request contained in Mr Farkas’ email of 23 March 2015.

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