Wang v Farkas (No 6) - [2015] NSWCA 116

Court of Appeal
Supreme Court

New South Wales

Case Name:	Wang v Farkas (No 6)
Medium Neutral Citation:	[2015] NSWCA 116
Hearing Date(s):	22 April 2015
Decision Date:	7 May 2015
Before:	Basten JA
Decision:	(1)Direct the Registrar to pay the sum paid into Court and any interest thereon (less commission) to the applicants Jian Wang and Y Ping Gu. (2)Order that Mr Farkas pay the applicants the costs of the motion filed by Mr Wang on 18 February 2015, limited to the filing fee. (3)Otherwise dismiss the motion of 18 February 2015. (4)Dismiss the motion filed by the respondent, George Farkas, on 1 April 2015. (5)Order that Mr Farkas pay any disbursements incurred by Mr Wang and Ms Gu with respect to that motion.
Catchwords:	PRACTICE AND PROCEDURE – proposed application for special leave to appeal – moneys ordered to be paid into court as security by respondents to proposed appeal – payment out on failure of purpose when no application made PRACTICE AND PROCEDURE – moneys paid into court on condition – condition in lieu of undertaking as to damages – failure of purpose – application to vary conditions – procedural unfairness when conditions set – factual premise challenged – delay in making application for variation
Legislation Cited:	Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Wang v Farkas [2014] NSWCA 29; 85 NSWLR 390 Wang v Farkas (No 2) [2014] NSWCA 57
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

[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

BASTEN JA: The principal judgment in these proceedings was delivered on 26 February 2014.[1] The effect of the judgment was to set aside costs orders made in favour of the respondent (Mr Farkas) in the Local Court and in the District Court, in proceedings in which he appeared in person.
[1] Wang v Farkas [2014] NSWCA 29; 85 NSWLR 390.
The proceedings in this Court were commenced by a summons seeking judicial review of the judgment in the District Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW). The moving parties were Mr Wang and Ms Gu (“the applicants”).

Background to current motions

Prior to the determination of those proceedings, and prior indeed to their commencement, Mr Farkas had obtained a writ or writs of levy, as judgment creditor in the District Court, against properties owned by the applicants. On 9 September 2013 the applicants obtained an order requiring Mr Farkas to remove the registration…

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 6)

Details

AGLC: Wang v Farkas (No 6) [2015] NSWCA 116
Case: [2015] NSWCA 116
Decision Date: 7 May 2015

CaseChat Overview and Summary

In *Wang v Farkas (No 6)*, the applicants, Jian Wang and Y Ping Gu, sought the payment out of moneys held in court, which had been paid by the respondents as security for a proposed appeal. The respondents, George Farkas and others, had paid these moneys into court as a condition of being granted leave to appeal, in lieu of an undertaking as to damages. The applicants argued that the purpose for which the moneys were paid into court had failed, and therefore, they should be released.

The central legal issues before the court were whether the moneys paid into court as security for a proposed appeal should be paid out to the applicants when the purpose for which they were paid had failed, and whether the conditions under which the moneys were paid into court were procedurally unfair or based on a flawed factual premise, justifying a variation of those conditions. The court also considered the delay in bringing an application to vary the conditions.

Basten JA reasoned that the purpose for which the moneys were paid into court had indeed failed, as the proposed appeal had not proceeded. The court found that the respondents had not made out a case for varying the original conditions under which the moneys were paid into court, particularly given the delay in seeking such a variation. Consequently, the court ordered the Registrar to pay the sum held in court, along with any accrued interest, to the applicants. The court also made orders regarding the costs of certain motions filed by the parties, largely dismissing the respondents' motions.

Orders

Orders of the court

(1)Direct the Registrar to pay the sum paid into Court and any interest thereon (less commission) to the applicants Jian Wang and Y Ping Gu.

(2)Order that Mr Farkas pay the applicants the costs of the motion filed by Mr Wang on 18 February 2015, limited to the filing fee.

(3)Otherwise dismiss the motion of 18 February 2015.

(4)Dismiss the motion filed by the respondent, George Farkas, on 1 April 2015.

(5)Order that Mr Farkas pay any disbursements incurred by Mr Wang and Ms Gu with respect to that motion.

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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