Wu v Ling (No 2)

[2016] NSWCA 356

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Wu v Ling (No 2) [2016] NSWCA 356
Hearing dates:	On the papers
Date of orders:	14 December 2016
Decision date:	14 December 2016
Before:	Leeming JA Payne JA Bergin CJ in Eq
Decision:	Judgment is entered for the cross-appellant in the amount of $3,086,424.71
Catchwords:	FINAL ORDERS – where parties required to agree on the calculation of the amount to be entered as judgment for the cross-appellant – where cross-appellant provided calculations to solicitors for cross respondent – where cross-respondent represented by solicitors on the record – where cross-respondent’s solicitors advise that they did not have “any instructions to permit” a response – where cross-respondent personally files Notice of Motion for orders – whether judgment should be entered in the circumstances
Cases Cited:	Wu v Ling [2016] NSWCA 322
Category:	Consequential orders (other than Costs)
Parties:	Yan Wu (Appellant/Cross-Respondent) Albert Ling (Respondent/Cross-Appellant)
Representation:	Solicitors: Breene and Breene (Appellant/Cross-Respondent) Solomon Tudehope (Respondent/Cross-Appellant)
File Number(s):	2015/374448
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2015] NSWSC 850 [2015] NSWSC 1550 Date of Decision: 30 June 2015 Before: Button J File Number(s): 2012/292029; 2013/224583

Judgment

1. THE COURT: Judgment in this matter was delivered on 24 November 2016: Wu v Ling [2016] NSWCA 322 (the Judgment). The same nomenclature used in the Judgment is adopted in these short reasons.

2. Orders were entered on 24 November 2016 dismissing the appeal, allowing the cross-appeal and setting aside the orders made in the Court below on 25 November 2015. An order was also made that the appellant pay the respondent’s costs of the appeal, the cross-appeal and the proceedings below. The orders included the following:

(4)   Judgment will be entered for the cross-appellant for the principal amount and contractual interest on all loans up to 24 November 2016.

(5)   The parties are to agree on the calculation of the amount to be entered as judgment for the cross-appellant and provide that calculation in a Short Minute of Order delivered to the Chambers of the presiding judge by 9 December 2016. That order will be made in Chambers.

3. The respondent is represented by Solomon Tudehope Solicitors. The appellant is and was represented by solicitors, Breene and Breene, at all relevant times during the appeal, at the time of the Judgment and presently.

4. On 2 December 2016 Solomon Tudehope retained Benbow & Pike, Chartered Accountants, to calculate the judgment amount. On 6 December 2016 Benbow & Pike provided that calculation. The total amount of interest is $2,678,070.35. Benbow & Pike then took into account the repayments made by the appellant of $261,645.64, leaving a balance of $2,416,424.71. The principal amount of $670,000 plus interest of $2,416,424.71 makes a total amount of $3,086,424.71.

5. Solomon Tudehope forwarded Benbow & Pike’s report and calculation to Breene and Breene on 6 December 2016. They included a draft form of order for submission to the presiding judge that provided for entry of judgment for the respondent for $3,086,424.71.

6. On 8 December 2016 Solomon Tudehope wrote again to Breene and Breene noting that their telephone call that morning had not been returned and that there had been no response to their communication of 6 December 2016. They advised that if they had not heard from Breene and Breene by 2.00pm on 9 December 2016, they would submit the order and the supporting affidavit to the presiding judge’s Chambers, requesting the entry of judgment accordingly.

7. On 8 December 2016 at 4.45pm a principal of Breene and Breene wrote to Solomon Tudehope advising “I don’t have any instructions to permit me to respond to your letter”. By this time the appellant had personally filed a Notice of Motion in the Registry of the Court of Appeal seeking the following orders:

1.   Decision made from Court of Appeal (no: 1-6) on 24th November 2016 to be on hold.

2.   No further procedural requirement need to be executed in Court of Appeal.

8. In support of that Notice of Motion the appellant affirmed an affidavit on 5 December 2016 indicating that she wishes to appeal to the High Court, and requesting that the decision of the Court of Appeal be “on hold” and that there be “no further completing the formality of all the orders”.

9. That Notice of Motion was made returnable on 30 January 2017.

10. It is not clear whether the respondent’s solicitors have yet been served with the Notice of Motion filed by the appellant. In all the circumstances, it is appropriate to enter judgment in accordance with the calculation provided; to stay the enforcement of the Judgment until 22 December 2016; and to list the Notice of Motion filed on 8 December 2016 before the Vacation Judge at 10.15am on 22 December 2016.

Orders

11. The following orders are made:

(1)   Judgment is entered for the cross-appellant in the amount of $3,086,424.71.

(2)   The enforcement of the Judgment is stayed until 5.00 pm on 22 December 2016.

(3)   The Notice of Motion filed by the appellant on 8 December 2016 is listed before the Vacation Judge at 10.15am on 22 December 2016.

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Amendments

14 December 2016 - Order added.