Wu v Ling (No 3) - [2016] NSWCA 381

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wu v Ling (No 3) [2016] NSWCA 381
Hearing dates: 22 December 2016
Date of orders: 23 December 2016
Decision date: 23 December 2016
Before: Macfarlan JA
Decision:
(1)   That the judgment entered in this Court on 14 December 2016 is stayed to the extent of $1,824,800.58 until the hearing and determination of any application by Ms Wu for special leave to appeal to the High Court of Australia, and if special leave is granted, until the hearing and determination of her appeal.

(2)   For the avoidance of doubt I note that the balance of the judgment, that is $1,261,624.13, remains enforceable.

(3)   Grant liberty to Mr Ling to apply to this Court on three days’ notice to vacate order (1) in the event that Ms Wu fails expeditiously to file an application for special leave to appeal to the High Court, to prosecute that application or to prosecute an appeal in the event that special leave to appeal is granted.

(4)   Order that the costs of the application for a stay be payable in the same way that the costs of Ms Wu’s special leave application become payable.
(5)   If order (1) above is vacated due to a failure of Ms Wu to file, or Ms Wu delaying in filing, an application for special leave, Ms Wu must pay the costs of the stay application.
Catchwords: APPEAL – stay of proceedings pending High Court special leave application – principles to be applied – equitable jurisdiction to intervene in relation to unconscionable bargains – partial stay granted
Cases Cited: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
Rhinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1
Category: Procedural and other rulings
Parties: Yan Wu (Applicant)
Albert Ling (Respondent)
Representation:
Counsel:
Self-represented Applicant
Mr A J Tudehope (Respondent)
Solicitors:
Self-represented Applicant
Solomon Tudehope (Respondent)

File Number(s): CA 2015/374448

Judgment

HIS HONOUR: This is an application by Ms Yan Wu, who is unrepresented, for a stay of the orders made by this Court on 14 December 2016 in consequence of its judgments of that date and of 24 November 2016 ([2016] NSWCA 356 and 322 respectively). The principal order provided for the entry of judgment against Ms Wu and in favour of Mr Albert Ling, the respondent, in the amount of $3,086,424.71. The stay is sought whilst Ms Wu seeks special leave to appeal to the High Court and, if leave is granted, pursues an appeal to that Court.
The decision of this Court in Rhinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 established that the principles to be applied on an application such as the present are those stated by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681. In that case, Brennan J said that a stay to preserve the subject-matter of litigation pending an application for special leave…

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 Wu v Ling (No 3)

Details

AGLC: Wu v Ling (No 3) [2016] NSWCA 381
Case: [2016] NSWCA 381
Decision Date: 23 December 2016

CaseChat Overview and Summary

In *Wu v Ling (No 3)*, Ms Wu sought a stay of a judgment entered against her in the Court of Appeal of New South Wales, pending an application for special leave to appeal to the High Court of Australia. The dispute concerned a judgment for a total sum of $3,086,424.71.

The primary legal issue before the Court of Appeal was whether it possessed the equitable jurisdiction to grant a stay of its own judgment, and if so, on what principles such a stay should be granted, particularly in circumstances where the applicant intended to seek special leave to appeal to the High Court. The court also considered the equitable jurisdiction to intervene in relation to unconscionable bargains, though this appears to be a background consideration rather than the central issue for the stay application itself.

Macfarlan JA applied the principles governing applications for a stay of proceedings pending an application for special leave to appeal to the High Court. His Honour considered the prospects of success on appeal and the balance of convenience. The court determined that a partial stay was warranted, acknowledging the applicant's intention to seek High Court review and the potential for significant prejudice if the judgment were fully enforced and later overturned.

Consequently, the Court of Appeal ordered that the judgment be stayed to the extent of $1,824,800.58 until the determination of Ms Wu's special leave application and any subsequent appeal to the High Court. The remaining portion of the judgment, $1,261,624.13, was to remain enforceable. Liberty was granted to Mr Ling to apply to vacate the stay if Ms Wu failed to expeditiously pursue her High Court application. The costs of the stay application were ordered to follow the costs of the special leave application, with a provision for Ms Wu to pay the costs of the stay application if the stay was vacated due to her failure to prosecute the High Court proceedings.

Orders

Orders of the court

(1) That the judgment entered in this Court on 14 December 2016 is stayed to the extent of $1,824,800.58 until the hearing and determination of any application by Ms Wu for special leave to appeal to the High Court of Australia, and if special leave is granted, until the hearing and determination of her appeal.

(2) For the avoidance of doubt I note that the balance of the judgment, that is $1,261,624.13, remains enforceable.

(3) Grant liberty to Mr Ling to apply to this Court on three days’ notice to vacate order (1) in the event that Ms Wu fails expeditiously to file an application for special leave to appeal to the High Court, to prosecute that application or to prosecute an appeal in the event that special leave to appeal is granted.

(4) Order that the costs of the application for a stay be payable in the same way that the costs of Ms Wu’s special leave application become payable.

(5) If order (1) above is vacated due to a failure of Ms Wu to file, or Ms Wu delaying in filing, an application for special leave, Ms Wu must pay the costs of the stay application.

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:	Wu v Ling (No 3) [2016] NSWCA 381
Hearing dates:	22 December 2016
Date of orders:	23 December 2016
Decision date:	23 December 2016
Before:	Macfarlan JA
Decision:	(1) That the judgment entered in this Court on 14 December 2016 is stayed to the extent of $1,824,800.58 until the hearing and determination of any application by Ms Wu for special leave to appeal to the High Court of Australia, and if special leave is granted, until the hearing and determination of her appeal. (2) For the avoidance of doubt I note that the balance of the judgment, that is $1,261,624.13, remains enforceable. (3) Grant liberty to Mr Ling to apply to this Court on three days’ notice to vacate order (1) in the event that Ms Wu fails expeditiously to file an application for special leave to appeal to the High Court, to prosecute that application or to prosecute an appeal in the event that special leave to appeal is granted. (4) Order that the costs of the application for a stay be payable in the same way that the costs of Ms Wu’s special leave application become payable. (5) If order (1) above is vacated due to a failure of Ms Wu to file, or Ms Wu delaying in filing, an application for special leave, Ms Wu must pay the costs of the stay application.
Catchwords:	APPEAL – stay of proceedings pending High Court special leave application – principles to be applied – equitable jurisdiction to intervene in relation to unconscionable bargains – partial stay granted
Cases Cited:	Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 Rhinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1
Category:	Procedural and other rulings
Parties:	Yan Wu (Applicant) Albert Ling (Respondent)
Representation:	Counsel: Self-represented Applicant Mr A J Tudehope (Respondent) Solicitors: Self-represented Applicant Solomon Tudehope (Respondent)
File Number(s):	CA 2015/374448