Wu v Ling (No 4) - [2017] NSWCA 59

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wu v Ling (No 4) [2017] NSWCA 59
Hearing dates: 13 March 2017
Date of orders: 13 March 2017
Decision date: 29 March 2017
Before: Ward JA
Decision:
(1) Grant the application of the respondent for the stay ordered 23 December 2016 to be discharged.
(2) The appellant is to pay the costs of the motion filed 3 March 2017.

Catchwords: PROCEDURE – judgments and orders – enforcement of judgment and orders – where proceedings stayed pending High Court special leave application – where applicant for stay failed to file an application for special leave expeditiously – whether stay should be lifted – stay lifted.
Cases Cited: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; [1986] HCA 84
Paciocco v Australia and New Zealand Banking Group Ltd (2016) 333 ALR 569; [2016] HCA 28
Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1
Wu v Ling [2016] NSWCA 322
Wu v Ling (No 2) [2016] NSWCA 356
Wu v Ling (No 3) [2016] NSWCA 381
Category: Procedural and other rulings
Parties: Yan Wu (Appellant)
Albert Ling (Respondent and Cross Appellant)
Representation:
Counsel:
Yan Wu (in person)
P Tudehope (Respondent and Cross Appellant)
Solicitors:
Solomon Tudehope Solicitors (Respondent and Cross Appellant)

File Number(s): 2015/00374448
Publication restriction: Nil

Judgment

WARD JA: This is an application by notice of motion filed 3 March 2017 for a stay, which was ordered on 23 December 2016 in relation to part of a judgment debt, to be lifted. The background to the present dispute may be gleaned from the decision of this Court on 24 November 2016 in Wu v Ling [2016] NSWCA 322.
In that decision, this Court dismissed an appeal by the appellant (Ms Wu) from the decision of Button J in the Common Law Division of the Supreme Court and allowed a cross appeal by the respondent (Mr Ling). Judgment was entered for Mr Ling for the principal amount of the debt and contractual interest on all loans up to 24 November 2016. The Court ordered that the parties were to agree on the calculation of the amount to be entered as judgment for Mr Ling and provide that calculation in a short minute of order delivered to the chambers of the presiding judge by 9 December 2016, and that the relevant order be made in chambers. Judgment was subsequently entered in this Court on 14 December 2016 in the amount of $3,086,424.71 (Wu v Ling (No 2) [2016] NSWCA 356).
Ms Wu then made an application for a stay of that judgment. That application was heard in this Court on 22 December 2016 (Wu v Ling (No 3) [2016] NSWCA 381). A stay was granted only 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…

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 4)

Details

AGLC: Wu v Ling (No 4) [2017] NSWCA 59
Case: [2017] NSWCA 59
Decision Date: 29 March 2017

CaseChat Overview and Summary

The Supreme Court of New South Wales, Court of Appeal, considered an application by the respondent to discharge a stay of proceedings previously ordered on 23 December 2016. The stay had been granted pending an application for special leave to appeal to the High Court. The applicant, who had sought the original stay, had failed to prosecute their application for special leave expeditiously.

The central legal issue before the Court of Appeal was whether the stay of proceedings should be lifted due to the applicant's failure to diligently pursue their special leave application. This involved an assessment of whether the conditions upon which the stay was granted had been met or, alternatively, whether the applicant's conduct warranted the discharge of the stay.

Ward JA reasoned that the purpose of a stay pending a special leave application is to preserve the status quo for a limited period to allow the applicant to pursue their High Court challenge. Where an applicant fails to act with reasonable expedition in filing and prosecuting such an application, they are not entitled to the continued benefit of the stay. The Court applied the principle that a party seeking to maintain a stay must demonstrate a commitment to pursuing the underlying application with due diligence.

The Court ordered that the application of the respondent for the discharge of the stay be granted, and that the appellant pay the costs of the motion filed on 3 March 2017.

Orders

Orders of the court

(1) Grant the application of the respondent for the stay ordered 23 December 2016 to be discharged.

(2) The appellant is to pay the costs of the motion filed 3 March 2017.

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 4) [2017] NSWCA 59
Hearing dates:	13 March 2017
Date of orders:	13 March 2017
Decision date:	29 March 2017
Before:	Ward JA
Decision:	(1) Grant the application of the respondent for the stay ordered 23 December 2016 to be discharged. (2) The appellant is to pay the costs of the motion filed 3 March 2017.
Catchwords:	PROCEDURE – judgments and orders – enforcement of judgment and orders – where proceedings stayed pending High Court special leave application – where applicant for stay failed to file an application for special leave expeditiously – whether stay should be lifted – stay lifted.
Cases Cited:	Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; [1986] HCA 84 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 333 ALR 569; [2016] HCA 28 Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 Wu v Ling [2016] NSWCA 322 Wu v Ling (No 2) [2016] NSWCA 356 Wu v Ling (No 3) [2016] NSWCA 381
Category:	Procedural and other rulings
Parties:	Yan Wu (Appellant) Albert Ling (Respondent and Cross Appellant)
Representation:	Counsel: Yan Wu (in person) P Tudehope (Respondent and Cross Appellant) Solicitors: Solomon Tudehope Solicitors (Respondent and Cross Appellant)
File Number(s):	2015/00374448
Publication restriction:	Nil