Wu v Ling (No 5)

[2017] NSWCA 125

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Wu v Ling (No 5) [2017] NSWCA 125
Hearing dates:	29 May 2017
Date of orders:	05 June 2017
Decision date:	05 June 2017
Before:	Macfarlan JA
Decision:	Notice of motion dismissed with costs
Catchwords:	PRACTICE AND PROCEDURE – stay of judgment sought pending application for special leave to appeal to the High Court – applicant did not file and prosecute the special leave application as contemplated by the terms of a previous stay – notice of motion dismissed
Legislation Cited:	Real Property Act 1900 (NSW), s 57(2)(b)
Cases Cited:	Ling v Pan Pac Investment Pty Limited; Ling v Wu [2015] NSWSC 850 Wu v Ling [2016] NSWCA 322 Wu v Ling (No 2) [2016] NSWCA 356 Wu v Ling (No 3) [2016] NSWCA 381 Wu v Ling (No 4) [2017] NSWCA 59
Category:	Procedural and other rulings
Parties:	Yan Wu (First Applicant) Pan Pac Investments Pty Ltd (Second Applicant) Albert Ling (Respondent)
Representation:	Counsel: B Connell (Applicants) W Muddle SC (Respondent)   Solicitors: PMF Legal (Applicant) Solomon Tudehope (Respondent)
File Number(s):	CA 2015/374448

Judgment

1. HIS HONOUR: This is an application by Ms Wu for a stay of a judgment for $3,086,424.71 given against her by this Court on 14 December 2016 (Wu v Ling (No 2) [2016] NSWCA 356). The nature of the proceedings is described in the Court’s earlier judgment of 24 November 2016 (Wu v Ling [2016] NSWCA 322).

2. On 23 December 2016 I granted a stay of the judgment, to the extent of $1,824,800.58, pending the determination of a proposed application by Ms Wu for special leave to appeal to the High Court and, if special leave is granted, until the determination of her appeal. The balance of the judgment, being $1,261,624.13, remained enforceable as Ms Wu accepted that she is liable for that amount in any event. I granted liberty to Mr Ling to apply to vacate the stay order in the event that Ms Wu did not expeditiously file and prosecute an application for special leave to appeal (Wu v Ling (No 3) [2016] NSWCA 381).

3. As Ms Wu did not file a special leave application, Mr Ling filed a notice of motion on 3 March 2017 seeking discharge of the stay order.

4. By judgment of 29 March 2017 Ward JA discharged the stay (Wu v Ling (No 4) [2017] NSWCA 59). Her Honour was not satisfied that Ms Wu had proceeded expeditiously as contemplated by my orders.

5. On 12 April 2017 Ms Wu filed the notice of motion that is now before me. It seeks a stay of this Court’s 14 December 2016 judgment against her, pending the determination of an application for special leave to appeal to the High Court that she filed on 23 May 2017. She requires an order of the High Court extending the time for her to file that application as it was filed out of time. In oral argument before me, Ms Wu’s counsel indicated that the stay she now seeks is one in the same terms that I granted on 23 December 2016, and that Ms Wu does not seek a stay of the whole amount of the judgment.

6. In her Notice of Motion, Ms Wu also seeks an order preventing Mr Ling proceeding with notices given to Ms Wu under s 57(2)(b) of the Real Property Act 1900 (NSW). These notices indicate that Mr Ling has, understandably, taken some steps towards enforcement of the judgment against Ms Wu. Joining Ms Wu as an applicant in her notice of motion is Pan Pac Investments Pty Ltd, presumably on the basis that it has some interest in one of the properties that is the subject of the s 57 notices.

7. In support of the motion, Ms Wu filed a lengthy affidavit purporting to explain her lack of diligence in filing the High Court special leave application that she informed me in December she wished to file. Essentially she says that there was “a breakdown of communication” with her then solicitors. Yet her efforts to find and engage new solicitors can at best be described as dilatory. It was not until 6 April 2017 that her present solicitors commenced to act in place of those acting earlier, with the High Court application being filed on 23 May 2017.

8. In her affidavit Ms Wu also gives a lengthy description of the other calls on her time which rendered it difficult for her to direct her attention to the court proceedings against Mr Ling.

9. In my view, Ms Wu’s explanations are unsatisfactory and certainly insufficient for her to be given, for the second time, a stay in the terms that I granted in December. In assessing the adequacy of her explanations, I have taken into account the following findings that the primary judge made about her (Ling v Pan Pac Investment Pty Limited; Ling v Wu [2015] NSWSC 850 at [64]):

“There can be no doubt that Ms Wu is a highly experienced businesswoman who has found significant success in the aged care industry. She has also built up a property portfolio that is impressive indeed. I assessed her in the witness box as having a forceful and determined character.”

10. For these reasons, I order that the notice of motion of Ms Wu and Pan Pac Investments Pty Ltd filed on 12 April 2017 be dismissed with costs.

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Amendments

05 June 2017 - 5/06/2017 Citation amended in [9].

Decision last updated: 05 June 2017