Wu v Tang - [2013] FCA 927

FEDERAL COURT OF AUSTRALIA
Wu v Tang [2013] FCA 927

Citation: Wu v Tang [2013] FCA 927

Parties: XIAO PING WU, XIAOLIANG WU and PINSI CUI v JIAN XUN TANG

File number(s): NSD 1449 of 2013

Judge(s): BUCHANAN J

Date of judgment: 16 September 2013

Catchwords:
PRACTICE AND PROCEDURE – whether filing of notice of intention to appeal represented institution of proceedings

BANKRUPTCY – consideration of power in s 41(6A) of the Bankruptcy Act 1966 (Cth) to extend time to comply with a bankruptcy notice

Legislation: Bankruptcy Act 1966 (Cth), ss 40(1)(g), 41(6A), 41(6A)(a), 41(6A)(b), 41(6C), 52(2)(b)
Uniform Civil Procedure Rules 2005 (NSW), rr 51.6, 51.8, 51.9(3), 51.44

Cases cited: Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137
Dennis v Cranitch [2005] FMCA 168
Lord v Rankine [2010] FMCA 668
Tang v Wu [2013] NSWSC 583
Wren v Mahony (1972) 126 CLR 212

Date of hearing: 4 September 2013

Date of last submissions: 4 September 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 22

Applicants: The First Applicant appeared in person

Solicitor for the Respondent: Mr M Di Lizio, Di Lizio & Associates

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1449 of 2013

BETWEEN:
XIAO PING WU
First Applicant

XIAOLIANG WU
Second Applicant

PINSI CUI
Third Applicant

AND:
JIAN XUN TANG
Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

16 SEPTEMBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application filed on 27 August 2013 is dismissed with costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1449 of 2013

BETWEEN:
XIAO PING WU
First Applicant

XIAOLIANG WU
Second Applicant

PINSI CUI
Third Applicant

AND:
JIAN XUN TANG
Respondent

JUDGE:

BUCHANAN J

DATE:

16 SEPTEMBER 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 16 May 2013, judgment was entered for the present respondent in the Supreme Court of New South Wales, Equity Division in the sum of $208,827.00 (Tang v Wu [2013] NSWSC 583). The judgment reflected terms of settlement in earlier proceedings in the Supreme Court which were filed in those earlier proceedings on 4 July 2012. In the judgment given on 16 May 2013, Pembroke J dealt with an application to enforce the terms of settlement and decisively rejected arguments by the present applicants that the terms of settlement were obtained by fraud and deception.
On 17 June 2013, a bankruptcy notice was issued by the respondent for the amount of the judgment. The bankruptcy notice was served on 4 July 2013. A person upon whom a bankruptcy notice has been served has 21 days to comply with it unless, within that time, the person has applied to a court to set aside the bankruptcy notice or, in the case of a bankruptcy notice founded on a judgment debt, instituted a proceeding to set aside the judgment or order. In either event,…

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 Tang

Details

AGLC: Wu v Tang [2013] FCA 927
Case: [2013] FCA 927
Decision Date

CaseChat Overview and Summary

The case of Wu v Tang involved the applicants, Xiao Ping Wu, Xiaoliang Wu, and Pinsi Cui, seeking to have a bankruptcy notice set aside and to obtain an extension of time to comply with it. The respondents were Jian Xun Tang. The dispute was heard in the Federal Court of Australia. The applicants argued that they had instituted an appeal against a previous judgment and therefore sought an extension of time to comply with the bankruptcy notice. The primary issue for the court was whether the applicants had indeed instituted proceedings to set aside the judgment debt, as required under section 41(6A) of the Bankruptcy Act 1966 (Cth).

Buchanan J held that the applicants had not instituted proceedings to set aside the judgment debt as they had only filed a notice of intention to appeal, not a substantive notice of appeal with grounds. The court found that filing a notice of intention to appeal does not, in itself, constitute the institution of proceedings to set aside a judgment. The court also determined that no other grounds were available under section 41(6A)(b) of the Act that could justify extending the time for compliance with the bankruptcy notice. Therefore, the application for an extension of time was dismissed with costs.

The court's reasoning hinged on the interpretation of the Bankruptcy Act and the relevant rules of civil procedure, particularly the distinction between a notice of intention to appeal and a substantive notice of appeal. The court relied on previous case law that supported the view that a notice of intention to appeal does not start the clock for setting aside a judgment. Consequently, the application for review was dismissed, and the applicants were left to pursue their appeal in the Supreme Court.

Orders