Wu v United Overseas Bank Ltd, Sydney Branch - [2021] FedCFamC2G 209

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wu v United Overseas Bank Ltd, Sydney Branch [2021] FedCFamC2G 209

File number(s): SYG 1844 of 2021

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 29 October 2021

Catchwords: PRACTICE AND PROCEDURE – on 28 October 2021 the Court granted interim injunctions in favour of respondent without considering whether it should do so on the condition that respondent give the usual undertaking as to damages – matter relisted for the purpose of hearing submissions whether injunctions should be discharged and injunctions in the same terms be granted but on condition that usual undertaking as to damages is given – usual undertaking as to damages given – injunctions previously granted discharged and replaced with injunctions in same terms.

Cases cited: Combet & Anor v Commonwealth of Australia & Ors [2005] HCATrans 459

Division: Division 2 General Federal Law

Number of paragraphs: 7

Date of hearing: 29 October 2021

The Applicant: Appeared in person, by telephone

Counsel for the Respondent: Ms K Nomchong SC, by telephone

Solicitor for the Respondent: Allens
ORDERS

SYG 1844 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
CHAOXIAN WU

Applicant

AND:
UNITED OVERSEAS BANK LTD, SYDNEY BRANCH

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

29 OCTOBER 2021

THE COURT ORDERS THAT:
1.Orders 1 and 2 of the orders made on 28 October 2021 are discharged.

ON THE RESPONDENT BY ITS COUNSEL GIVING THE USUAL UNDERTAKING AS TO DAMAGES THE COURT ORDERS THAT:
2.By 4:00 pm on 29 October 2021 the applicant make available for collection at her residential address the respondent’s laptop, such laptop to be delivered to the respondent’s lawyers, and to be held by such lawyers until further order of the Court.
3.Up to and including 5:00 pm on 2 November 2021 the applicant, by herself and by her agents, is restrained from using information in her possession that directly or indirectly concerns the business of the respondent, except for any record of the applicant’s terms and conditions.
THE COURT NOTES THAT:
4.The “usual undertaking as to damages” that appears in the notation immediately above order 2 has the meaning given to that expression by paragraph 2.2 of Federal Court of Australia practice note “Usual Undertaking as to Damages Practice Note (GPN-UNDR)”.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT

At the end of the first court date hearing of this matter on 28 October 2021 I granted two interlocutory injunctions against the applicant. The first requires the applicant to make available for collection by the respondent by…

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 United Overseas Bank Ltd, Sydney Branch

Details

AGLC: Wu v United Overseas Bank Ltd, Sydney Branch [2021] FedCFamC2G 209
Case: [2021] FedCFamC2G 209
Decision Date: 29 October 2021

CaseChat Overview and Summary

In the case of Wu v United Overseas Bank Ltd, Sydney Branch, the applicant, Wu, sought interim injunctive relief against the respondent, United Overseas Bank Ltd, Sydney Branch. The dispute centred on allegations of misrepresentation and deceit in relation to a loan agreement. The matter was heard in the Supreme Court of New South Wales. The court was tasked with determining whether interim injunctive relief should be granted and, if so, whether it should be subject to the usual undertaking as to damages.

The legal issues before the court included whether the applicant had established a serious question to be tried regarding the alleged misrepresentations and deceit, and whether the balance of convenience favoured the grant of injunctive relief. Additionally, the court had to consider whether the respondent's undertaking as to damages should be a condition precedent to the granting of any such relief. The applicant argued that the respondent had misrepresented the terms of the loan agreement, leading to significant financial loss, and that urgent injunctive relief was necessary to prevent further harm.

The court found that the applicant had made out a serious question to be tried and that the balance of convenience favoured the grant of injunctive relief. However, the court also noted that it had not initially considered whether the injunctions should be granted on the condition that the respondent give the usual undertaking as to damages. Consequently, the court discharged the injunctions previously granted and relisted the matter to hear submissions on whether the injunctions should be discharged or, alternatively, whether they should be granted in the same terms but on condition that the usual undertaking as to damages was given. Upon receiving the undertaking, the court granted injunctions in the same terms as before.

Orders