Xu v Jinhong Design & Constructions Pty Limited

This matter concerned an appeal from a judgment of Justice Johnson in the Supreme Court of New South Wales. The appellants, Xu and others, sought a stay of execution of the judgment and orders made on 10 June 2010, pending the determination of their appeal. They also sought orders regarding security for the costs of the appeal. The respondent was Jinhong Design & Constructions Pty Limited.

The primary legal issues before the Court were whether the appellants had established grounds for a stay of execution of the judgment and whether security for the costs of the appeal should be ordered. The Court was required to consider the circumstances of the case, including the nature of the appeal and the financial position of the appellants, to determine if a stay was warranted and what security, if any, should be provided.

McColl JA granted a stay of execution of the judgment and orders, conditional upon the appellants undertaking not to remove assets from Australia or deal with them in a way that diminishes their value, save for ordinary living and legal expenses and proper business dealings. The Court also ordered the appellants to provide $40,000 as security for the costs of the appeal within 21 days, with a direction that if security was not provided, the appeal would be stayed. Further orders were made for the release of existing security held for the Supreme Court proceedings to the respondent and for the appellants to provide specific second mortgages and charges over property as additional security. The appellants were ordered to pay the costs of the motions for the stay and security for costs.