Ye v Zeng (No 2) - [2015] FCA 1243

FEDERAL COURT OF AUSTRALIA
Ye v Zeng (No 2) [2015] FCA 1243

Citation: Ye v Zeng (No 2) [2015] FCA 1243

Parties: JOHNSON YE v ZENG RONGHUO ALSO KNOWN AS ANDREW TSANG, CHUNXIANG ZENG, QINGLONG ZENG, RONGXING ZENG, FUJIAN XIANGRONG CONSTRUCTION GROUP CO LTD and FUJIAN XIANGRONG DAQINSHAN TEA INDUSTRY DEVELOPMENT CO LTD

File number(s): NSD 1123 of 2015

Judge(s): ALLSOP CJ

Date of judgment: 13 November 2015

Legislation: Arbitration Law of the People’s Republic of China (promulgated by Order No. 31 of the President of the People's Republic of China on August 31, 1994)
New York Convention 1958

Cases cited: Ye v Zeng [2015] FCA 1192

Date of hearing: 13 November 2015

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 17

Counsel for the Applicant: Mr P E King

Solicitor for the Applicant: Zhang Shijing Lawyers

Counsel for the Respondents: Mr T Lynch

Solicitor for the Respondents: K L International Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1123 of 2015

BETWEEN:
JOHNSON YE
Applicant

AND:
ZENG RONGHUO ALSO KNOWN AS ANDREW TSANG
First Respondent

CHUNXIANG ZENG
Second Respondent

QINGLONG ZENG
Third Respondent

RONGXING ZENG
Fourth Respondent

FUJIAN XIANGRONG CONSTRUCTION GROUP CO LTD
Fifth Respondent

FUJIAN XIANGRONG DAQINSHAN TEA INDUSTRY DEVELOPMENT CO LTD
Sixth Respondent

JUDGE:

ALLSOP CJ

DATE OF ORDER:

13 NOVEMBER 2015

WHERE MADE:

SYDNEY

ON THE APPLICANT, BY HIS COUNSEL, GIVING THE USUAL UNDERTAKING AS TO DAMAGES, THE COURT ORDERS THAT, UNTIL FURTHER ORDER:
1.Each of the first to sixth respondents not sell, encumber, or otherwise deal, in any way whatsoever, including by the obtaining of additional funding under any relevant facility, other than by the accrual of interest in the ordinary course of business, with any of the following properties:
(a)3/507 Pacific Highway, Killara (Folio #3/SP86801);
(b)36/507 Pacific Highway, Killara (Folio #36/SP86801);
(c)39 Stanhope Road, Killara (Folio #1/551876);
(d)39A Stanhope Road, Killara (Folio #2/551876);
(e)109 Pitt St, Sydney (Folio #99/SP72095 & #100/SP72095);
(f)73 and 74 Belssel St, Belconnen, ACT;
(g)such interest of any kind as each may have in the Xiang Rong Management Trust or any other trust or legal structure or entity over 7 Help St, Chatswood; and
(h)such interest of any kind as each may have in the property at 7 Help St, Chatswood.

2.Stand over proceedings for judgment on Tuesday 17 November 2015 at 2:15pm.
3.Should the respondents, or any one of them, proffer any payment into court or other secure repository before 4:00pm Monday 16 November 2015, the parties are to communicate such to the chambers of the Chief Justice and, if there be any application for the court to consider the proffered payment, such must be enunciated in writing by the respondents and filed and served by 10:00am Tuesday 17 November 2015. In such circumstances the court will inform the parties by 12:00pm as to whether it will receive argument at 2:15pm as to the form of orders to be made.
4.Costs reserved.

Note: Entry of orders is dealt with…

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 Ye v Zeng (No 2)

Details

AGLC: Ye v Zeng (No 2) [2015] FCA 1243
Case: [2015] FCA 1243
Decision Date: 13 November 2015

CaseChat Overview and Summary

The case of Ye v Zeng (No 2) involved Johnson Ye, the applicant, seeking recognition and enforcement of an arbitral award against Zeng Ronghuo and several other respondents. The matter was heard in the Federal Court of Australia by Allsop CJ. The primary issue before the court was whether the arbitral award could be enforced in Australia against the respondents’ assets, particularly considering the ongoing appeal in China. Additionally, the court had to decide on the appropriate measures to protect the applicant's interests while considering the potential injustice to the respondents.

The court examined the asset positions of the respondents, both in China and Australia, to determine if sufficient assets were available to enforce the award. The respondents had provided some details about their Australian assets, but these were deemed insufficient to cover the full amount of the award. The court also considered the appeal against the arbitral award in China and noted that China is a signatory to the New York Convention 1958. However, the appeal in China did not appear to have a strong basis for success, and the court concluded that steps should be taken to protect the applicant's rights.

In light of the above, the court varied the existing orders to prevent the respondents from dealing with certain specified properties until further order. The court also set a timeline for any potential payment into court by the respondents and reserved costs for further consideration. The court recognised the delicate balance between protecting the applicant's rights and preventing undue hardship on the respondents, particularly in light of the appeal in China.

The court's decision was aimed at safeguarding the applicant's interest while allowing for a fair assessment of the respondents' ability to meet the award. The court ordered that judgment be stood over and directed the parties to communicate any proposed payment into court by a specified deadline, with further consideration given to the form of orders to be made based on such payment. Costs were reserved for further determination, acknowledging the significant costs incurred in the proceedings.

Orders