Zhu v Wang - [2021] NSWCA 265

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zhu v Wang [2021] NSWCA 265
Hearing dates: 25 October 2021
Date of orders: 29 October 2021
Decision date: 29 October 2021
Before: Gleeson JA
Decision:
(1) Notice of motion filed 14 October 2021 be dismissed.
(2) The applicants to pay the respondents’ costs of the motion.

Catchwords:
CIVIL PROCEDURE – stay of orders – application for stay pending application for special leave to appeal to High Court – where no application yet filed in High Court – where no evident prospects of success of obtaining special leave under Judiciary Act 1903 (Cth), s 35A – where no offer by applicants to pay any part of judgments into court as a condition of a stay – whether applicant had accrued right to fee which could be set-off against judgment debts – whether orders should be stayed – whether exceptional circumstances established for grant of stay

Legislation Cited:
Australian Consumer Law (NSW), ss 18 and 20
Judiciary Act 1903 (Cth), s 35A

Cases Cited:
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383
Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1

Category: Principal judgment
Parties: Lucy Xiaoping Zhu (First applicant)
Sydney Furnishing Pty Ltd (Second applicant)
De Rucci Bundall Pty Ltd (Third applicant)
Bing Kun Wang (First respondent)
De Rucci International Pty Ltd t/as De Rucci (Second respondent)
Representation:
Counsel:
Ms L Zhu (Self-represented) (Applicants)
Mr G Gee (Respondents)
Solicitors:
Ms L Zhu (Self-represented) (Applicants)
Auyeung Hencent & Day Lawyers (Respondents)

File Number(s): 2020/369381
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2020] NSWSC 1720

Date of Decision:

2 December 2020

Before:

Rothman J

File Number(s):

2019/293452

Judgment

GLEESON JA: Application is made by Ms Lucy Zhu, Sydney Furnishing Pty Ltd (formerly known as HQ Living Pty Ltd), and De Rucci Bundall Pty Ltd (together the applicants) for a stay of orders 2 and 4 made by the Court of Appeal on 7 October 2021 when allowing in part an appeal from the decision of Rothman J on 2 December 2020: Zhu v Wang [2021] NSWCA 240.
Order 2 was in the following terms:

Set aside order 6 (the order for a stay made by Payne JA on 16 July 2021).

By order 4(a), this Court ordered the second applicant to pay to the second respondent the sum of $30,789. By order 4(b), this Court ordered the first and second applicants to pay to the second respondent the sum of $107,317.90. The second respondent is De Rucci International Pty Ltd (De Rucci International).
The applicants also seek a stay on the payment of costs orders “to be made” by this Court after a hearing on the papers, and a stay of the costs order made by Rothman J in the proceedings below…

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 Zhu v Wang

Details

AGLC: Zhu v Wang [2021] NSWCA 265
Case: [2021] NSWCA 265
Decision Date: 29 October 2021

CaseChat Overview and Summary

In *Zhu v Wang*, the applicants sought a stay of orders made by the primary judge pending an application for special leave to appeal to the High Court. The respondents sought to enforce the judgment debts.

The primary legal issues before the Court of Appeal were whether the applicants had established exceptional circumstances warranting a stay of the orders, particularly given that no application for special leave to appeal had yet been filed in the High Court and there were no evident prospects of success under section 35A of the *Judiciary Act 1903* (Cth). The court also considered whether an accrued right to a fee, which the applicants sought to set-off against the judgment debts, could be established, and whether any stay should be conditional on the applicants offering to pay part of the judgment debts into court.

Gleeson JA dismissed the application for a stay, finding that the applicants had failed to demonstrate exceptional circumstances. The court noted the absence of a filed application for special leave and the lack of evident prospects of success. Furthermore, the applicants had not offered to pay any part of the judgment debts into court, which would have been a significant factor in considering a stay. The court also found that the applicants had not established an accrued right to a fee that could be set-off against the judgment debts.

Consequently, the notice of motion filed on 14 October 2021 was dismissed, and the applicants were ordered to pay the respondents’ costs of the motion.

Orders

Orders of the court

(1) Notice of motion filed 14 October 2021 be dismissed.

(2) The applicants to pay the respondents’ costs of the motion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Zhu v Wang [2021] NSWCA 265
Hearing dates:	25 October 2021
Date of orders:	29 October 2021
Decision date:	29 October 2021
Before:	Gleeson JA
Decision:	(1) Notice of motion filed 14 October 2021 be dismissed. (2) The applicants to pay the respondents’ costs of the motion.
Catchwords:	CIVIL PROCEDURE – stay of orders – application for stay pending application for special leave to appeal to High Court – where no application yet filed in High Court – where no evident prospects of success of obtaining special leave under Judiciary Act 1903 (Cth), s 35A – where no offer by applicants to pay any part of judgments into court as a condition of a stay – whether applicant had accrued right to fee which could be set-off against judgment debts – whether orders should be stayed – whether exceptional circumstances established for grant of stay
Legislation Cited:	Australian Consumer Law (NSW), ss 18 and 20 Judiciary Act 1903 (Cth), s 35A
Cases Cited:	Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1
Category:	Principal judgment
Parties:	Lucy Xiaoping Zhu (First applicant) Sydney Furnishing Pty Ltd (Second applicant) De Rucci Bundall Pty Ltd (Third applicant) Bing Kun Wang (First respondent) De Rucci International Pty Ltd t/as De Rucci (Second respondent)
Representation:	Counsel: Ms L Zhu (Self-represented) (Applicants) Mr G Gee (Respondents) Solicitors: Ms L Zhu (Self-represented) (Applicants) Auyeung Hencent & Day Lawyers (Respondents)
File Number(s):	2020/369381
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2020] NSWSC 1720 Date of Decision: 2 December 2020 Before: Rothman J File Number(s): 2019/293452