Zhu v Wang - [2021] NSWCA 149

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zhu v Wang [2021] NSWCA 149
Hearing dates: 12, 16 July 2021
Date of orders: 16 July 2021
Decision date: 16 July 2021
Before: Payne JA
Decision:
See para [1]

Catchwords:
APPEALS – procedure – stay pending appeal

Cases Cited:
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
De Rucci International Pty Ltd v Zhu [2020] NSWSC 1720
De Rucci International Pty Ltd v Zhu [2020] NSWSC 1927
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383

Category: Procedural rulings
Parties: Lucy Zhu (First Appellant)
HQ Living Pty Ltd (Second Appellant)
De Rucci Bundall Pty Ltd (Third Appellant)
HQ Living (Moore Park) Pty Ltd (Fourth Appellant)
HQ Bedding Pty Ltd (Fifth Appellant)
Bing Kun Wang (First Respondent)
De Rucci International Pty Ltd (Second Respondent)
Representation:
Counsel:
Ms L Zhu (self-represented, Second to Fifth Appellants)
Mr G Gee (Respondents)
Solicitors:
Self-represented (Appellants)
Auyeung Hencent & Day Lawyers (Respondents)

File Number(s): 2020/369381
Publication restriction: None
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 1720

Date of Decision:

02 December 2020

Before:

Rothman J

File Number(s):

2019/293452

Judgment

PAYNE JA: On 16 July 2021, I made the following orders:

1.   Vacate the listing of the appeal on 6 October 2021 and in lieu thereof list the appeal for hearing on Thursday 26 August 2021 with a 1 day estimate.
2.   The respondents to file and serve written submissions of no more than 20 pages by 4pm on 6 August 2021 together with any application to rely on a notice of contention filed out of time. The respondents’ written submissions should address the question of whether leave should be granted to rely on the notice of contention.
3.   The appellants to file and serve written submissions in reply of no more than 10 pages by 4pm on 20 August 2021.
4.   Dispense with orders requiring the appellants to file red, orange, black and blue books and in lieu thereof order that by 4pm on 20 August 2021 the appellants file 4 copies of white folders containing the judgment below, relevant affidavits, relevant transcripts, relevant documents, the written submissions below and the written submissions in this Court. Each folder is to be consecutively paginated.
5.   Until publication by the Court of Appeal of its reasons following the hearing on 26 August, stay the enforcement of the judgment in De Rucci International Pty Ltd v Zhu & Ors [2020] NSWSC 1720.
6.   Until publication by the Court of Appeal of its reasons following the hearing on 26 August, stay the execution of the writ of levy of property issued on 22 April 2021 in proceedings 2019/00293452-010.
7.   Each party to pay their own costs of the stay application.
8.   Liberty to apply to the chambers of Payne JA…

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 149
Case: [2021] NSWCA 149
Decision Date: 16 July 2021

CaseChat Overview and Summary

In *Zhu v Wang*, the Court of Appeal of the Supreme Court of New South Wales considered an application for a stay of execution of a costs order made by the Supreme Court. The applicant, Mr. Zhu, sought to stay the enforcement of the costs order pending the determination of his substantive appeal against the primary judgment.

The central legal issue before the Court of Appeal was whether the applicant had demonstrated sufficient grounds to warrant the grant of a stay of execution of the costs order. This required the court to assess the applicant's prospects of success on the substantive appeal and the potential prejudice to the parties if the stay was granted or refused.

Payne JA applied the well-established principles governing applications for a stay of execution, which require the applicant to show that there are substantial arguable grounds for the appeal and that the balance of convenience favours the grant of the stay. His Honour considered the applicant's submissions regarding the alleged errors in the primary judge's findings and the potential for irreparable harm if the costs order was enforced before the appeal was heard.

The Court of Appeal ultimately dismissed the application for a stay of execution, finding that the applicant had not demonstrated a sufficient likelihood of success on the substantive appeal, nor had he established that the balance of convenience favoured the grant of a stay.

Orders

Orders of the court

See para [1]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Zhu v Wang [2021] NSWCA 149
Hearing dates:	12, 16 July 2021
Date of orders:	16 July 2021
Decision date:	16 July 2021
Before:	Payne JA
Decision:	See para [1]
Catchwords:	APPEALS – procedure – stay pending appeal
Cases Cited:	Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 De Rucci International Pty Ltd v Zhu [2020] NSWSC 1720 De Rucci International Pty Ltd v Zhu [2020] NSWSC 1927 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383
Category:	Procedural rulings
Parties:	Lucy Zhu (First Appellant) HQ Living Pty Ltd (Second Appellant) De Rucci Bundall Pty Ltd (Third Appellant) HQ Living (Moore Park) Pty Ltd (Fourth Appellant) HQ Bedding Pty Ltd (Fifth Appellant) Bing Kun Wang (First Respondent) De Rucci International Pty Ltd (Second Respondent)
Representation:	Counsel: Ms L Zhu (self-represented, Second to Fifth Appellants) Mr G Gee (Respondents) Solicitors: Self-represented (Appellants) Auyeung Hencent & Day Lawyers (Respondents)
File Number(s):	2020/369381
Publication restriction:	None
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 1720 Date of Decision: 02 December 2020 Before: Rothman J File Number(s): 2019/293452