Gym & Tonic Healthclubs Pty Ltd v Cai Xia Xu [2022] NSWSC 1741

Supreme Court New South Wales

Medium Neutral Citation: Gym & Tonic Healthclubs Pty Ltd v Cai Xia Xu [2022] NSWSC 1741 Hearing dates: 9 December 2022 Date of orders: 16 December 2022 Decision date: 16 December 2022 Jurisdiction: Equity - Real Property List Before: Meek J Decision: Order made for payment out of funds Catchwords: PAYMENT OUT OF FUNDS — Funds paid into court in context of an application by a tenant of properties seeking urgent relief against forfeiture – Funds directed to be held to abide outcome of proceedings — Following default by the parties in appearing proceedings dismissed in early 2017 — First defendant/applicant claims entitlement to the funds and explains delay in seeking funds by reference to leaving management of proceedings to her son — The plaintiffs were wound up and the former liquidators of the plaintiffs given notice of the claim for release of funds PAYMENT OUT OF FUNDS — Principles attending payment out where funds deposited by Court order essentially as security of rental arrears to abide Court determination of a purported set-off claim ORDERS — Construction of Court orders PROCEDURE — Case management procedures of the Court should be moulded to permit the question of entitlement to the funds to be simply and inexpensively determined in circumstances where the only other parties conceivably interested in the funds have been notified and there is no realistic prospect that they will take any technically formalistic steps to pursue any such claim and unlikely that such steps will have any practical utility PAYMENT OUT OF FUNDS — Consideration of delay in making claim — On facts delay not an obstacle to payment out Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24 Dura (Australia) Constructions Pty Ltd (in liq) (recs and mgrs apptd) v Hue Boutique Living Pty Ltd (formerly SC Land Richmond Pty Ltd) (2014) 49 VR 86; [2014] VSCA 326 Equuscorp Pty Ltd v Wilmoth, Field Warne (a firm) [2006] VSCA 123 Grand View Ausbuild Pty Ltd v Budget Demolitions Pty Ltd (2019) 99 NSWLR 397; [2019] NSWCA 60 In the matter of Elegant Swan Pty Ltd (in liquidation) (controllers appointed) [2022] NSWSC 1451 JKB Holdings Pty Ltd v de la Vega [2013] NSWSC 501 Kathleen Lanphier v Westpac Banking Corporation [2015] NSWSC 292 Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573 Thompson v Golden Destiny Investments Pty Ltd (No 2) [2015] NSWSC 1929 Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 1 Category: Principal judgment Parties: Gym and Tonic Healthclubs Pty Ltd (First Plaintiff / Respondent on Notice of Motion filed 4 November 2022) Henleys Property and Construction Group Pty Ltd (Second Plaintiff) Cai Xia Xu (First Defendant / Applicant on Notice of Motion filed 4 November 2022) Hello Maple Pty Ltd (Second Defendant) Representation: Counsel: N Li (First Defendant / Applicant on Notice of Motion filed 4 November 2022)