Ren v Jiang [2013] NSWCA 194

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ren v Jiang [2013] NSWCA 194 Hearing dates: 17 June 2013 Decision date: 17 June 2013 Before: Basten JA Decision: 1. Order that the Notice of Motion filed by the first and second respondents on 26 April 2013, and the motion filed by the appellants on 24 April 2013, be stood over until 26 August 2013. 2. Order that on or before 19 August 2013, the first and second appellants pay into court the sum of $16,000 by way of security of the costs of the respondents in respect of the first and second respondents' costs to oppose the appellants' notice of motion for s 471B leave. Note the agreement of the first and second appellants, and the first and second respondents, without admission, that: (1) Upon condition that the first appellant receives the sum of $500,000 from Mr Guo Wen Qi by 5 August 2013 he will, (a) notify the respondents of the receipt of funds from Mr Guo pursuant to the undertaking he has given to the Federal Court; (b) pay into this Court the sum of $450,000 within 14 days after it is received by the first appellant from Mr Guo to be held in that account pending the outcome of all appeals and proceedings initiated by the appellants flowing from the decision of Black J of 29 June 2012, and the orders made by him on 19 July 2012 and orders of 13 March 2013, and 19 April 2013. (c) pay into the Court the sum of $50,000 to be deposited into an interest bearing account within 14 days after it is received by the first appellant from his agreement with Mr Guo for payment of $500,000 by the end of July 2013, by way of security for costs of the first and second respondents in respect of all appeals and proceedings initiated by the appellants flowing from the aforesaid decision of and orders of Black J. (2) In the event that the first appellant does not receive the sum of $500,000 from Mr Guo by 5 August 2013 and the agreement and actions noted in note (1) above are not subsequently complied with, the first and second respondents' motion dated 26 April 2013, and the appellants' notice of motion to set aside the notice to produce issued by the first and second respondents dated 28 March 2013, are to be relisted on 26 August 2013. (3) In the event that the first appellant receives the sum of $500,000 from Mr Guo by 5 August 2013 and the agreement and actions noted in note (1) above are subsequently complied with: (a) the first and second respondents' motion dated 26 April 2013 be dismissed; (b) the notice to produce issued by the first and second respondents to the appellants dated 28 March 2013 be set aside in whole, and (c) the appellants to pay the first and second respondents' costs of their motion as agreed or assessed. 4. Direct that the appellants, if and when they file a summons seeking leave to appeal Black J's orders made this year, advise the Registrar of the need to list that summons for first return on 26 August 2013. 5. Vacate the listing of the matter for directions before the Registrar on 19 June 2013. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - civil - appeal - judgments and orders - security for stay - timing of hearing - existence of bankruptcy proceedings against appellants - no question of principle Legislation Cited: Corporations Act 2001 (Cth), s 471B Category: Procedural and other rulings Parties: Ke Qin Ren (First Applicant) Pei Xu (Second Applicant) Yi Cheng Jiang (Third Applicant) Gloconnect Pty Ltd (Fourth Applicant) Hong Jiang (First Respondent) Yongan Xie (Second Respondent) Wan Ze Property Development (Aust) Pty Ltd (Third Respondent) Representation: M Ellicott (Applicants) D A Smallbone (First and Second Respondents) D C Eardley (Third Respondent) James Lee Solicitors (Applicants) Austin Haworth & Lexon Legal (First and Second Respondents) Downeys Lawyers (Third Respondent) File Number(s): CA 2012/240805 Decision under appeal Jurisdiction: 9111 Citation: [2012] NSWSC 821; [2013] NSWSC 189 Before: Black J File Number(s): SC 2011/51745; SC 2012/304559