Wang v Farkas (No 2) [2014] NSWCA 57

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wang v Farkas (No 2) [2014] NSWCA 57 Hearing dates: 10 March 2014 Decision date: 10 March 2014 Before: Basten JA Decision: 1. Direct the Registrar to call up the amount of the bank guarantee obtained by Mr Wang and Ms Gu from the ANZ Bank dated 26 September 2013 being Guarantee No. 153689 so that it can be paid into court. 2. Direct that the proceeds of the bank guarantee be held by the Registrar pending determination of the foreshadowed application for special leave to appeal and, if leave be granted, the appeal to the High Court of Australia. 3. In the event that the application to the High Court is dismissed or, if leave be granted, the appeal is dismissed, Mr Farkas is to pay to Mr Wang and Ms Gu the costs incurred by them by way of fees, charges and the difference between income earned on the deposit and the interest payable by them under their home mortgage with the Commonwealth Bank for the period from 10 March 2014 until the date of repayment of the funds held by the Court, interest to be assessed on the funds held from time to time until repaid or otherwise applied in accordance with an order of a court. 4. Direct that Mr Wang and Ms Gu pay the costs of this application limited to the filing fee incurred by Mr Farkas. [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: PRACTICE AND PROCEDURE - security for payment of debt pending appeal - judgment debt set aside on appeal - foreshadowed application for special leave to appeal to the High Court - whether security should be continued pending special application - whether arguable case for obtaining special leave - balance of potential prejudice - applicant to meet cost of security if further appeal unsuccessful Legislation Cited: Judiciary Act 1903 (Cth), s 35 Proceeds of Crime Act 2002 (Cth) Cases Cited: London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 Category: Procedural and other rulings Parties: George Farkas (Applicant) James Wang (First Respondent) Y Ping Gu (Second Respondent) Representation: Counsel: