Zhang v Cao [2015] NSWSC 1291

Zhang v Cao [2015] NSWSC 1291

Ex parte asset preservation relief was granted because the plaintiffs demonstrated an arguable case concerning the mortgagee's exercise of the power of sale and the first plaintiff's prospective leave to sue on behalf of the second plaintiff, and because registration of further transfers could confer indefeasibility and make later relief futile.

Jurisdiction
Australia
Judgment Date
31 August 2015
Procedural Posture
Ex Parte Application for an Asset Preservation Order and Abridgement of Service of a Summons / Ex Parte Procedural Ruling
Outcome
Ex parte relief granted.
Legal Topics
['asset Preservation Order' 'abridgement of Service' 'derivative Proceedings' 'power of Sale Under Mortgage' 'indefeasibility' "directors' Duties"]
['civil Procedure' 'corporations' 'property' 'mortgages'] ['asset Preservation Order' 'abridgement of Service' 'derivative Proceedings' 'power of Sale Under Mortgage' 'indefeasibility' "directors' Duties"]

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Procedural Posture

Ex Parte Application for an Asset Preservation Order and Abridgement of Service of a Summons / Ex Parte Procedural Ruling

Legal Issues

  1. 1 ['Whether ex parte asset preservation relief should be granted to prevent further transfers of property or exercise of mortgage powers.' 'Whether the first plaintiff had an arguable basis for leave under s 237 of the Corporations Act 1996 (Cth) to bring proceedings on behalf of the second plaintiff.' "Whether there was an arguable case that the second defendant's mortgage power of sale or discretion as to default was not properly exercised."]

Ratio Decidendi

Ex parte asset preservation relief was granted because the plaintiffs demonstrated an arguable case concerning the mortgagee's exercise of the power of sale and the first plaintiff's prospective leave to sue on behalf of the second plaintiff, and because registration of further transfers could confer indefeasibility and make later relief futile.

Court Disposition

Ex parte relief granted.

Orders

  • ['Orders one to seven in the Summons filed in court were made.' "Upon the first plaintiff by his counsel giving the usual undertaking as to damages, orders in the form of paragraphs 8(a) and 8(b) of the plaintiffs' Summons were made to operate until 4:00pm on Thursday, 3 September 2015." "The plaintiffs' Summons was...