Huang v Hua Cheng International Group Pty Ltd [2019] NSWCA 155

Huang v Hua Cheng International Group Pty Ltd [2019] NSWCA 155

The applicants were entitled to leave to appeal and the appeal was allowed because there was no evidence before the primary judge that the applicants had been notified of the hearings after their solicitor ceased to act, and the affidavit evidence before the Court of Appeal established that in October 2018 they had no intention to abandon the proceedings. In those circumstances the inference of abandonment could not support the costs order, and order (2) made by Darke J on 11 October 2018 was set aside.

Jurisdiction
Australia
Judgment Date
20 June 2019
Procedural Posture
Application for Leave to Appeal and Appeal / Court of Appeal From Order (2) Made by Darke J in the Supreme Court, Equity Division on 11 October 2018
Outcome
Leave under s 500(2) granted nunc pro tunc, leave to appeal granted, appeal allowed, and the costs order made by Darke J set aside.
Legal Topics
['leave to Appeal' 'costs Order' 'dismissal of Proceedings' 'abandonment of Proceedings' 'additional Evidence on Appeal' 'company in Liquidation' 'leave to Proceed Against Company in Liquidation']
['civil Procedure' 'corporations'] ['leave to Appeal' 'costs Order' 'dismissal of Proceedings' 'abandonment of Proceedings' 'additional Evidence on Appeal' 'company in Liquidation' 'leave to Proceed Against Company in Liquidation']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal / Court of Appeal From Order (2) Made by Darke J in the Supreme Court, Equity Division on 11 October 2018

Legal Issues

  1. 1 ['Whether the applicants should be granted leave to proceed against Hua Cheng International Holdings Group Pty Ltd under s 500(2) of the Corporations Act 2001 (Cth) nunc pro tunc.' 'Whether leave to appeal should be granted from the costs order made when the proceedings were dismissed.' 'Whether the primary judge could infer that the applicants had abandoned the proceedings in the absence of evidence that they had been notified of the further hearings after their solicitor ceased to act.' 'Whether the late affidavit evidence should be received and considered on the appeal.']

Ratio Decidendi

The applicants were entitled to leave to appeal and the appeal was allowed because there was no evidence before the primary judge that the applicants had been notified of the hearings after their solicitor ceased to act, and the affidavit evidence before the Court of Appeal established that in October 2018 they had no intention to abandon the proceedings. In those circumstances the inference of abandonment could not support the costs order, and order (2) made by Darke J on 11 October 2018 was set aside.

Court Disposition

Leave under s 500(2) granted nunc pro tunc, leave to appeal granted, appeal allowed, and the costs order made by Darke J set aside.

Orders

  • ['Grant leave to the applicants under s 500(2) of the Corporations Act 2001 (Cth) nunc pro tunc to proceed against Hua Cheng International Holdings Group Pty Ltd.' 'Grant the applicants leave to appeal.' 'Direct that the amended draft notice of appeal in proceedings 2018/347492 stand as the notice of appeal.' 'Allow...