Lin v Wu [2019] NSWSC 1666

Lin v Wu [2019] NSWSC 1666

Service on both defendants was valid under UCPR because Ms Zhu was domiciled in Australia and Mr Wu was a necessary or proper party; there was an arguable case against Ms Zhu. The forum was not inappropriate, given the parties' connections to Australia and the location of assets. There was no substantial nondisclosure on the ex parte application. Accordingly, the defendants' notice of motion was dismissed with costs.

Parties
Plaintiff | Respondent: Zi Rong Lin; First Defendant | First Applicant: Zhangqiang Wu; Second Defendant | Second Applicant: Xiaoyi Zhu
Jurisdiction
Australia
Judgment Date
29 November 2019
Procedural Posture
Civil Equity (commercial List) / Post Interlocutory Application; Judgment on Notice of Motion to Set Aside Service, Stay Proceedings, and Dissolve Freezing Order
Outcome
Notice of motion dismissed with costs; proceedings to continue
Legal Topics
Service Outside Australia, Substituted Service, Jurisdiction, Forum Non Conveniens, Freezing Order, Duty of Candour in Ex Parte Applications
Civil Procedure Private International Law Service Outside Australia Substituted Service Jurisdiction Forum Non Conveniens Freezing Order Duty of Candour in Ex Parte Applications

Case Brief

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Parties

Zi Rong Lin

Plaintiff | Respondent

Zhangqiang Wu

First Defendant | First Applicant

Xiaoyi Zhu

Second Defendant | Second Applicant

Procedural Posture

Civil Equity (commercial List) / Post Interlocutory Application; Judgment on Notice of Motion to Set Aside Service, Stay Proceedings, and Dissolve Freezing Order

Legal Issues

  1. 1 Whether service of originating process outside Australia without leave was valid under Uniform Civil Procedure Rules (UCPR)
  2. 2 Whether to set aside substituted service or stay proceedings on forum non conveniens grounds
  3. 3 Whether duty of candour was breached on the ex parte application for substituted service and freezing order

Ratio Decidendi

Service on both defendants was valid under UCPR because Ms Zhu was domiciled in Australia and Mr Wu was a necessary or proper party; there was an arguable case against Ms Zhu. The forum was not inappropriate, given the parties' connections to Australia and the location of assets. There was no substantial nondisclosure on the ex parte application. Accordingly, the defendants' notice of motion was dismissed with costs.

Court Disposition

Notice of motion dismissed with costs; proceedings to continue

Orders

  • The notice of motion filed on 19 September 2019 be dismissed with costs
  • The matter be stood over to the directions list on 6 December 2019