Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd (in Liq) [2014] NSWCA 350

Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd (in Liq) [2014] NSWCA 350

The motion was dismissed because the circumstances did not justify staying the leave application or ordering security for costs. Mr Yi Cheng Jiang was a natural person present in the jurisdiction, with assets in Australia, and normal enforcement mechanisms, including bankruptcy processes, were available and being used against him. The authorities relied on for a stay concerned materially different circumstances or re-litigation at first instance. Security was also refused because some security had already been provided, the motion had not been prosecuted promptly, the hearing was imminent, the leave application was to be heard with the related Ren v Jiang proceeding, the marginal costs...

Jurisdiction
Australia
Judgment Date
14 October 2014
Procedural Posture
Interlocutory Application in an Application for Leave to Appeal / Notice of Motion by the Second and Third Respondents Seeking a Stay Pending Payment of Outstanding Costs and Provision of Security for Costs
Outcome
Notice of motion dismissed with costs, with costs on an indemnity basis from 2 September 2014.
Legal Topics
['stay of Proceedings' 'outstanding Costs Rule' 'security for Costs' 'indemnity Costs' 'application for Leave to Appeal']
['civil Procedure' 'appellate Procedure' 'costs'] ['stay of Proceedings' 'outstanding Costs Rule' 'security for Costs' 'indemnity Costs' 'application for Leave to Appeal']

Case Brief

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Procedural Posture

Interlocutory Application in an Application for Leave to Appeal / Notice of Motion by the Second and Third Respondents Seeking a Stay Pending Payment of Outstanding Costs and Provision of Security for Costs

Legal Issues

  1. 1 ["Whether Mr Yi Cheng Jiang's application for leave to appeal should be stayed until outstanding costs orders were paid." 'Whether Mr Yi Cheng Jiang should provide security for costs in the amount of $50,000.' 'Whether the second and third respondents should pay costs on an indemnity basis after refusing a Calderbank offer.']

Ratio Decidendi

The motion was dismissed because the circumstances did not justify staying the leave application or ordering security for costs. Mr Yi Cheng Jiang was a natural person present in the jurisdiction, with assets in Australia, and normal enforcement mechanisms, including bankruptcy processes, were available and being used against him. The authorities relied on for a stay concerned materially different circumstances or re-litigation at first instance. Security was also refused because some security had already been provided, the motion had not been prosecuted promptly, the hearing was imminent, the leave application was to be heard with the related Ren v Jiang proceeding, the marginal costs...

Court Disposition

Notice of motion dismissed with costs, with costs on an indemnity basis from 2 September 2014.

Orders

  • ['The notice of motion filed by the second and third respondents on 4 August 2014 be dismissed with costs.' 'The costs in order 1 to be calculated on an indemnity basis for the period on and after 2 September 2014.']