Wang v Farkas (No 6) [2015] NSWCA 116

Wang v Farkas (No 6) [2015] NSWCA 116

Because the proposed application for special leave to appeal was never made, the purpose for which the bank guarantee proceeds were paid into Court had failed and the full amount, with interest less commission, had to be paid to Mr Wang and Ms Gu. Mr Farkas was not entitled to divert those funds to alleged debts or...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
07 May 2015
Procedural Posture
Procedural Ruling on Motions Concerning Payment Out of Money Paid Into Court as Security Pending a Proposed Application for Special Leave to Appeal / Motions Filed on 18 February 2015 and 1 April 2015 After No Application for Special Leave to Appeal Was Made
Outcome
The applicants' motion filed on 18 February 2015 was granted only to the extent of payment out of the funds and filing fee costs; otherwise it was dismissed. Mr Farkas' motion filed on 1 April 2015 was dismissed.
Legal Topics
['proposed Application for Special Leave to Appeal' 'money Paid Into Court as Security' 'payment Out on Failure of Purpose' 'variation of Conditions Imposed in Lieu of Undertaking as to Damages' 'procedural Fairness' 'delay in Seeking Variation']
['practice and Procedure' 'appellate Procedure'] ['proposed Application for Special Leave to Appeal' 'money Paid Into Court as Security' 'payment Out on Failure of Purpose' 'variation of Conditions Imposed in Lieu of Undertaking as to Damages' 'procedural Fairness' 'delay in Seeking Variation']

Source-derived case record

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Procedural Posture

Procedural Ruling on Motions Concerning Payment Out of Money Paid Into Court as Security Pending a Proposed Application for Special Leave to Appeal / Motions Filed on 18 February 2015 and 1 April 2015 After No Application for Special Leave to Appeal Was Made

Legal Issues

  1. 1 ['Whether the sum paid into Court and interest should be paid out to Mr Wang and Ms Gu after the proposed application for special leave to appeal was not made.' 'Whether Mr Farkas could obtain payment to himself from the sum held by the Registrar for amounts allegedly owed to him.' 'Whether order (3) made on 10 March 2014 should be declared inapplicable, revoked, or varied because of alleged procedural unfairness, disputed factual premises, or delay by the applicants.']

Ratio Decidendi

Because the proposed application for special leave to appeal was never made, the purpose for which the bank guarantee proceeds were paid into Court had failed and the full amount, with interest less commission, had to be paid to Mr Wang and Ms Gu. Mr Farkas was not entitled to divert those funds to alleged debts or costs, and his application to vary order (3) failed because no relevant procedural unfairness was established, the factual inference he sought about the source of funds was not made out, the source of the funds was not the basis of the condition imposed, and the variation application was brought too late.

Court Disposition

The applicants' motion filed on 18 February 2015 was granted only to the extent of payment out of the funds and filing fee costs; otherwise it was dismissed. Mr Farkas' motion filed on 1 April 2015 was dismissed.

Orders

  • ['Direct the Registrar to pay the sum paid into Court and any interest thereon (less commission) to the applicants Jian Wang and Y Ping Gu.' 'Order that George Farkas pay the applicants the costs of the motion filed for the applicants on 18 February 2015, limited to the filing fee.' 'Otherwise dismiss the motion of...