Wang v Farkas (No 2) [2014] NSWCA 57

Wang v Farkas (No 2) [2014] NSWCA 57

Because Mr Farkas had an arguable proposed special leave application and faced a real risk that any successful High Court appeal could be rendered nugatory if security were discharged, but Mr Wang and Ms Gu would suffer costs from being kept out of the secured funds, the appropriate balance was to call up the bank guarantee and pay it into court pending the High Court process, with Mr Farkas to bear the respondents' costs of maintaining the security if the High Court application or appeal failed.

Jurisdiction
Australia
Judgment Date
10 March 2014
Procedural Posture
Post Judgment Application for Continuation of Security Pending Foreshadowed Application for Special Leave to Appeal / After Judgment Handed Down by the Court of Appeal But Before Final Orders; Application Concerning Security Pending Proposed High Court Special Leave Application
Outcome
Application granted in part; bank guarantee ordered to be called up and paid into court pending the foreshadowed High Court application and any appeal, with conditional cost protection for Mr Wang and Ms Gu.
Legal Topics
['security for Payment of Debt Pending Appeal' 'post Judgment Mareva Injunction' 'special Leave to Appeal to the High Court' 'balance of Convenience' 'costs of Security']
['practice and Procedure' 'appeals'] ['security for Payment of Debt Pending Appeal' 'post Judgment Mareva Injunction' 'special Leave to Appeal to the High Court' 'balance of Convenience' 'costs of Security']

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Procedural Posture

Post Judgment Application for Continuation of Security Pending Foreshadowed Application for Special Leave to Appeal / After Judgment Handed Down by the Court of Appeal But Before Final Orders; Application Concerning Security Pending Proposed High Court Special Leave Application

Legal Issues

  1. 1 ["Whether security provided by Mr Wang and Ms Gu before the appeal should be continued pending Mr Farkas' foreshadowed application for special leave to appeal to the High Court of Australia." 'Whether there was an arguable case for obtaining special leave to appeal to the High Court.' 'Where the balance of convenience lay concerning maintenance of the status quo with respect to security.' 'Whether Mr Farkas should bear the costs incurred by Mr Wang and Ms Gu in maintaining security if the High Court application or appeal were unsuccessful.']

Ratio Decidendi

Because Mr Farkas had an arguable proposed special leave application and faced a real risk that any successful High Court appeal could be rendered nugatory if security were discharged, but Mr Wang and Ms Gu would suffer costs from being kept out of the secured funds, the appropriate balance was to call up the bank guarantee and pay it into court pending the High Court process, with Mr Farkas to bear the respondents' costs of maintaining the security if the High Court application or appeal failed.

Court Disposition

Application granted in part; bank guarantee ordered to be called up and paid into court pending the foreshadowed High Court application and any appeal, with conditional cost protection for Mr Wang and Ms Gu.

Orders

  • ['Direct the Registrar to call up the amount of the bank guarantee obtained by Mr Wang and Ms Gu from the ANZ Bank dated 26 September 2013 being Guarantee No. 153689 so that it can be paid into court.' 'Direct that the proceeds of the bank guarantee be held by the Registrar pending determination of the foreshadowed...