Fan v Tang & Ors [No. 2] [2011] NSWSC 177

Fan v Tang & Ors [No. 2] [2011] NSWSC 177

Because JV Capital Pty Limited was deregistered prior to the original orders, its interest in the Box Hill property had already vested in the Commonwealth of Australia on trust for Mr Fan. The proper course was to substitute the Commonwealth as second defendant and make orders enabling transfers to Mr Fan or as he directs, with ASIC executing instruments as agent of the Commonwealth. This ensures the implementation of the substantive judgment and effectuation of trust rights, notwithstanding the deregistration.

Parties
Plaintiff: Lap Kay Frank Fan; First Defendant: James Chi Kit Tang; Second Defendant (deregistered, Replaced by Commonwealth of Australia): JV Capital Pty Limited; Third Defendant: Vicky Lai Ki Yang; Second Defendant (substituted): Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
14 March 2011
Procedural Posture
Civil / Post Judgment Consequential Orders
Outcome
Amended orders made implementing earlier judgment by substituting the Commonwealth of Australia for the deregistered company, ordering property transfers and giving Registrar and ASIC power to execute necessary instruments.
Legal Topics
Execution of Judgments, Substitution of Parties, Vesting of Property Upon Deregistration, Trusts—resulting and Constructive Trusts, Equitable Compensation
Equity Corporations Law Trusts Execution of Judgments Substitution of Parties Vesting of Property Upon Deregistration Trusts—resulting and Constructive Trusts Equitable Compensation

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Parties

Lap Kay Frank Fan

Plaintiff

James Chi Kit Tang

First Defendant

JV Capital Pty Limited

Second Defendant (deregistered, Replaced by Commonwealth of Australia)

Vicky Lai Ki Yang

Third Defendant

Commonwealth of Australia

Second Defendant (substituted)

Procedural Posture

Civil / Post Judgment Consequential Orders

Legal Issues

  1. 1 Whether orders can be implemented where a corporate defendant has been deregistered prior to judgment.
  2. 2 Who properly holds and can transfer the trust property after deregistration of JV Capital Pty Limited.
  3. 3 Whether substituted service and notice requirements were satisfied for absent defendants.

Ratio Decidendi

Because JV Capital Pty Limited was deregistered prior to the original orders, its interest in the Box Hill property had already vested in the Commonwealth of Australia on trust for Mr Fan. The proper course was to substitute the Commonwealth as second defendant and make orders enabling transfers to Mr Fan or as he directs, with ASIC executing instruments as agent of the Commonwealth. This ensures the implementation of the substantive judgment and effectuation of trust rights, notwithstanding the deregistration.

Court Disposition

Amended orders made implementing earlier judgment by substituting the Commonwealth of Australia for the deregistered company, ordering property transfers and giving Registrar and ASIC power to execute necessary instruments.

Orders

  • The Commonwealth of Australia substituted as second defendant for JV Capital Pty Limited with effect from 12 July 2009.
  • Leave granted to the Commonwealth to file an appearance.