Zhao v Ausin Group (Australia) Pty Ltd [2020] FCA 1659

Zhao v Ausin Group (Australia) Pty Ltd [2020] FCA 1659

Summary dismissal is granted against the applicant's claim for relief under s 1324 of the Corporations Act as there is no reasonable prospect of success following Winpar Holdings, but the applicant's other claims, particularly under s 37A of the Conveyancing Act, raise triable issues and should proceed to trial.

Parties
Applicant: Song Zhao; First Respondent: Ausin Group (Australia) Pty Ltd; Second Respondent: Tianyou Jin
Jurisdiction
Australia
Judgment Date
17 November 2020
Procedural Posture
Interlocutory Application / Summary Judgment and Leave to Amend
Outcome
Summary judgment partially granted; leave to amend granted in part; proceeding to continue on remaining issues.
Legal Topics
Summary Judgment, Consideration in Contracts, Novation, Company Share Capital Reduction, Voidable Transactions, Leave to Amend Pleadings
Practice and Procedure Contracts Corporations Law Summary Judgment Consideration in Contracts Novation Company Share Capital Reduction Voidable Transactions +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 15 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Song Zhao

Applicant

Ausin Group (Australia) Pty Ltd

First Respondent

Tianyou Jin

Second Respondent

Procedural Posture

Interlocutory Application / Summary Judgment and Leave to Amend

Legal Issues

  1. 1 Whether the applicant's claim should be summarily dismissed for having no reasonable prospect of success under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1) of the Federal Court Rules 2011 (Cth)
  2. 2 Whether the alleged 2018 agreement is enforceable for lack of consideration
  3. 3 Whether relief under s 1324 of the Corporations Act 2001 (Cth) is available when the capital reduction has already taken place

Ratio Decidendi

Summary dismissal is granted against the applicant's claim for relief under s 1324 of the Corporations Act as there is no reasonable prospect of success following Winpar Holdings, but the applicant's other claims, particularly under s 37A of the Conveyancing Act, raise triable issues and should proceed to trial.

Court Disposition

Summary judgment partially granted; leave to amend granted in part; proceeding to continue on remaining issues.

Orders

  • The applicant's application for relief under s 1324 of the Corporations Act 2001 (Cth) is dismissed.
  • The first respondent's interlocutory application for summary judgment otherwise is dismissed.