Chen v Marcolongo; Chen v Lym International Pty Ltd (No 2) [2009] NSWCA 367

Chen v Marcolongo; Chen v Lym International Pty Ltd (No 2) [2009] NSWCA 367

On review of the parties' further submissions and noting some drafting corrections and non-contentious amendments, the Court varied the previous appeal orders so that Mrs Marcolongo’s orders and declarations in her favour were set aside, her proceedings dismissed with costs, and security for costs (AU$60,000) was ordered to be returned to Mr Chen's solicitors (subject to stay pending High Court special leave applications). Further, previous Equity Division orders related to the assignment and discharge of a mortgage and property transfer were clarified and varied; most other lower court orders stood, with explicit guidance on variation and liberty to apply in case of subsequent changes.

Parties
Appellant: Yu Po Chen; First Respondent: Leonilda Marcolongo; Second Respondent (40118/09), First Respondent (40119/09): Lym International Pty Ltd; Fourth Respondent (40119/09): Westpac Banking Corporation; Second Respondent (40119/09): Limin Yang; Third Respondent (40119/09): Yang Liu
Jurisdiction
Australia
Judgment Date
12 November 2009
Procedural Posture
Appeal / Consequential Orders Following Appellate Judgment
Outcome
Appeal allowed (40118/09); Appeal allowed in part (40119/09); consequential orders made replacing previous orders of 13 October 2009.
Legal Topics
Costs Orders, Variation of Court Orders, Security for Costs, Assignment of Mortgage
Equity Civil Procedure Costs Orders Variation of Court Orders Security for Costs Assignment of Mortgage

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Parties

Yu Po Chen

Appellant

Leonilda Marcolongo

First Respondent

Lym International Pty Ltd

Second Respondent (40118/09), First Respondent (40119/09)

Westpac Banking Corporation

Fourth Respondent (40119/09)

Limin Yang

Second Respondent (40119/09)

Yang Liu

Third Respondent (40119/09)

Procedural Posture

Appeal / Consequential Orders Following Appellate Judgment

Legal Issues

  1. 1 Whether Mrs Marcolongo should pay Lym International's costs of trial
  2. 2 Appropriate form of consequential orders after appeal
  3. 3 Return and stay of security for costs paid into court

Ratio Decidendi

On review of the parties' further submissions and noting some drafting corrections and non-contentious amendments, the Court varied the previous appeal orders so that Mrs Marcolongo’s orders and declarations in her favour were set aside, her proceedings dismissed with costs, and security for costs (AU$60,000) was ordered to be returned to Mr Chen's solicitors (subject to stay pending High Court special leave applications). Further, previous Equity Division orders related to the assignment and discharge of a mortgage and property transfer were clarified and varied; most other lower court orders stood, with explicit guidance on variation and liberty to apply in case of subsequent changes.

Court Disposition

Appeal allowed (40118/09); Appeal allowed in part (40119/09); consequential orders made replacing previous orders of 13 October 2009.

Orders

  • 40118/09: Appeal allowed.
  • 40118/09: The declaration and orders of the Court made on 18 March 2009 and entered on 23 March 2009 in favour of Mrs Marcolongo be set aside.