Chen v Lym International; Chen v Marcolongo [2009] NSWCA 121

Chen v Lym International; Chen v Marcolongo [2009] NSWCA 121

Mr Chen established an arguable appeal and a proper basis for a stay. The balance of convenience favoured continuing the stay because there was a real possibility that substantial stamp duty would be payable on a transfer to Lym International and again on re-transfer if the appeal succeeded; the ordered enquiry would be expensive and potentially wasted; and, in the circumstances, there was sufficient risk concerning repayment of the money judgments by Ms Yang and Jasmine. However, because the property needed protection and the parties distrusted each other, further submissions were required on appointment of a receiver or conditions for ongoing marketing pending the appeal.

Jurisdiction
Australia
Judgment Date
26 May 2009
Procedural Posture
Application for Stay of Judgment Pending Determination of Appeal / Notice of Motion in the New South Wales Court of Appeal
Outcome
Stay continued until further order; parties directed to file submissions about appointment of a receiver or ongoing marketing of the property pending determination of the appeal.
Legal Topics
['stay Pending Appeal' 'balance of Convenience' 'reasonable Prospects of Success' 'fiduciary Duty' 'conveyancing' 'stamp Duty' 'receivership' 'fraudulent Conveyance']
['procedure' 'equity' 'property Law'] ['stay Pending Appeal' 'balance of Convenience' 'reasonable Prospects of Success' 'fiduciary Duty' 'conveyancing' 'stamp Duty' 'receivership' 'fraudulent Conveyance']

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Procedural Posture

Application for Stay of Judgment Pending Determination of Appeal / Notice of Motion in the New South Wales Court of Appeal

Legal Issues

  1. 1 ['Whether Mr Chen demonstrated a proper basis for a stay pending determination of his appeal.' "Whether Mr Chen's appeal had arguable prospects of success despite adverse credit findings at trial." 'Whether the balance of convenience favoured a stay given the possible liability for substantial stamp duty on transfer and re-transfer of the property.' 'Whether the enquiry ordered by Hamilton J should be stayed pending appeal.' 'Whether the money judgments in favour of Ms Yang and Jasmine should be stayed pending appeal.' 'What interim arrangements should be made for management and marketing of the Golf Avenue property pending determination of the appeal.']

Ratio Decidendi

Mr Chen established an arguable appeal and a proper basis for a stay. The balance of convenience favoured continuing the stay because there was a real possibility that substantial stamp duty would be payable on a transfer to Lym International and again on re-transfer if the appeal succeeded; the ordered enquiry would be expensive and potentially wasted; and, in the circumstances, there was sufficient risk concerning repayment of the money judgments by Ms Yang and Jasmine. However, because the property needed protection and the parties distrusted each other, further submissions were required on appointment of a receiver or conditions for ongoing marketing pending the appeal.

Court Disposition

Stay continued until further order; parties directed to file submissions about appointment of a receiver or ongoing marketing of the property pending determination of the appeal.

Orders

  • ['Continue the stay ordered in this matter until further order;' 'Direct the parties to file any submissions as to the appointment of a receiver of the property or as to the ongoing marketing of the property pending the determination of the appeal by 4 pm, Tuesday 2 June. Any submission is to be delivered to my...