Yi Cheng Jiang v Wan Ze Property Development

Judgment 1LEEMING JA: Ms Hong Jiang and Mr Yongan Xie, who are the second and third respondents in proceeding 2014/211574, which is an application for leave to appeal set down for hearing in the first week of November, seek orders that the proceeding be stayed until the applicant Mr Yi Cheng Jiang (a) pays various outstanding costs obligations, and (b) provides security in the amount of $50,000. It was common ground that I had power to deal with their motion, a view which I share by reason of s 46(1)(d) and (2)(a) of the Supreme Court Act 1970 (NSW). I have reached the conclusion that the whole of the notice of motion should be dismissed. In order to explain why, the starting point is the procedural history of the litigation between these parties. 2Mr Yi Cheng Jiang (also known as Mr Ken Jiang) seeks leave to challenge the same judgment - one given by Black J so long ago as 29 June 2012 (In the matter of Wan Ze Property Development (Aust) Pty Ltd [2012] NSWSC 722; 90 ACSR 593) - as is challenged in proceeding 2012/240805 (Ren v Jiang). The remaining moving parties in that proceeding are Mr Ren and Ms Xu, who were the first and second defendants at first instance; Mr Yi Cheng Jiang was the third defendant. (Leave is also sought under s 471B of the Corporations Act 2001 (Cth), but in what follows I shall refer merely to the application for leave.) This application has been the subject of no fewer than four interlocutory judgments in this Court over the last year. The most recent, Ren v Jiang (No 4) [2014] NSWCA 315, was my dismissal of the liquidator's application for security for costs, because of its delay and because security had already been provided. Although it was not known to me at the time, the current application was being prepared for hearing at the time I heard and dismissed the liquidator's application. Both counsel acknowledged, very properly, that it would have been appropriate for the existence of another interlocutory application to have been drawn to my attention; I should say immediately that I believe the failure to do so was entirely inadvertent. 3The applicant and respondent to the motion, Mr Yi Cheng Jiang, was, until very recently, the third applicant in the Ren v Jiang proceeding. In circumstances which were the subject of Ren v Jiang (No 3) [2014] NSWCA 204, on 27 June 2014 I refused his application to be represented separately from the other applicants within that proceeding. Following that decision, and in accordance with what was suggested during the hearing, Mr Yi Cheng Jiang filed a notice of discontinuance and commenced a separate proceeding, and directions have been made whereby that proceeding can be heard and determined at the same time as the Ren v Jiang proceeding. 4On around 17 July 2014, Mr Yi Cheng Jiang's summary of argument in support of leave was filed and served. It is a concise document of 10 pages. The summary of argument of the respondents, Ms Hong Jiang and Mr Yongan Xie, who are the applicants on the motion before me, has not been filed and served, notwithstanding the 28-day period specified in the r 51.13(1) of the Uniform Civil Procedure Rules 2005 (NSW), on the basis that they had moved to seek a stay on both of the bases indicated above, by their notice of motion filed 4 August 2014. It seems that thereafter the parties agreed to a leisurely timetable for the preparation of evidence in relation to the motion, until its existence came to my attention on 1 October 2014. 5Mr Smallbone told me when his clients' motion was heard that the new proceeding brought by Mr Yi Cheng Jiang had not been set down for hearing at the same time as the two days already fixed for Ren v Jiang and that it would be very difficult, but not impossible, in the three weeks remaining for his side to have it made ready for hearing. It became apparent that the application for security for costs was brought on the basis that the two applications for leave would be heard separately - and so indeed security was sought on the basis that there would be a separate two day hearing, and a large component of the costs was the costs of junior counsel and solicitor at that hearing. 6It does appear that there has been no order made formally setting down this proceeding for hearing next month. If indeed that is so, it is a mere technicality (and may be a consequence of the failure by Ms Hong Jiang and Mr Yongan Xie to file their submissions opposing leave). It is plain that the efficient and appropriate course to deal with the two applications for leave to appeal against the same judgment, which had comprised a single proceeding for well over a year, is that they should be heard and determined by the same Court on the same occasion, unless for some reason that be impossible. As much was common ground when the application for separate representation was heard on 26 June 2014, when senior counsel for Mr Ren and Ms Xu stated that what should be happening was the common practice of separately represented appellants bringing separate appeals "which are almost invariably heard together" (T 16.19). Mr Smallbone did not dispute that what I described, by reference to Mr Sexton's submission, as the "typical situation in which one has concurrent leave applications" could occur (T 19.45 - 20.3). As much was confirmed by my reasons at [21] and [22] in respect of the allocation of a date for the hearing of all applications and the making of directions to ready the new proceeding for hearing at the same time as the existing proceeding (emphasis added): "The third applicant may, if he chooses and they are willing to have him, retain the other applicants' solicitors. (They may or may not be willing to have him on terms that are acceptable to them or him; I am unaware of the terms of the former retainer, but his evidence is that he has not paid them any fees at all.) He may alternatively keep his newly chosen lawyers by discontinuing and starting afresh. I see no reason why the essentially mechanical task of preparing a summons for leave, a draft notice of appeal, and the summary of argument supplemental to the documents to be prepared by the other applicants need be particularly burdensome. Certainly, I see no need to duplicate material which is otherwise before the Court, and to the extent that the rules would otherwise require that to occur (for example, by the white folder containing the judgment and orders), I indicate that I would be disposed to dispense with the application of those rules to the third applicant if he wishes to discontinue. To that end, I should confirm that in the unusual circumstances of these proceedings, and subject to any agreement of the parties as to a course they regard as more efficient, it should be for the applicants to prepare materials in support of their applications, and for the respondents to prepare materials in support of their abuse of process application. I propose to stand this matter in the Registrar's list in some 3 weeks time, on Monday 21 July 2014. That time period provides ample opportunity for any party disappointed with my decision to seek, if he, she or it chooses, to have it reviewed. It also provides, in my view, ample opportunity for the third applicant to determine his position, and to file and serve a notice of discontinuance and a fresh originating process in his own name if that is his choice. On the occasion it is next before the Registrar, a date should be allocated, with an estimate of 1 day plus, and directions made so that all applications can be determined fairly and efficiently on that date." 7It will be seen that the directions contemplated in the passages emphasised above are inconsistent with a separate hearing of Mr Yi Cheng Jiang's application for leave. I return below to the consequences of the misapprehension that appears to have occurred on the part of Ms Hong Jiang and Mr Yongan Xie and their lawyers.