Ke Qin Ren v Hong Jiang; Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd (in liq)

[2014] NSWCA 388

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Test for summary judgment
4. › Whether court must be so certain of outcome that permitting proceeding to go forward would amount to abuse of process
5. › Whether relevant to consider unpleaded allegations and defences
6. › Whether non-compliance with court directions justifies summary judgment
1. Practice and Procedure
2. › Abuse of process
3. › Whether application for leave to appeal is abuse of process
4. › Whether security for judgment debt required as condition of leave
5. › Whether breach of undertaking established
1. Appeal
2. › Leave to appeal
3. › Summary judgment
4. › Whether summary judgment discloses appellable error
5. › Whether applicant required to serve proposed defence, discovery and evidence on application for leave
1. Equity
2. › Constructive trust
3. › Whether constructive trust arises from transfer of property for alleged failure of consideration
4. › Whether proprietary relief available on basis outside pleaded case

Quick Take

On an application for summary judgment, the court must consider whether there is an underlying defence, not merely whether one is pleaded; the high threshold is not addressed by reference to the pleadings alone. Where summary judgment discloses appellable error, leave to appeal will ordinarily be granted without requiring the applicant to first serve a proposed defence, discovery and evidence. An application for leave to appeal from a large summary judgment disclosing error on its face will not readily be characterised as an abuse of process merely because the applicant has not provided security for the judgment debt.