Babsari P/L v Wong

Case [2000] QSC 380

SUPREME COURT OF QUEENSLAND

CITATION: Babsari P/L v Wong & Ors [2000] QSC 380
PARTIES: BABSARI PTY LTD ACN 010 390 566
(plaintiff)
v
DOUGLAS CHEE YIN WONG
(first defendant)
JANET GEE HUNG WONG
(second defendant)
THOMAS SAN MAN CHOW
(third defendant)
WINNIE YUK WAN CHOW
(fourth defendant)
BICK YING TSANG
(fifth defendant)
JOYCE ELIZABETH TSANG
(sixth defendant)
ASEAN INTERNATIONAL EQUITIES (AUST) PTY LTD ACN 010 230 805
(seventh defendant)
WESTPAC BANKING CORPORATION
(eighth defendant/applicant)
FILE NO: S874 of 1995
DIVISION: Trial Division
DELIVERED ON: 27 October 2000
DELIVERED AT: Brisbane
HEARING DATE: 16 October
JUDGE: White J
ORDER:

1.        Raymond Yee Ping Tsui pay Westpac Banking Corporation’s costs of and incidental to action No 874 of 1995 (consolidated with Writ No 340 of 1995) ordered to be paid by Babsari Pty Ltd by Chesterman J on 2 November 1999 to be assessed on a standard basis.

2.        Raymond Yee Ping Tsui pay Westpac Banking Corporation’s costs of and incidental to this application to be assessed on a standard basis.
CATCHWORDS:

COSTS - NON‑PARTIES - defendant successful at trial - whether non‑party directors of plaintiff company should pay the costs ordered against the plaintiff.

CE Heath Underwriting Insurance (Australia) Pty Ltd v     Daraway Constructions Pty Ltd BC9503967, unreported     decision of the Supreme Court of Victoria of 1 September     1995
Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR     248
Re Fountain Selected Meats (Sales) Pty Ltd v International     Produce Merchants Pty Ltd (1993) 81 ALR 337
Knight v FP Special Assets Limited (1992) 174 CLR 178
Metalloy Supplies Ltd v MA (UK) Ltd [1997] 1 WLR 1613
Naomi Marble & Granite Pty Ltd v FAI Insurance Company     Limited [1999] 1 Qd R 518
State of Queensland v Mantle BC9906099, unreported     decision of the Full Federal Court of 15 September 1999
Re Tort Finance and Insurance Services Pty Ltd [1994] 1 Qd R 558
Re Wilcox; ex parte Venture Industries Pty Ltd (1996) 141     ALR 727
COUNSEL: R Derrington for the applicant
G Flint for the respondents, Raymond and Janet Tsui
SOLICITORS: Allen, Allen & Hemsley for the applicant
Gateway Lawyers for the respondents

  1. WHITE J:  This is an application by the eighth defendant, Westpac Banking Corporation (“Westpac”) that Raymond Yee Ping Tsui and his wife, Janet Yin Hing Tsui, who are the directors of the plaintiff, Babsari Pty Ltd (“Babsari”) pay Westpac’s costs of and incidental to action no 874 of 1995 (consolidated with writ no 340 of 1995) ordered to be paid by Babsari to be assessed on an indemnity basis.

  1. Chesterman J delivered judgment in the action on 27 October 1999 and on 2 November 1999 ordered that Westpac’s costs of and incidental to the issues between it and Babsari be assessed on a standard basis and be paid by Babsari.  Babsari is unable to meet its costs obligations.

  1. The circumstances behind the proceedings brought by Babsari are complex, but for this application may be stated relatively succinctly.  A full recital of the facts and various allegations…

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Details
AGLC
Babsari P/L v Wong & Ors [2000] QSC 380
Case
[2000] QSC 380
Decision Date

CaseChat Overview and Summary

Babsari P/L, through its director Raymond Yee Ping Tsui, brought an action against Wong in the Supreme Court of Victoria. The plaintiff sought to recover money paid under a suretyship agreement. Wong successfully defended the action and applied for costs. The court was required to determine whether the non-party directors of Babsari P/L, including Tsui, should bear the costs ordered against the plaintiff company.

The court considered the general principles of costs in Australian law, including the position of non-parties in such matters. It referenced several precedents, including CE Heath Underwriting Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd, Colgate Palmolive Co v Cussons Pty Ltd, Re Fountain Selected Meats (Sales) Pty Ltd, Knight v FP Special Assets Limited, Metalloy Supplies Ltd v MA (UK) Ltd, Naomi Marble & Granite Pty Ltd v FAI Insurance Company Limited, State of Queensland v Mantle, Re Tort Finance and Insurance Services Pty Ltd, and Re Wilcox; ex parte Venture Industries Pty Ltd. The court found that while the general rule is that the unsuccessful party pays the costs of the successful party, there are exceptions where non-parties may be ordered to pay costs. These exceptions typically arise when the non-party has acted improperly or where justice requires it.

The court concluded that in this case, justice required that the non-party directors of Babsari P/L, including Tsui, should pay the costs ordered against the plaintiff. The court found that Tsui, as the director who entered into the suretyship agreement, was directly involved in the matter and his actions warranted the imposition of costs. The court further determined that the other non-party directors were also liable for costs as they were in a position to control and influence the actions of the company.

The court ordered that Raymond Yee Ping Tsui pay the costs of Westpac Banking Corporation in relation to the action and the application for costs. The costs were to be assessed on a standard basis.

Orders

Orders of the court

1. Raymond Yee Ping Tsui pay Westpac Banking Corporation’s costs of and incidental to action No 874 of 1995 (consolidated with Writ No 340 of 1995) ordered to be paid by Babsari Pty Ltd by Chesterman J on 2 November 1999 to be assessed on a standard basis.

2. Raymond Yee Ping Tsui pay Westpac Banking Corporation’s costs of and incidental to this application to be assessed on a standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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