Babsari P/L v Wong

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.