BCEG International (Australia) Pty Ltd v Xiao (No 2)

BCEG International (Australia) Pty Ltd brought an action against Xiao, in which Xiao was unsuccessful. Xiao then sought to vary the costs order by way of a motion. BCEG International (Australia) Pty Ltd opposed the motion on the basis that the application was made after the relevant time period had lapsed and, as such, was an out-of-time application. Xiao argued that the motion was not out of time because it was filed under the provisions of rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW). The primary judge found that Xiao's motion was not out of time and that the motion should be granted. BCEG International (Australia) Pty Ltd appealed the primary judge's decision.

The court had to consider whether Xiao's application for variation of the costs order was out of time, and if not, whether the application should be granted. The court had to consider the provisions of rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), specifically rule 36.16(3A) and rule 36.16(1). The court also had to consider whether there were any exceptional circumstances that warranted the late filing of the application.

The court found that Xiao's application was not out of time because it was filed under the provisions of rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW). The court found that there were exceptional circumstances that warranted the late filing of the application. The court found that the primary judge had not erred in finding that the application should be granted. The court found that there were no issues of principle that needed to be determined by the court of appeal.

The appeal was dismissed. The costs order of the primary judge was affirmed.