Chen and others v The Australian Shaanxi Chamber of Commerce Incorporated and Others

[2020] NSWSC 1896

Supreme Court

New South Wales

Medium Neutral Citation:

Chen and others v The Australian Shaanxi Chamber of Commerce Incorporated and Others [2020] NSWSC 1896

Hearing dates:

On the papers

Decision date:

16 December 2020

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

See para [10]

Catchwords:

COSTS — Party/Party — Whether costs should follow the event — Basis of quantification — Whether costs should be paid on an ordinary or indemnity basis — Where defendants’ motion seeking dismissal of plaintiffs’ claim or permanent stay dismissed — Where no conduct on the part of the plaintiffs that would disentitle them to their costs

Cases Cited:

Chen & Others v The Australian Shaanxi Chamber of Commerce Incorporated and Others [2020] NSWSC 1719

Texts Cited:

n/a

Category:

Costs

Parties:

Yan Hong (Amy) Chen (first plaintiff)
Jianguo Guo (second plaintiff)
APA International Group Pty Ltd (third plaintiff)
Ping Cao (fourth plaintiff)
Secura Scaffold Services Pty Ltd (fifth plaintiff)

The Australian Shaanxi Chambers of Commerce Incorporated (first defendant)
San Chun Zhong (second defendant)
Jiaya Dong (third defendant)
Wen Wang (fourth defendant)
Li Ji (fifth defendant)
Tao Zhang (sixth defendant)
Chao Zhu (seventh defendant)
Shaohui Xie (eighth defendant)

Zhengang Yun (ninth defendant)
Daiyong Chen (tenth defendant)
Min Pan (eleventh defendant)
Lili Ren (thirteenth defendant)
Yufei Wang (fourteenth defendant)
Weihong Zhao (fifteenth defendant)
Jingwen Yao (sixteenth defendant)

Representation:

Counsel:
A Norrie (plaintiffs)
S Duggan (second, third and ninth defendants)

Solicitors:
Herald Legal (plaintiffs)
KWL Lawyers (second, third and ninth defendants)

File Number(s):

2020/48980

Publication restriction:

Nil

Judgment – costs on the papers

1. On 3 December 2020 I dismissed an application by the 2^nd, 3^rd and 9^th defendants seeking the dismissal of the proceedings on the basis that they were an abuse of process and further that they be permanently stayed (Chen & Others v The Australian Shaanxi Chamber of Commerce Incorporated and Others [2020] NSWSC 1719).

2. The substantive matter is now fixed for hearing on 25 and 26 March 2021. What is now before the court is the question of the costs of the motion.

3. The plaintiffs seek costs on an indemnity basis, alternatively on an ordinary basis.

4. The defendants submit that in the circumstances the plaintiffs should pay the defendants’ costs, alternatively each party should pay their own costs.

5. The plaintiffs submit that the motion had no prospects of success given the high standard required. Further that the defendants should not have agreed to orders which permitted the plaintiffs an opportunity to file the further amended statement of claim.

6. On the other hand the defendants submit that although costs would normally follow the event there is a wide discretion on the part of the court and here by reason of some of the comments made in the judgment the plaintiffs should not get their costs. In other words the plaintiffs’ conduct should disentitle them from obtaining an award of costs.

7. In my view the defendants should pay the plaintiffs’ costs of the motion on an ordinary basis.

8. The pejoratives used to describe aspects of the plaintiffs’ conduct in the litigation has of course already been taken into account in the arguments concerning the notices to produce subpoenas and the like. Costs were awarded in various interlocutory skirmishes. Whilst those terms were in my view apposite in context of the judgment they did not amount to sufficient proof of the necessary predominant purpose.

9. It does not follow that conduct can or should in the circumstances deprive the plaintiffs of their costs from successfully defending a motion to strike out their claim. Equally I do not consider the defendants’ motion could be described as hopeless. Whilst they did not move immediately to stay the proceedings they were entitled in my view carefully to consider their position and all relevant circumstances.

10. In my view costs ought to follow the event and the plaintiffs should get their costs of the motion on an ordinary basis.

Decision last updated: 22 December 2020