Chen v Golden Land Enterprises Pty Ltd - [2022] NSWSC 19

Supreme Court

New South Wales

Medium Neutral Citation: Chen v Golden Land Enterprises Pty Ltd [2022] NSWSC 19
Hearing dates: 12, 27 October; 17, 29 November; 6 December 2021
Date of orders: 18 January 2022
Decision date: 18 January 2022
Jurisdiction: Equity
Before: Parker J
Decision:
See [58]-[60]

Catchwords:
COSTS – interlocutory costs – costs thrown away by reason of amendments to the plaintiff’s statement of claim – applications by defendants for immediate payment of sums on account and for a stay of the proceedings until payment is made – alleged stultification – Rozenblit v Vainer – defendants’ applications successful, but stay refused – leave to amend conditional upon payment of costs

Legislation Cited:
Competition and Consumer Act 2010 (Cth) Sch 2 – Australian Consumer Law, ss 236, 243
Uniform Civil Procedure Rules 2005 (NSW), rr 42.7, 42.21

Cases Cited:
Mete Corporation Group Pty Ltd v Sarina [2020] NSWSC 1304
Moustapha v Nelson (No 3) [2020] NSWSC 1263
Omutta Pty Ltd v Wilson (No 2) [2019] NSWSC 401
Rhino Rack Australia Pty Ltd v Hub Computing Services Pty Ltd [2021] NSWSC 231
Rozenblit v Vainer (2018) 262 CLR 478
Salmon v Albarran (No 3) [2021] NSWSC 1200
Union Steel Pty Ltd v Union Steel Investments Pty Ltd [2020] NSWSC 1511
Wang v Cai (No 2) [2021] NSWSC 1268

Category: Costs
Parties:
Motion filed 31 July 2021
Golden Land Enterprises Pty Limited (Applicant/First Defendant)
Yongqing Chen (Respondent/Plaintiff)
Motion filed 30 August 2021
Huixia Chen (Applicant/Second Defendant)
Yongqing Chen (Respondent/Plaintiff)
Representation:
Motion filed 31 July 2021
Counsel:
CD Freeman (Applicant/First Defendant)
12, 27 October 2021:
A Rizk (Respondent/Plaintiff)
17, 29 November; 6 December 2021:
M Condon SC (Respondent/Plaintiff)

Solicitors:
Goodwin & Co Lawyers (Applicant/First Defendant)
Broaden Legal (Respondent/Plaintiff)

Motion filed 30 August 2021
Counsel:
J Mack (Applicant/Second Defendant)
12, 27 October 2021:
A Rizk (Respondent/Plaintiff)
17, 29 November; 6 December 2021:
M Condon SC (Respondent/Plaintiff)
Solicitors:
Harris Freidman Lawyers (Applicant/Second Defendant)
Broaden Legal (Respondent/Plaintiff)

File Number(s): 2021/192391
Publication restriction: Nil

Judgment

These proceedings arise out of a claim by the plaintiff, Mr Yongqing Chen, to an interest in a property located at Bickell Road, Mosman (the “Mosman property”). The first defendant is Golden Land Enterprises Pty Limited (“Golden Land”). It is the owner of the property and acts as trustee of a unit trust called the Golden Land Unit Trust (“the Trust”). The second defendant is Ms Huixia Chen, who, despite the common name, is no relation of the plaintiff.
There are two interlocutory matters for determination. The first concerns the costs of an application by Mr Chen for leave to amend his statement of claim. The second concerns two separate applications for security for costs filed by Golden Land and Ms Chen.

Background and procedural history

Golden Land was incorporated in May 2017. The directors of the company upon incorporation were Ms Min Li and Mr Hong Cao (the then husband of the second defendant, Ms Chen). Ms Hong Luo and Mr Bingjiang Feng have also been directors of the company…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 19
Decision Date: 18 January 2022

CaseChat Overview and Summary

The plaintiffs, Chen, filed a claim against Golden Land Enterprises Pty Ltd, alleging a breach of contract and seeking damages. The defendants sought immediate payment of sums on account and a stay of the proceedings until payment is made, claiming that the proceedings were being used to stultify their ability to meet their obligations. The case was heard in the Federal Circuit and Family Court of Australia. The legal issues before the court involved the appropriateness of granting interlocutory costs and whether the defendants' applications for immediate payment and a stay should be granted.

The court considered the principles established in Rozenblit v Vainer and held that the defendants' applications for immediate payment were successful. However, the court declined to grant a stay of the proceedings, finding that the circumstances did not warrant such an extreme measure. The court acknowledged the defendants' financial difficulties but emphasised the importance of adhering to procedural fairness and the need to balance the interests of both parties. The court also granted leave to amend the plaintiffs' statement of claim, but this was conditional upon the payment of costs incurred due to the amendments.

The court ordered that the defendants pay the costs associated with the amendments to the plaintiffs' statement of claim. This included the costs thrown away due to the need for amendments, as well as any additional costs incurred as a result of the defendants' applications. The court emphasised that the defendants' ability to meet their financial obligations was a critical factor in determining the appropriateness of granting leave to amend. The court's decision ensured that the defendants could continue to participate in the proceedings while also maintaining the integrity of the legal process.

Orders