Choo v Zhang (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Choo v Zhang (No 2) [2016] NSWCA 301

Hearing dates:

On the papers

Decision date:

03 November 2016

Before:

McColl JA
Sackville AJA

Decision:

1.   Set aside Orders 4, 5 and 6 made on 5 August 2016.

 

2.   In lieu thereof, make the following orders:

 4. In lieu of Orders 5 and 6 made on 18 January 2016, order that, subject to order 7 made on 18 January 2016, the Respondents’ (Plaintiffs’) claims against Mr Choo (Third Defendant) be dismissed.
5. In lieu of Order 9(c) made on 18 January 2016, there be no order as to the costs of the Respondents’ claim in the District Court against the Appellant, with the intent that each of the parties bears their or his own costs.
6. The Respondents pay 70 per cent of the Appellant’s costs of the appeal.

Catchwords:

COSTS – whether issues severable such that usual rule that costs follow the event should be departed from

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)
rr 20.26; 20.27; 36.16(a); 36.16(3A); 42.1; 42.14
Civil Procedure Act 2005 (NSW) s 98(1)

Cases Cited:

Choo v Zhang [2016] NSWCA 193
Barwon Region Water Authority v Aquatec-Maxcon Pty Ltd (2007) 17 VR 480; [2007] VSCA 186
Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145

Category:

Principal judgment

Parties:

Hin Tee Choo (Appellant)
Guofeng Zhang (First Respondent)
Sharon Zhang (Second Respondent)

Representation:

Counsel:
Mr T Lynch SC / Mr R Chia (Appellant)
Mr J Giles SC / Mr H Grace (Respondents)

    Solicitors:
AHL Legal (Appellant)
Somerville Legal (Respondents)

File Number(s):

2015/376032

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

22 June 2015

Before:

Cogswell DCJ

File Number(s):

2013/316835

Judgment

1. THE COURT: On 5 August 2016, this Court allowed an appeal by the appellant (Mr Choo) against a decision of a Judge of the District Court in favour of the respondents (the Zhangs). [1] The effect of the successful appeal was that a judgment entered by the District Court in favour of the Zhangs against Mr Choo in the sum of $210,798.77 was set aside.

   1. Choo v Zhang [2016] NSWCA 193 (Principal Judgment).

2. The principal ground upon which the appeal was allowed was that the primary Judge erred in finding that a statement made by Mr Choo, a partner of the Zhangs in a chicken shop business, was misleading or deceptive. This conclusion was fatal to the Zhangs’ claim that Mr Choo’s misleading or deceptive conduct induced them to acquire their interest in the business and this caused them to sustain financial loss.

3. The Zhangs have now filed a Notice of Motion seeking to vary certain of the costs orders made by this Court. In the absence of Basten JA on leave, the parties have consented to the motion being dealt with by two members of the Court.

Background

4. The primary Judge had to address a number of…