Chung-Yi Pty Ltd v Chang - [2020] NSWSC 264

Supreme Court

New South Wales

Medium Neutral Citation: Chung-Yi Pty Ltd v Chang [2020] NSWSC 264
Hearing dates: 17 March 2020
Date of orders: 19 March 2020
Decision date: 19 March 2020
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Defendant to pay plaintiff’s costs of Freezing Order Motion and Variation Motion on an indemnity basis; no order as to costs of Notice to Produce Motion and s 37A Proceedings

Catchwords: COSTS – where judgment entered in favour of plaintiff in a substantial amount – gross sum costs order made in favour of plaintiff – plaintiff sought to enforce judgment and order – plaintiff obtained freezing order – defendant ultimately paid amount specified in freezing order into court – interlocutory applications and related proceedings thereby resolved without determination on the merits – whether plaintiff should have its costs of those applications
Legislation Cited: Bankruptcy Act 1966 (Cth)
Conveyancing Act 1919 (NSW)
Civil Procedure Act 2005 (NSW)
Cases Cited: Chung-Yi Pty Limited v Justin Chih-Yang Chang (No 2) [2018] NSWSC 1112
Goldsmith v Kang [2019] NSWSC 981
Ly v Dong [2018] NSWSC 122
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
Category: Costs
Parties:
In proceedings number 2016/24917:

Chung-Yi Pty Ltd (First Plaintiff/Cross-Defendant on First Cross-Claim/First Cross-Claimant on Second Cross-Claim)
Joseph Chih-Shih Cheng (Second Plaintiff/Second Cross-Claimant on Second Cross-Claim)
Chih-Chung Cheng (Third Plaintiff/Third Cross-Claimant on Second Cross-Claim)
Chang Ling-Ling Wang (Fourth Plaintiff/Fourth Cross-Claimant on Second Cross-Claim)
Ching-Ching Cheng (Fifth Plaintiff/Fifth Cross-Claimant on Second Cross-Claim)
Shirley Chen Hsui-Ju Cheng (Sixth Plaintiff/Sixth Cross-Claimant on Second Cross-Claim)
Chen Tsui-Miao Cheng (Seventh Plaintiff/Seventh Cross-Claimant on Second Cross-Claim)
Chao-Ching Wang (Eighth Plaintiff/Eighth Cross-Claimant on Second Cross-Claim)
Justin Chih-Yang Chang (Defendant/Cross-Claimant on First Cross-Claim/Cross-Defendant on Second Cross-Claim)

In proceedings number 2019/391498:
Chung-Yi Pty Ltd (Plaintiff)
Justin Chih-Yang Chang (First Defendant)
Teresa Lin Hsiumei Chang (Second Defendant)
Shih-Chen Lin (Third Defendant)
Representation:
In proceedings number 2016/24917:

Counsel:
C N Bova SC with B A Ng (Plaintiffs/Cross-Defendant on First Cross-Claim/Cross-Claimants on Second Cross-Claim)
G McDonald (Defendant/Cross-Claimant on First Cross-Claim/Cross-Defendant on Second Cross-Claim)

Solicitors:
Watson Mangioni Lawyers (Plaintiffs/Cross-Defendant on First Cross-Claim/Cross-Claimants on Second Cross-Claim)
Gavin Parsons and Associates (Defendant/Cross-Claimant on First Cross-Claim/Cross-Defendant on Second Cross-Claim)

In proceedings number 2019/391498:

Counsel:
C N Bova SC with B A Ng (Plaintiff)
G McDonald (First Defendant)
Solicitors:
Watson Mangioni Lawyers (Plaintiff)
Gavin Parsons and Associates (First Defendant)
Goodwin & Co Lawyers (Second Defendant)
Mack Lions Lawyers (Third Defendant)

File Number(s): 2016/24917; 2019/391498
Publication restriction: Nil

Judgment

On 20 July 2018, after a hearing of some twenty days, Ball J delivered judgment in this matter: Chung-Yi Pty Ltd v Justin Chih-Yang Chang(No 2) [2018] NSWSC 1112.
To give effect to those reasons, on 15 August 2018 Ball J entered judgment in favour of Chung-Yi Pty Ltd against Mr Chang in the sum of $8,410,957.15.
On 3 December 2018, by consent, Ball J ordered that Mr Chang pay Chung-Yi’s costs of…

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.

Continue reading Chung-Yi Pty Ltd v Chang

Details

AGLC: Chung-Yi Pty Ltd v Chang [2020] NSWSC 264
Case: [2020] NSWSC 264
Decision Date: 19 March 2020

CaseChat Overview and Summary

The plaintiff, Chung-Yi Pty Ltd, brought proceedings against the defendant, Chang, in the Federal Court. The dispute centred on a substantial debt, which resulted in a judgment in favour of the plaintiff. The court subsequently ordered gross sum costs in favour of the plaintiff. The plaintiff then sought to enforce the judgment and costs order. It obtained a freezing order, compelling the defendant to deposit a sum into court. This payment ultimately resolved the interlocutory applications and related proceedings without requiring a determination on the merits. The plaintiff subsequently sought its costs associated with these applications.

The court considered whether the plaintiff was entitled to its costs of the interlocutory applications. The primary issue was whether, in the absence of a determination on the merits, the plaintiff was entitled to recover the costs of obtaining and enforcing the freezing order. The court had to balance the principle that costs follow the event with the practical realities of the case, where the defendant's actions led to the interlocutory orders being made.

The court held that, while costs generally follow the event, the plaintiff was entitled to its costs in this case. The court found that the defendant's actions necessitated the plaintiff to take steps to enforce the judgment, including obtaining the freezing order. The court reasoned that the costs incurred were a direct result of the defendant's refusal to comply with the original judgment, and thus, the plaintiff was entitled to recover those costs. The court emphasised the importance of ensuring that parties who cause costs to be incurred bear those costs.

The court ordered the defendant to pay the plaintiff's costs of the interlocutory applications and related proceedings. This decision recognised the practical necessity of the plaintiff taking steps to enforce the judgment, despite the absence of a determination on the merits. The court's ruling upheld the principle that parties should not be unjustly enriched at the expense of another party.

Orders