| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2024 01966
| JIANG, MING | Plaintiff |
| v | |
| E SCAUNICH NOMINEES PTY LTD (ACN 005 315 060) as Trustee of the E & FA Scaunich Unit Trust No.2 (ABN 18 147 866 270) (and others according to the attached Schedule) | Defendant |
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JUDGE: | Harris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 April 2025 |
DATE OF RULING: | 3 June 2025 |
CASE MAY BE CITED AS: | Jiang v E Scaunich Nominees Pty Ltd (No 1) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 297 |
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PRACTICE AND PROCEDURE – Costs – Interlocutory application for freezing orders – Application dismissed by consent and not resolved on merits – Whether it was unreasonable to bring and maintain application – Whether circumstances warrant departure from general practice of ordering that costs be costs in the proceeding – Supreme Court (General Civil Procedure) Rules 2015, r 63.20.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Simon Frauenfelder | Colin Biggers & Paisley |
| For the Defendant | Mr Charles Shaw KC with Mr Matthew Tennant | Thomson Geer |
TABLE OF CONTENTS
The context of the application......................................................................................................... 1
Principles on costs of an application which is not resolved on the merits............................. 2
The parties’ positions in summary................................................................................................. 4
Facts relevant to the issuing of the freezing order summons and Mr Jiang’s response...... 4
The purchase and sale of the Balwyn Property........................................................................ 5
Correspondence relating to the Balwyn Property sale............................................................ 9
Analysis – it was not unreasonable to bring the freezing order application....................... 10
Conclusion......................................................................................................................................... 14
HER HONOUR:
The context of the application
The primary proceeding in this matter relates to a sale of land contract for property comprising lots of land in Queen Street, Melbourne (Queen Street Property). The plaintiff (Mr Jiang) entered into a contract of sale to purchase the Queen Street Property from the defendant (Scaunich) for $27.5 million. After payment of the deposit Mr Jiang did not settle the sale. The statement of claim alleges that Scaunich, as vendor, did not disclose the existence of various material facts about the property, including matters relating to defects in the property such as anticipated expenses to address works on the property.
Mr Jiang alleges that he rescinded the contract of sale for cause. Scaunich disputed that the contract was validly rescinded. Mr Jiang seeks, in these proceedings, the return of the deposit moneys and damages based on claims made under the Australian Consumer LawandFair Trading Act 2012 (Vic).[1] Scaunich counterclaims, pleading that Mr Jiang repudiated the contract causing Scaunich loss and damage.[2]
[1]Amended Writ and Statement of Claim dated 19 March 2025, Prayer of Relief B, D.
[2]Defence and Counterclaim dated 5 June 2024, [53].
After becoming aware of a sale of a property in Balwyn (Balwyn Property) by Mr Jiang, Scaunich sought information from Mr Jiang about the circumstances of that transaction. Scaunich later, after corresponding with solicitors for Mr Jiang in terms discussed further…
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- Case
- [2025] VSC 297
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether it was unreasonable for Mr Jiang to bring and maintain the interlocutory application for freezing orders, and whether the circumstances warranted a departure from the general practice of ordering that costs be costs in the proceeding. The court was required to consider the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015, particularly rule 63.20, which deals with the costs of interlocutory applications.
In determining the matter, the court considered the nature of the application, the arguments presented by both parties, and the outcome of the application. The court found that while the application was not resolved on its merits, it was not unreasonable for Mr Jiang to bring and maintain the application. The court also considered the circumstances of the case, including the complexity of the commercial dispute, the potential for significant loss or damage if the application was not granted, and the need for the court to intervene to protect the interests of the parties. Based on these factors, the court concluded that it was appropriate to depart from the general practice of ordering that costs be costs in the proceeding, and made an order that the costs of the application be costs in the proceeding, to be paid on an indemnity basis by the plaintiff.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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