Kekecial v Aus Made (costs)

[2025] VCC 1114

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-20-05300

KEKECIAL PTY LTD

Plaintiff

v

AUS MADE EXPRESS INTERNATIONAL GROUP PTY LTD

and

HUIFENG LIU

First Defendant

Second Defendant

---

JUDGE:	HER HONOUR JUDGE MARKS
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	8 August 2025
CASE MAY BE CITED AS:	Kekecial v Aus Made (costs)
MEDIUM NEUTRAL CITATION:	[2025] VCC 1114

RULING
---

COSTS – Where multiple issues – Mixed success by parties – No order as to costs

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff and Defendants by counterclaim	Mr D J Williams KC with Mr L E P Magowan	Lin Legal & Associates
For the Defendants and Plaintiffs by counterclaim	Mr C H Truong KC with Mr S Clement	JB Solicitors

HER HONOUR:

1On 30 June 2025, I delivered reasons for judgment in this proceeding: Kekecial Pty Ltd  v Aus Made Express International Group Pty Ltd [2025] VCC 821 (the Reasons.)

2I now deal with the final order, including costs, to be made in the matter.  This decision follows on from the Reasons,  and assumes that it has been read.  I use the same definitions and names for the various parties.

3I directed that the parties either agree on final orders or file affidavit material and submissions, following which I would decide the issue of costs and the form of final orders on the papers, unless I considered a hearing was required.

4The parties have filed submissions.  The Kekecial parties filed submissions on 7 July 2025 and 15 July 2025.  The Aus Made parties filed submissions on 7 July 2025 and 14 July 2025.

5Paragraphs 564-566 of the Reasons provide:

564      I will give judgment for Kekecial on its claim.

565      I will order that Aus Made pay Kekecial:

(a)  $291,931.89 and interest;

(b)  $400,000 and interest;

(c)  $1.00.

566      I will dismiss the counterclaim.

6The principal amount that Aus Made is to pay Kekecial is $691,931.89.

7I accept Kekecial’s submissions that  interest should accrue on this from 28 April 2020 (being the date the sum of $291,931.89 was demanded: see Reasons [253]).  Aus Made did not argue to the contrary.

8$691,931.89 was due, as a debt or sum certain, from the date it was demanded until the date of judgment. 

9Kekecial calculated the interest on that to 7 July 2025 at $360,242.25, and said that interest continued to accrue at $189.57 per day in their 7 July submissions at [3]. Aus Made did not disagree with that calculation in their submissions. I accept that this is the amount due. The total amount of interest from 28 April 2020 to 8 August 2025 is $366,498.06.

10The Kekecial parties  seeks an order that the Aus Made parties pay the Kekecial parties’ costs of, and incidental to, the proceedings, to be taxed by the Costs Court on a standard basis in default of agreement.

11The Aus Made parties, on the other hand, seek costs on two alternative bases.

12The first is on the basis of a broadbrush approach as to the outcome of trial, time it says was occupied by the issues, and the outcomes of the issues.  Under this approach, it proposes that:

(a)    Kekecial pays 40% of Aus Made’s costs of the proceeding;

(b)    Kekecial pays Haha’s costs of the proceeding;

(c)    Aus Made pays Andy’s costs of the counterclaim.

13Alternatively, the Aus Made parties suggest costs can be assessed on the basis of the outcome of what it describes as each of the primary issues, derived from the final list of issues (being Version 7, provided on 4 October 2024, referred to in the Reasons at [35]).  Under this analysis, it proposes that:

(i)Aus Made pay Kekecial’s costs of issues relating to the alleged $400,000 loan, including issues 1-3 of the list of issues;

(ii)Kekecial pay Haha’s costs of issues relating to the alleged $400,000 loan, including issues 1-3 of the  list of issues;

(iii)Aus Made pay Kekecial and Andy’s costs of issues relating to the alleged order for 320 big parent rolls, including issues 4-7 of the list of issues;

(iv)Kekecial pay Aus Made and Haha’s costs of issues relating to the claims regarding the packaging, labelling and sale of the sanitising paper rolls, including issues 8-14 of the list of issues.

14The power to awards costs is discretionary. The general principles to be applied were not in dispute.  As stated in Chen v Chan [2009] VSCA 233 at [10]:

(1)The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.

(2)The Rules of Court permit significant flexibility in determining questions of costs. In particular, the Court is entitled to examine the realities of the case and will attempt to do ‘substantial justice’ as between the parties on matters of costs.

(3)Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.

(4)A Court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.

(5)Where a Court determines to make an order apportioning costs, then it does so primarily as ‘a matter of impression and evaluation,’ rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.

(6)Where a number of parties have had the same representation, there is a ‘rule of thumb’ as to the apportionment of costs, namely that, where some of those parties have been successful and others have not, each successful party is only entitled to his or her proportion of the costs incurred on behalf of all, plus the costs, if any, incurred exclusively on his or her behalf. The primary issue for determination in such a case is that of fairness as between the parties, having regard to the manner in which the trial, or appeal, has been conducted.

…

[Citations omitted]

15Kekecial’s broad submission is that ‘costs following the event’ should be interpreted as Kekecial has been successful in obtaining judgment for a significant sum (over a million dollars when interest is taken into account), and so it should have the costs of the entire proceeding.

16I disagree that it obtaining judgment for that sum is ‘the event’.  This complicated proceeding, which took 23 sitting days over the span of almost a year (see Reasons at [41]), is a case that involved a multiplicity of issues, with mixed success enjoyed by both the Kekecial parties and the Aus Made parties.

17In all the circumstances of this case, I will make an order apportioning the costs in a broadbrush fashion.  I do so primarily as a ‘matter of impression and evaluation’ rather than with arithmetical precision, having considered the matters referred to in Chen v Chan at [10].

18Broadly speaking, as I set out in the Reasons, the key issues for determination fell comfortably into two parts.  These are detailed at [7]-[24] of the Reasons.  In relation to these, I make the following comments:

(a)   BP rolls issues – Kekecial was successful in obtaining judgment for the principal sum of $691,931.89.  Correspondingly, Aus Made was unsuccessful in its counterclaim against Aus Made and Andy, seeking approximately  $680,000.

(b)   Regulatory issues – The regulatory issues constituted claims by Kekecial in which it sought RMB 8,138,350 (approximately $1,779,971.25 AUD): Reasons [447]-[454]. Although Kekecial successfully established breach of contract, I awarded it only $1 in nominal damages because it had not established its claim for loss and damage: Reasons [441].

19I disagree with the Kekecial parties’ submission that it was ‘substantially successful’ with the Regulatory issues part of their claim.

20As the Aus Made parties submit: 

21. The awarding of nominal damages is no longer ‘a mere peg on which to hang costs’, as it once may have been.[See, G E Dal Pont, Law of Costs (LexisNexis, 5th edition, 2021) at [8.40].] That is, being awarded nominal damages is no longer treated as succeeding on an event, for costs purposes.

22. Rather, as the learned author Dal Pont states in Law of Costs: “the modern view seems to be the converse of the historical one, such that ‘the event will be regarded as going against a party who recovers nominal damages only’.” [Dal Pont, at [8.40]] The better view is that each case turns on its own facts; being what the ‘justice of the case requires’.

23.  In MA & J Tripodi Pty Ltd v Swan Hill Chemicals Pty Ltd [[2019] VSCA 46], the Court of Appeal stated:

[153]Where a court determines to make an order apportioning costs, it does so primarily as a matter of impression and evaluation, rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.

[154] Where a plaintiff seeks damages for breach of contract and establishes the existence of a contract and a breach of it by the defendant and is awarded only nominal damages because the plaintiff is not able to prove that any loss resulted from the breach, it is open to the court to treat the plaintiff as not being the successful party for costs purposes. Where the court so characterises the plaintiff, it might make one of a number of costs orders, including that there be no order as to costs, that the defendant pay a proportion of the plaintiff’s costs or that the plaintiff pay a proportion of the defendant’s costs. However, there are no fixed rules as to the appropriate costs order in that or any other situation. Ultimately, the court must be guided by what the justice of the case requires.

24. In NCON Australia Ltd v Spotlight Pty Ltd (No 7) [[2014] VSC 25], Robson J held:

[23]I accept that the plaintiff succeeded in establishing the contract and succeeded in establishing its breach despite the fierce opposition of the defendant. Nevertheless, the sole object of the litigation was to recover damages. There was no alternative or further objective to the proceeding other than the recovery of damages. Therefore, as indicated above, in my view, the defendant was the successful party in the litigation and is entitled to its costs. (emphasis added)

25. Or, in the words of the Western Australian Court of Appeal in Motium Pty Ltd v Arrow Electronics Australia Pty Ltd:

While each case must depend upon its own facts, where it is not a primary purpose of proceedings simply to establish or vindicate some legal right but the primary purpose is to recover substantial damages, ordinarily an award of nominal damages will not entitle a party to the costs of the proceedings: see Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166 [9]. In such a case, the party has obtained something of no real use to them and something which, if they had known it was all that was available, they would not have brought proceedings to recover. It would be contrary to modern notions of the efficient and cost-effective use of judicial resources to enable a party to recover its costs for a pyrrhic victory, having substantively failed in the action. (emphasis added)

[Most citations omitted]

21I consider that both sets of issues took up a similar amount of time at trial, broadly speaking.  Although Kekecial was successful on one claim,  it was  not successful on the other.

22It is appropriate in the circumstances of this case to make no order for costs as between the Aus Made parties and the Kekecial parties.

23I am not satisfied that Kekecial should pay Haha’s costs of defending the claims brought against him (the Claimed Representations claims), as the Aus Made parties seek.

24They submit that Haha, whilst represented by the same legal representatives as Aus Made throughout the proceeding, ceased being a director of Aus Made on 31 October 2022, and its sole shareholder now is Quijia Zhang, who was not a party to the proceeding.  This is evidenced in Court Book pages 2530-2535.

25Kekecial submits  that all the invoices for Aus Made parties’ legal fees were directed to Aus Made (and so not incurred by Haha). The invoices are exhibited to an affidavit of Feng Lin, the solicitor for the Kekecial parties.  Kekecial submits, that Haha ‘would not have incurred any costs over and above the costs of Aus Made in relation to Kekecial’s claim’.  As against that, without putting in any evidence as to arrangements for payment of costs, the Aus Made parties simply say that this is a matter for taxation.

26All the claims Kekecial made were made against Aus Made, with the  representations claims also made against Haha. I am satisfied that the overlap in work done would have been complete, or almost complete, in that the work done for Haha needed to be done for Aus Made in any event.

27I consider anything additional would have been de minimus.

28The Aus Made parties say that even though the costs may be de minimus, Haha should not be deprived of the consequences of his success. 

29However, as against any minor amount of legal fees Haha might personally have incurred, I take into account that part of Haha’s defence, together with that of Aus Made, involved a claim for set-off of any amount found due under the counterclaim.  The counterclaim was entirely unsuccessful.

30I am not satisfied that Haha in fact incurred any separate liability for costs. The invoices were sent to Aus Made. He was a shareholder and the sole director of Aus Made until 31 October 2022. Quijia Zhang, the current sole shareholder and director, is his wife. Evidence given in the proceeding made it clear that their business affairs are significantly entwined. The invoices show that Aus Made was the party billed, and there is no evidence that Haha incurred any costs.

31The Kekecial parties have not sought an order that Andy’s costs be paid. 

32On 1 June 2023, some costs were reserved in relation to an application Aus Made, brought on 20 February 2023: Kekecial Pty Ltd v Aus Made Express International Group Pty Ltd and Ors (No 2) [2023] VCC 876. At paragraph [34], Cosgrave J said:

… I am prepared to reserve the defendants’ rights to claim recovery of its costs from the plaintiff’s solicitors or Yang, or both. I note that any such application, if it is to be brought, should be brought on proper notice and supported by relevant affidavit material…

33The Aus Made parties refer to the fact that these costs were reserved in their 7 July 2025 submissions, at [9] and [10]. However, they do not make any application in relation to those reserved costs, nor has any relevant affidavit material been filed in relation to those reserved costs.

34I make no order in relation to those reserved costs.

Order

35I order:

1. Judgment for Kekecial against Aus Made.

2. Aus Made pay Kekecial:

a) $691,931.89 and interest of $366,498.06; and

b) $1.00

3. The counterclaim is dismissed.

4. The proceeding is otherwise dismissed.

5. No order as to costs of the proceeding.

---

Certificate

I certify that these 9 pages are a true copy of the reasons for ruling of Her Honour Judge Marks, delivered on 8 August 2025.

Dated: 8 August 2025

Leo Arthur

Associate to Her Honour Judge Marks