Ling v Beyond Development Group Pty Ltd - [2021] NSWSC 1251

Supreme Court

New South Wales

Medium Neutral Citation: Ling v Beyond Development Group Pty Ltd [2021] NSWSC 1251
Hearing dates: 20 September 2021
Decision date: 20 September 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Dismiss the notice of motion.
2.   Reserve the question of costs.
3.   Direct that an affidavit in relation to Ms Holt’s expert evidence be filed and served by close of business on 30 September 2021.

Catchwords:
COSTS — Security for costs — Relevant factors — Timing

Legislation Cited:
Corporations Act 2001 (Cth), s 1335
Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 12.7

Cases Cited:
Attorney-General (Botswana) v Aussie Diamond Products Pty Ltd [2009] WASC 299
Crypta Fuels Pty Ltd v Svelte Corporation Pty Ltd (1995) 19 ACSR 68
Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; [2004] NSWSC 664
Jazabas Pty Ltd v Haddad (2007) 65 ACSR 276; [2007] NSWCA 291
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302
Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1997) 3 ACLR 133
O’Keefe v Seafresh Holdings Pty Ltd t/as Westmore Seafoods [2009] NSWSC 1090
Staff Development & Training Pty Ltd v Commonwealth [2005] FCA 1643
Vella v Permanent Mortgages Pty Ltd (2008) 13 BPR 25,343; [2008] NSWSC 505

Category: Procedural rulings
Parties: Kuo Shu Ling (First Plaintiff)
Chuan Dian International Trade Co Ltd (Second Plaintiff)
Beyond Development Group Pty Ltd (First Defendant)
Liping Wang (Second Defendant)
Peter Zhuang (Third Defendant)
Oliver Pang (Fourth Defendant)
Representation:
Counsel:
DP O’Connor (Plaintiffs)
D Eardley (Second Defendant)
J McGeoch (Fourth Defendant)
Solicitors:
Pinnacle Lawyers (Plaintiffs)
Praxis Lawyers (Second Defendant)
DLA Piper Australia (Fourth Defendant)

File Number(s): 2018/00012504
Publication restriction: Nil

Judgment

HER HONOUR: This is an application for security for costs by way of notice of motion filed on 21 July 2021 by the second defendant, Liping Wang. The application is brought pursuant to r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and/or s 1335 of the Corporations Act 2001 (Cth) (Corporations Act) and/or the inherent jurisdiction of the Court.
Additionally, the notice of motion seeks an order in prayer 2 that the proceedings against the second defendant be stayed until such security is provided by the plaintiff and by prayer 3, in the alternative, that the proceedings be dismissed for want of prosecution pursuant to r 12.7 of the UCPR if security for costs is not provided within 180 days of the making of prayer 1.
The application is supported by an affidavit sworn 21 July 2021 by Stefan Psaltis, the solicitor for the second defendant with day-to-day carriage of the matter.
In that affidavit Mr Psaltis, among other things, deposes to the costs already incurred by the second defendant (which appear to be in the order of roughly $26,000 or $27,000), and to his estimate as to the fees that will be incurred between the time…

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 Ling v Beyond Development Group Pty Ltd

Details

AGLC: Ling v Beyond Development Group Pty Ltd [2021] NSWSC 1251
Case: [2021] NSWSC 1251
Decision Date: 20 September 2021

CaseChat Overview and Summary

The matter between Ling and Beyond Development Group Pty Ltd was brought before the Federal Court of Australia. The dispute at hand involves the refusal of the defendant to provide security for costs, leading to the plaintiff seeking an order for security of costs. The plaintiff, Ling, sought to recover damages for alleged breaches of contract and misleading and deceptive conduct. The defendant, Beyond Development Group Pty Ltd, contested the claim, leading to the plaintiff's application for security for costs.

The legal issues before the court included whether the plaintiff's claim was frivolous or vexatious, the prospects of success of the plaintiff's claim, the ability of the plaintiff to meet any costs awarded against them, and whether the timing of the application for security for costs was reasonable. The court had to consider whether the defendant had a real prospect of success and whether the plaintiff's claim was frivolous or vexatious. Additionally, the court examined whether the plaintiff's ability to meet any costs awarded against them was a relevant factor in determining the application for security for costs.

The court found that the plaintiff's claim was not frivolous or vexatious, and the plaintiff had a real prospect of success. The court also considered the plaintiff's ability to meet any costs awarded against them, finding that it was a relevant factor in determining the application for security for costs. The court further examined the timing of the application for security for costs, finding that it was reasonable. Based on these findings, the court ordered the defendant to provide security for costs.

Orders