Liu v Sha - [2022] NSWCA 192

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Liu v Sha [2022] NSWCA 192
Hearing dates: 26 September 2022
Date of orders: 26 September 2022
Decision date: 29 September 2022
Before: Kirk JA
Decision:
1. The appellant to provide within 14 days security in the sum of $20,000 for the respondent’s costs of the appeal by payment of that amount into court.
2. The appeal be stayed until the appellant has complied with order 1 above.
3. The appellant to pay 60% of the respondent’s costs of the motion filed on 8 August 2022.

Catchwords:
COSTS — Security for costs — Relevant factors — Strength of the claim — Degree of unreality about claims in light of undisputed facts — Discretion — Mere non-payment of judgment debt does not indicate stultification of appeal — Lack of evidence of financial position of either party — Order not to be refused purely on the basis that claimant of security may have been well-resourced

Legislation Cited:
Uniform Civil Procedure Rules, r 51.50

Cases Cited:
Brown v King [2022] NSWCA 75
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240

Category: Procedural rulings
Parties:
Hua Liu (Appellant; respondent on the motion)
Yunlong Sha (Respondent; applicant on the motion)
Representation:
Counsel:

H Zhao (Appellant; respondent on the motion)

T Rice (Respondent; applicant on the motion)

Solicitors:

Juris Cor Legal (Appellant; respondent on the motion)
Xiao Lawyers (Respondent; applicant on the motion)

File Number(s): 2022/00097044
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Civil

Citation:

Sha v Liu [2022] NSWSC 325

Date of Decision:

24 March 2022

Before:

Leeming JA

File Number(s):

2020/00084727

JUDGMENT

The respondent in this appeal, Mr Yunlong Sha (the respondent), applied for security for costs in the amount of $35,000 pursuant to UCPR r 51.50. At the completion of the hearing of the application on 26 September 2022 I made the following orders:

The appellant to provide within 14 days security in the sum of $20,000 for the respondent’s costs of the appeal by payment of that amount into Court.

The appeal be stayed until the appellant has complied with order 1 above.

The appellant to pay 60% of the respondent’s costs of the motion filed on 8 August 2022.

What follows is the reasons for making those orders.
The principles relating to security for costs in this Court are well established, were not in dispute, and it is not necessary to repeat them. I summarised some of those principles in Brown v King [2022] NSWCA 75 at [6]-[10] and [50]-[54].
Four issues arose on the application:

whether there were special circumstances within the meaning of r 51.50;

if so, whether the Court’s discretion to grant security should be exercised;

if so,…

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 Liu v Sha

Details

AGLC: Liu v Sha [2022] NSWCA 192
Case: [2022] NSWCA 192
Decision Date: 29 September 2022

CaseChat Overview and Summary

In *Liu v Sha*, the appellant sought to appeal a judgment against them, but the respondent applied for an order that the appellant provide security for the respondent's costs of the appeal. The primary issue before Kirk JA was whether to grant the respondent's application for security for costs.

The court was required to determine whether there were grounds to order the appellant to provide security for the respondent's costs of the appeal. This involved considering the strength of the appellant's appeal, the degree of unreality in the claims made, and whether the mere non-payment of a prior judgment debt was sufficient to indicate that the appeal was without merit or that the appellant was attempting to stultify the appeal. The court also had to consider the financial positions of both parties, or the lack of evidence regarding those positions, and whether the respondent's own financial resources should preclude an order for security.

Kirk JA reasoned that while the non-payment of a judgment debt alone was not determinative, the appellant's claims in the appeal appeared to have a degree of unreality when viewed against undisputed facts. The court noted the absence of evidence regarding the financial standing of either party, but this did not preclude an order for security, particularly where the claimant of security might be well-resourced. The court exercised its discretion to order security for costs.

Consequently, the appellant was ordered to provide security for the respondent's costs of the appeal in the sum of $20,000 within 14 days by payment into court. The appeal was stayed until this order was complied with, and the appellant was also ordered to pay 60% of the respondent's costs of the motion filed on 8 August 2022.

Orders

Orders of the court

1. The appellant to provide within 14 days security in the sum of $20,000 for the respondent’s costs of the appeal by payment of that amount into court.

2. The appeal be stayed until the appellant has complied with order 1 above.

3. The appellant to pay 60% of the respondent’s costs of the motion filed on 8 August 2022.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Liu v Sha [2022] NSWCA 192
Hearing dates:	26 September 2022
Date of orders:	26 September 2022
Decision date:	29 September 2022
Before:	Kirk JA
Decision:	1. The appellant to provide within 14 days security in the sum of $20,000 for the respondent’s costs of the appeal by payment of that amount into court. 2. The appeal be stayed until the appellant has complied with order 1 above. 3. The appellant to pay 60% of the respondent’s costs of the motion filed on 8 August 2022.
Catchwords:	COSTS — Security for costs — Relevant factors — Strength of the claim — Degree of unreality about claims in light of undisputed facts — Discretion — Mere non-payment of judgment debt does not indicate stultification of appeal — Lack of evidence of financial position of either party — Order not to be refused purely on the basis that claimant of security may have been well-resourced
Legislation Cited:	Uniform Civil Procedure Rules, r 51.50
Cases Cited:	Brown v King [2022] NSWCA 75 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240
Category:	Procedural rulings
Parties:	Hua Liu (Appellant; respondent on the motion) Yunlong Sha (Respondent; applicant on the motion)
Representation:	Counsel: H Zhao (Appellant; respondent on the motion) T Rice (Respondent; applicant on the motion) Solicitors: Juris Cor Legal (Appellant; respondent on the motion) Xiao Lawyers (Respondent; applicant on the motion)
File Number(s):	2022/00097044
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Civil Citation: Sha v Liu [2022] NSWSC 325 Date of Decision: 24 March 2022 Before: Leeming JA File Number(s): 2020/00084727