Nature's Care Holdings Pty Ltd v Chen (No 6)

[2024] NSWSC 604

Supreme Court

New South Wales

Medium Neutral Citation:

Nature’s Care Holdings Pty Ltd v Chen (No 6) [2024] NSWSC 604

Hearing dates:

On the papers

Date of orders:

20 May 2024

Decision date:

20 May 2024

Jurisdiction:

Equity - Commercial List

Before:

Stevenson J

Decision:

Costs of the first, second and third defendants of and incidental to the plaintiffs’ application for interlocutory orders, and costs of the third defendant of and incidental to the plaintiffs’ application to set aside the third defendant’s notice to produce to court, be paid by the plaintiff and third parties jointly and severally; third parties pay the costs of the defendants of the defendants’ notices of motion

Catchwords:

COSTS – third party costs order – where third party costs order made – where dispute as to scope of that third party costs order

Cases Cited:

Chen v Nature’s Care Holdings Pty Ltd [2024] NSWSC 36

Nature’s Care Holdings Pty Ltd v Chen (No 2) [2024] NSWSC 107

Nature’s Care Holdings Pty Ltd v Chen (No 3) [2024] NSWSC 245

Nature’s Care Holdings Pty Ltd v Chen (No 4) [2024] NSWSC 379

Nature’s Care Holdings Pty Ltd v Chen (No 5) [2024] NSWSC 533

Category:

Costs

Parties:

Nature’s Care Holdings Pty Limited (First Plaintiff)
Nature’s Care Group Pty Limited (receivers appointed) (Second Plaintiff)
AJ & Son Investment Pty Limited (receivers appointed) (Third Plaintiff)
Nature’s Care Manufacture Pty Limited (Fourth Plaintiff)
Nature’s Care Global Franchising Pty Limited (Fifth Plaintiff)
Australia Nature’s Care Biotech Co. Ltd (Sixth Plaintiff)
Jina Chen (First Defendant)
Michael Wu (Second Defendant)
AS Investment Vehicle Pty Limited (Third Defendant)
JIC Nature Capital Pte Ltd (First Respondent)
Tamar Alliance Health Ltd (Second Respondent)

Representation:

Counsel:
A Horvath SC / P Afshar / R Jameson (First and Second Defendants)

Solicitors:
Prandium Legal Pty Ltd (First Plaintiff)
William James (Second and Third Plaintiffs)
Herbert Smith Freehills (Fourth and Fifth Plaintiffs)
Norton Rose Fulbright (First and Second Defendants)
Lander & Rogers (Third Defendant)
Hamilton Locke (Respondents)

File Number(s):

2024/23372

JUDGMENT

1. The background of this matter is set out in my earlier judgments. ^[1] I shall use the same abbreviations here.

   1. Chen v Nature’s Care Holdings Pty Ltd [2024] NSWSC 36; Nature’s Care Holdings Pty Ltd v Chen (No 2) [2024] NSWSC 107, Nature’s Care Holdings Pty Ltd v Chen (No 3) [2024] NSWSC 245, Nature’s Care Holdings Pty Ltd v Chen (No 4) [2024] NSWSC 379, Nature’s Care Holdings Pty Ltd v Chen (No 5) [2024] NSWSC 533.

2. On 11 April 2024, I gave judgment in relation to the defendants’ application for a third party costs order against JIC and Tamar.

3. I decided that a third party costs order should be made.

4. A dispute has now arisen between the Wu Parties and JIC and Tamar as to whether, following that decision, the costs orders I made on 15 February 2024, and varied by reason of my judgment of 11 April 2024, extended to:

1. the first, second and third defendants’ costs of the plaintiffs’ unsuccessful application for an injunction from the filing of the application on 19 January 2024 until its dismissal by me on 15 February 2024; or

2. only those costs of and incidental to the hearing before me to continue the interim injunction granted by Rees J on 23 January 2024.

5. What I was dealing with in my judgment of 11 April 2024 was the defendants’ application to vary the order I made on 15 February 2024. That is what the defendants, and relevantly the Wu Parties, sought in their motions.

6. The order I made on 15 February 2024 was:

“The plaintiffs’ application is dismissed with costs.”

7. The “plaintiffs’ application” to which I referred in those orders was the plaintiffs’ application for an injunction to restrain the defendants from enforcing any rights under the Syndicated Facility Agreement.

8. In relation to that application, Rees J had made an interim injunction and I refused to continue that interim injunction.

9. What I dismissed was the entirety of the plaintiffs’ application; not merely their application to extend the interim injunction made by Rees J.

10. In those circumstances, I make the following orders: ^[2]

    2. I note that order [4] is made by consent, notwithstanding my observations at [54]-[57] of my 11 April 2024 judgment, Nature’s Care Holdings Pty Ltd v Chen (No 5) (supra).

1. The costs of:

1. the first, second and third defendants of and incidental to the plaintiffs’ application for interlocutory orders sought in paragraphs 10 to 15 of the Second Further Amended Summons dated 3 February 2024 (and all earlier versions); and

2. the third defendant of and incidental to the plaintiffs’ application to set aside the third defendant’s notice to produce to court heard on 31 January 2024,

be paid by the plaintiffs and JIC Nature Capital Pte Ltd (a Singaporean company, registered no. 201823291M (“JIC”) and Tamar Alliance Health Limited (a Cayman Islands company registered no. WC-334052 (“Tamar”), jointly and severally.

2. JIC and Tamar pay the costs of the defendants of the defendants’ notices of motion heard by the Court on 12 March 2024 and 3 April 2024.

3. The costs orders the subject of orders 1 and 2 above be assessable forthwith.

4. The costs orders the subject of orders 1 and 2 above, as they relate to the third defendant’s costs and JIC and Tamar, be payable forthwith.

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Endnotes

Decision last updated: 20 May 2024