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Ng v Cheng

Ng v Cheng

Case [2019] NSWSC 280 20 March 2019

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Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Ng v Cheng [2019] NSWSC 280
Hearing dates: 5 March 2019
Decision date: 20 March 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Vary the orders made on 5 March 2019, such that the applicant pay the respondent’s costs of the notice of motion for summary dismissal on the indemnity basis from 16 November 2018.

Catchwords:
CIVIL PROCEDURE — Application pursuant to r 13.4 UCPR for summary dismissal of cross-claim as against second cross-claimant –– application dismissed with costs –– pleadings taken at their highest –– not established that cause of action against second cross-defendant is untenable or doomed to failure
COSTS — Application for indemnity costs —Calderbank offers –– whether genuine offer of compromise and whether unreasonable for second cross-defendant not to accept the offer –– costs of the summary dismissal application ordered on an indemnity basis
Legislation Cited: Conveyancing Act 1919 (NSW), s 127
Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333; (1975) 3 WLR 586
Catherine Margaret Thorn, as executrix of the Estate of the late Betty McAuley v Ian Geoffrey Boyd and Dawn Kathleen Boyd [2016] NSWSC 1344
Chalmers v Pardoe [1963] 1 WLR 677
Commercial Bank of Australia Limited v Amadio (1982-1983) 151 CLR 447
Commonwealth of Australia v Gretton [2008] NSWCA 117
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; 81 ALR 397
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Herning v GWS Machinery Pty Ltd [No. 2] [2005] NSWCA 375
Irvine v Scaysbrook [2005] NSWSC 565
John Alexander’s Clubs Pty Ltd v While City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Klain v Mobbs (No 2) [2008] NSWSC 599
Leichhardt Municipal Council v Green [2004] NSWCA 341
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Morris v Morris [1982] 1 NSWLR 61
Ren v Jiang (2014) 104 ACSR 149
Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Category: Procedural and other rulings
Parties: Amy Pui Yi Ng (First Plaintiff/First Cross-defendant)
Mable Hui Qing Cheng (Second Plaintiff/Second Cross-defendant)
Sunny Chang Wei Cheng (Defendant/Cross-claimant)
Representation:
Counsel:
J Neo (Solicitor) (Second Plaintiff/Second Cross-defendant; Applicant on motion)
JC Lee (Defendant/Cross-claimant; Respondent on motion)
Solicitors:
Summit Legal (First Plaintiff/First Cross-defendant)
Accuro Legal (Second Plaintiff/Second Cross-defendant)
Ren Zhou Lawyers (Defendant/Cross-claimant)

File Number(s): 2017/00284681
Publication restriction: Nil

Judgment

HER HONOUR: Before me for hearing on 5 March 2019 was an application by the second plaintiff/second cross-defendant in these proceedings (Ms Mable Hui Qing Cheng) (to whom I will refer as the applicant or, where referred to collectively with the first plaintiff/first cross-defendant, as one of the plaintiffs), by notice of motion filed on 15 November 2018, seeking…

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 Ng v Cheng

Details

AGLC: Ng v Cheng [2019] NSWSC 280
Case: [2019] NSWSC 280
Decision Date: 20 March 2019

CaseChat Overview and Summary

The parties involved in the case were Ng, the plaintiff, and Cheng, the second cross-defendant. The dispute centred around an application by Cheng for the summary dismissal of a cross-claim brought by Ng against Cheng. The application was heard in the Supreme Court of New South Wales. The central legal issue before the court was whether the cross-claim brought by Ng against Cheng was untenable or destined to fail. Additionally, the court had to consider whether Cheng's application for indemnity costs, following a Calderbank offer, was justified.

In addressing these issues, the court took the pleadings at their highest and found that Ng's cross-claim against Cheng was not shown to be untenable or doomed to failure. The court dismissed Cheng's application for summary dismissal, concluding that the cross-claim had sufficient merit to proceed to trial. The court also examined Cheng's application for indemnity costs in light of a Calderbank offer. The court held that the offer was genuine, and it was unreasonable for Cheng not to accept it. Consequently, the court ordered that Cheng pay the costs of the summary dismissal application on an indemnity basis.

As a result of the court's decision, Cheng's application for summary dismissal was dismissed, and Ng's cross-claim against Cheng was allowed to proceed. Additionally, the court ordered Cheng to pay the costs of the summary dismissal application on an indemnity basis. This outcome underscores the importance of considering Calderbank offers and the potential consequences of not accepting a genuine offer of compromise in legal proceedings.

Orders