Perpetual Corporate Trust Limited v Ip - [2024] NSWSC 728

Supreme Court

New South Wales

Medium Neutral Citation: Perpetual Corporate Trust Limited v Ip [2024] NSWSC 728
Hearing dates: 12 June 2024
Date of orders: 18 June 2024
Decision date: 18 June 2024
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Grant leave to the plaintiff to discontinue the proceedings against the third defendant.
(2) No order as to the costs of the proceedings to the intent that each of the plaintiff and the third defendant should bear its and his own costs.

Catchwords:
CIVIL PROCEDURE – discontinuance – leave of court – whether plaintiff should pay defendant’s costs of the proceedings – possession proceedings – proceedings discontinued after filing of defence – supervening event making proceedings futile – principles regarding costs orders and discontinuance – where plaintiff had not acted unreasonably

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) r 42.19

Cases Cited:
Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack and Ors [2003] NSWCA 302
Furnish & Finish Pty Ltd v Hollands [2020] NSWSC 1593
One Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548
Transtar Linehaul Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 159

Texts Cited:
Nil

Category: Costs
Parties: Perpetual Corporate Trust Limited (Plaintiff)
Eric Shu-Wah Ip (First Defendant)
Yuk Ting Ip (Second Defendant)
Qing Shan Huang (Third Defendant)
Representation:
Counsel:
M Collins (Plaintiff)
E Patakas (First Defendant)
S Crosbie (Second Defendant)
A Chowdhury (Third Defendant)
Solicitors:
Dentons (Plaintiff)
Evangelos Patakas & Associates Lawyers (First Defendant)
Edward T Davis & Co Solicitors (Second Defendant)
Cambridge Law (Third Defendant)

File Number(s): 2023/280947
Publication restriction: Nil

JUDGMENT

These proceedings were commenced on 4 September 2023 by filing a statement of claim. The plaintiff sought possession of a property in Rose Bay belonging to the first and second defendants, possession of two properties in Boyd St, Tweed Heads (“the Boyd St properties”) belonging to the second and third defendants, judgment against the first defendant for $27,643,298.85 pursuant to five different loans, judgment against the second defendant for $27,169,844.64 in respect of four of the five loans claimed against the first defendant, and judgment against the third defendant for $6,027,201.94 in respect of one of the loans claimed against the second and third defendants.
Since the commencement of the proceedings the plaintiff has been paid in full in respect of the loan amount being claimed against the third defendant. Accordingly, the plaintiff intends to discontinue the proceedings, but wishes to do so without being required to pay the costs of the third defendant.
The five loans were made to five different companies. The first defendant was alleged to be the guarantor of all five of those loans. The second defendant was alleged to be the guarantor of four of those loans and the third defendant was alleged to be the guarantor of one of those loans, being a loan to Onward Business Consultants Pty…

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.

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Details

Case: [2024] NSWSC 728
Decision Date: 18 June 2024

CaseChat Overview and Summary

The plaintiff, Perpetual Corporate Trust Limited, brought proceedings against the defendant, Ip, for possession of property. After the defendant filed a defence, the plaintiff sought to discontinue the proceedings due to a supervening event that rendered the proceedings futile. The plaintiff did not seek to pay the defendant’s costs of the proceedings, arguing that there were no grounds for such an order. The court had to determine whether the plaintiff should pay the defendant’s costs of the proceedings given the circumstances of the discontinuance.

The primary legal issue was whether the plaintiff should be ordered to pay the defendant’s costs of the proceedings. The court considered the principles regarding costs orders and discontinuance, particularly in cases where the proceedings had been discontinued after the filing of a defence. It examined the circumstances under which a plaintiff might be required to pay the defendant’s costs, including instances where the plaintiff had not acted unreasonably. The court also considered whether the supervening event that led to the discontinuance had any bearing on the costs order.

The court held that the plaintiff was not required to pay the defendant’s costs of the proceedings. It found that the plaintiff had not acted unreasonably in discontinuing the proceedings, and that the supervening event had made the proceedings futile. The court emphasised that the principles regarding costs orders in cases of discontinuance required a balanced approach, taking into account all relevant circumstances. It concluded that there were no grounds for making an order for the plaintiff to pay the defendant’s costs.

The court made no order for the plaintiff to pay the defendant’s costs of the proceedings. It dismissed the defendant’s application for such costs, finding that the plaintiff’s actions were reasonable and that the circumstances justified the discontinuance. The court’s decision highlighted the importance of considering the specific facts and principles in each case when determining costs orders in relation to discontinuance.

Orders