Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Pi v Zhou [2016] NSWCA 148 Hearing dates: 17 June 2016 Decision date: 24 June 2016 Before: Gleeson JA Decision: (1) Stay these proceedings until the applicant (Mr Pi) has:
(a) paid to the respondents (Mr Zhou and Mrs Zhao):
(i) the costs of $1,200 ordered on 7 December 2015 in proceedings 2015/336639, and
(ii) the costs of the summons in proceedings 2016/41912 ordered on 2 March 2016, as assessed or agreed; and
(b) provided security for the respondents’ costs of the application for leave to appeal in accordance with order 2 below.
(2) The applicant provide within 21 days security in the sum of $12,000 for the respondents’ costs of the application for leave to appeal by payment of that amount into court.
(3) The applicant (Mr Pi) to pay the respondents’ (Mr Zhou and Mrs Zhao’s) costs of the notice of motion filed 20 April 2016.Catchwords: PRODEDURE - Costs - Interlocutory proceedings – application by respondents for security of costs and stay of application for leave to appeal until costs of earlier proceedings paid – where two costs orders of earlier proceedings in Court of Appeal unpaid by applicant – where application for leave to appeal concerns same subject-matter and parties as earlier proceedings – where applicant and respondents have costs orders against each other from earlier Supreme Court proceedings – where respondents’ unassessed costs well exceed amount of applicant’s unassessed costs in earlier Supreme Court proceedings – whether stay for proceedings brought on the same cause of action – where same facts, evidence and parties – security for costs – exercise of discretion under UCPR r 51.50 – whether “special circumstances” exist – where applicant requires extension of time for leave to appeal after misunderstanding procedure – prospects of success of proposed appeal – credit-based factual findings – where amount sought not excessive Legislation Cited: Civil Procedure Act 2005 (NSW), ss 67, 96
Uniform Civil Procedure Rules 2005 (NSW), rr 12.4, 13.4, 42.1, 42.21(1)(b), 51.50Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Bowen v Hickey (1958) 78 WN (NSW) 820
CGU Insurance Ltd v Watson (as Trustee of the deed of arrangement in respect of Greaves) [2007] NSWCA 301
Dunbee Ltd v Gilman & Co (Australia) Pty Ltd (1968) 89 WN (NSW) 146
Eriksson v Commonwealth Bank of Australia [2014] NSWSC 50
Fox v Percy [2003] HCA 22; 214 CLR 118
Fiduciary Ltd v Morningstar Research Pty Ltd [2004] NSWSC 664; 208 ALR 564
Hastings v Hastings [2009] NSWCA 294
Hutchinson v Nominal Defendant (1972) 1 NSWLR 443
Idoport Pty Ltd v National Australia Bank Ltd [2006] NSWCA 202
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Levy v Bablis [2011] NSWCA 411
M’Cabe v Bank of Ireland (1889) 14 App Cas 413
Porter v Gordian Runoff Ltd [2004] NSWCA 171
Preston v Harbour Pacific Underwriting…
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- AGLC
- Pi v Zhou [2016] NSWCA 148
- Case
- [2016] NSWCA 148
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the proceedings should be stayed until the applicant paid outstanding costs orders from earlier proceedings, and whether the applicant should be required to provide security for the respondents' costs of the application for leave to appeal. The Court considered the application of Uniform Civil Procedure Rules (UCPR) r 51.50 regarding security for costs and the existence of "special circumstances" that might warrant such an order.
Gleeson JA reasoned that a stay of proceedings was appropriate given that the application for leave to appeal concerned the same subject-matter and parties as the earlier proceedings, and that the applicant had failed to pay costs orders made against him in those earlier proceedings. The Court also found that security for costs was warranted under UCPR r 51.50, noting that the respondents' unassessed costs likely exceeded the applicant's unassessed costs from the Supreme Court proceedings, and that the applicant's prospects of success on appeal, despite an initial misunderstanding of procedure, were not strong given the credit-based factual findings in the primary judgment.
The Court ordered a stay of the proceedings until the applicant paid the costs of $1,200 ordered on 7 December 2015 and the costs of the summons in proceedings 2016/41912, as assessed or agreed. Furthermore, the applicant was ordered to provide security for the respondents' costs of the application for leave to appeal in the sum of $12,000 within 21 days, and to pay the respondents' costs of the notice of motion filed on 20 April 2016.
Orders
Orders of the court
(1) Stay these proceedings until the applicant (Mr Pi) has:
(a) paid to the respondents (Mr Zhou and Mrs Zhao):
(i) the costs of $1,200 ordered on 7 December 2015 in proceedings 2015/336639, and
(ii) the costs of the summons in proceedings 2016/41912 ordered on 2 March 2016, as assessed or agreed; and
(b) provided security for the respondents’ costs of the application for leave to appeal in accordance with order 2 below.
(2) The applicant provide within 21 days security in the sum of $12,000 for the respondents’ costs of the application for leave to appeal by payment of that amount into court.
(3) The applicant (Mr Pi) to pay the respondents’ (Mr Zhou and Mrs Zhao’s) costs of the notice of motion filed 20 April 2016.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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