Plus One International Pty Ltd v Ching (No 2)

[2020] NSWSC 1016

Supreme Court

New South Wales

Medium Neutral Citation:	Plus One International Pty Ltd v Ching (No 2) [2020] NSWSC 1016
Hearing dates:	On the papers
Date of orders:	4 August 2020
Decision date:	04 August 2020
Jurisdiction:	Equity
Before:	Williams J
Decision:	The plaintiffs are ordered to pay 50% of the defendants’ costs in respect of the amended notice of motion filed on 17 February 2020.
Catchwords:	COSTS – departure from the usual rule – where defendants were partly successful in their application to review decision of the registrar to set aside certain subpoenas and notices to produce – where defendants seek a different costs order than that made by the registrar – registrar’s costs order varied
Cases Cited:	Plus One International Pty Ltd v Ching [2020] NSWSC 939
Category:	Costs
Parties:	Plus One International Pty Ltd (First Plaintiff) Plus One Migration Pty Ltd (Second Plaintiff) Yiu Tung Ching (First Defendant) Jieyi Lu (Second Defendant)
Representation:	Counsel: Ms D Dinnen (Plaintiffs) Mr D P O’Connor (Defendants) Solicitors: Comasters Law Firm and Notary Public (Plaintiffs) Juris Cor Legal (Defendants)
File Number(s):	2018/387905
Publication restriction:	N/A

Judgment

1. These reasons concern the costs of the plaintiffs’ application for review of a decision of the Registrar which I determined partly in favour and partly adversely to the plaintiffs in my reasons for judgment dated 22 July 2020: Plus One International Pty Ltd v Ching [2020] NSWSC 939.

2. The decision of the Registrar under review concerned one notice to produce and three categories of subpoenas issued by the plaintiffs. By amended notice of motion filed on 17 February 2020, the defendants had applied to set aside the notice to produce and all of those subpoenas. The Registrar dismissed the defendants application insofar as it related to the notice to produce, but set aside the subpoenas. The Registrar ordered the plaintiffs to pay 80% of the defendants’ costs of that application. The Registrar’s reasons for decision were issued on 29 May 2020.

3. On the plaintiffs’ application for review of the Registrar’s decision, I set aside the decision relating to one category of subpoenas and made access orders in relation to the documents produced under those subpoenas. I declined to interfere with the Registrar’s decision in relation to the other two categories of subpoenas. I noted that the evidence and written submissions that the parties relied on were the same as the evidence and submissions before the Registrar, and that the category of subpoenas in relation to which I had set aside the Registrar’s decision had occupied most of the hearing time before me. On that basis, I ordered the defendants to pay the plaintiffs’ costs of the review application. However, as the parties had not specifically addressed costs, that order was expressed to be subject to any application by any party seeking alternative costs orders: [2020] NSWSC 939 at [48].

4. Neither party seeks an alternative costs order in relation to the review application.

5. However, the plaintiffs seek an additional order setting aside the Registrar’s costs order and substituting it with an order that the defendants pay the whole of the plaintiffs’ costs of the defendants’ amended notice of motion filed on 17 February 2020.

6. The defendants contend that the costs orders made by the Registrar should be maintained, bearing in mind that I have ordered the defendants to pay the whole of the plaintiffs costs of the review application even though the plaintiffs had only partial success on that application.

7. As already noted above, I formed the view that it was appropriate to order the defendants to pay all of the plaintiffs’ costs of the review application, despite the mixed outcome of that application, having regard to the manner in which the parties conducted the hearing before me.

8. The plaintiffs made no submission concerning the manner in which the hearing was conducted before the Registrar to support their contention that they should have the benefit of an order for all of their costs of the defendants’ amended notice of motion filed on 17 February 2020, even though the defendants have ultimately succeeded in obtaining approximately 50% of the relief sought in that amended notice of motion.

9. The Registrar clearly considered that it was appropriate to make a costs order that reflected the parties respective measures of success and failure. Without having observed how the hearing before the Registrar was conducted, and in the absence of any submissions about this from either party, it is difficult for me to now discern what would be an appropriate order concerning the costs of the hearing before the Registrar. However, it does seem clear that the Registrar’s costs order was designed to reflect the defendants’ success in relation to all three categories of subpoenas, so that some adjustment to that costs order is now appropriate.

10. Doing the best I can in all the circumstances, I have come to the conclusion that order 4 made by the Registrar on 29 May 2020 should be set aside and, in lieu thereof, the plaintiffs should be ordered to pay 50% of the defendants’ costs of the amended notice of motion filed on 17 February 2020.

11. For those reasons, I make the following orders:

1. Vary order 1 made by the Court on 22 July 2020 to read as follows:

“(1)   Set aside order 2 and order 4 made by the Registrar on 29 May 2020 and, in lieu thereof:

(a)   order that paragraphs 2, 4, 5, 7 and 8 of the defendant’s amended notice of motion filed on 17 February 2020 is dismissed;

(b)   order that the plaintiffs pay 50% of the defendants’ costs of the amended notice of motion filed on 17 February 2020.”

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