Shang v Zhang (No 2) - [2007] NSWSC 1355

CITATION: Shang v Zhang (No 2) [2007] NSWSC 1355

HEARING DATE(S): 16 October 2007

JUDGMENT DATE :
28 November 2007

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: First defendant holds each of sums in paragraphs 4 and 5 of proposed short minutes on trust for plaintiff. First defendant to pay interest at court rate on each of the sums in paragraphs 3, 4 and 5 of short minutes. First defendant to pay 75% of plaintiff's costs, 25% to be paid by second defendant.

CATCHWORDS: PROCEDURE [585]- Costs- Departing from the general rule- Conduct of parties- Other cases- First defendant vehemently contested proceedings and sought to conceal assets overseas- Second defendant played no role in defending the case- Appropriate that 75% of plaintiff's costs be paid by first defendant and 25% by second defendant.

LEGISLATION CITED: Civil Procedure Act 2005, s 98

PARTIES: Xian Xi Shang (P)
Rong Hui Zhang (D1)
Jin Shang (D2)

FILE NUMBER(S): SC 6181/06

COUNSEL: R W Tregenza (P)
P Ryan (D1)

SOLICITORS: Austin Haworth & Lexon (P)
Watts McCray Lawyers (D1)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 28 November 2007

6181/06 – SHANG v ZHANG (NO 2)

JUDGMENT

1 HIS HONOUR: I gave reasons for judgment in these proceedings basically in the plaintiff’s favour on 8 August last (coded [2007] NSWSC 856). I stood the matter over for short minutes to be produced.

2 When I was considering the draft short minutes of order, various questions were raised. There was oral argument and written submissions over a period of two months and, on 16 October 2007, in view of time constraints, I reserved my decision. I now give that decision and the reasons therefor.

3 Most of the matters originally in dispute were resolved or I made rulings during the argument which were accepted by the parties. The matters which remained outstanding on 16 October were:

(1) Whether there was “double dipping” by the plaintiff if orders were made as proposed in items 4 and 5;

(2) Interest; and

4 I will deal with each of these matters in turn and then deal with the other adjustments that need to be made to the short minutes under heading (4).

5 (1) Paragraphs 4 and 5 of the short minutes provided by the plaintiff state:

“4. The first defendant holds the sum of $280,007.50 of the funds on deposit with Citibank (Hong Kong) Limited in account number 250-387-83161503 on trust for the plaintiff.

6 Ms Ryan for the first defendant puts that both these orders should not be made as there is duplication.

7 Mr Tregenza for the plaintiff says that there are four sums of money claimed by the plaintiff, viz: (a) $320,000 which the defendants obtained by mortgaging the Crick Street property…

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: [2007] NSWSC 1355
Decision Date: 28 November 2007

CaseChat Overview and Summary

The matter of Shang v Zhang (No 2) came before the court, where the plaintiff sought to recover debts owed by the first and second defendants. The plaintiff alleged that the first defendant had actively concealed assets overseas, while the second defendant had played no part in defending the proceedings. The court was tasked with determining the appropriate apportionment of the plaintiff's costs between the two defendants.

The central legal issue before the court was the allocation of the plaintiff's costs between the first and second defendants. The court needed to consider the conduct of both defendants, particularly the first defendant's efforts to conceal assets and contest the proceedings, as well as the second defendant's lack of involvement in the case. The court also needed to take into account the principles of fairness and justice in determining the appropriate division of costs.

In delivering the judgment, the court acknowledged the first defendant's active role in contesting the proceedings and attempting to hide assets, which warranted a significant portion of the costs being attributed to them. The second defendant's lack of involvement in the case, on the other hand, meant that their share of the costs should be relatively minimal. After considering the conduct of both defendants and the relevant legal principles, the court determined that it was appropriate to allocate 75% of the plaintiff's costs to the first defendant and 25% to the second defendant. This decision reflected the different levels of involvement and responsibility of the parties in the case.

The court's final order was that the first defendant was to pay 75% of the plaintiff's costs, while the second defendant was to pay 25%. This outcome ensured that the costs were apportioned in a manner that was fair and just, taking into account the differing roles and responsibilities of the parties in the proceedings.

Orders