Taxa Australia Pty Ltd v G Wang - [2018] NSWSC 1668

Supreme Court

New South Wales

Medium Neutral Citation: Taxa Australia Pty Ltd v G Wang & Anor [2018] NSWSC 1668
Hearing dates: 7 – 8 August; 16 – 17 August and 23 August 2018; written submissions as to orders and costs 5, 15 October 2018; further oral hearing 29 October 2018.
Decision date: 01 November 2018
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Determination as to form of orders and costs orders made.

Catchwords:
PROCEDURE – judgment and orders – application to reopen after reasons for judgment but before orders were made.

COSTS – where value of the claims pressed at the hearing were below the jurisdictional limit of the District Court – where matter arguably arose out of a commercial transaction – whether r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) displaces the possibility of a costs order in favour of the successful party – where several pleaded claims were not pressed at the final hearing – whether costs order should only be made in respect of the successful claim.
ORDERS – determination as to form of orders.
Cases Cited: - Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
- Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
- Chen v Chan [2009] VSCA 233
- Commonwealth of Australia v Gretton [2008] NSWCA 117
- Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296
- Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34
- Kernaghan v Corrections Corporation of Australia Staff Superannuation Pty Ltd (No 2) [2007] FCA 1040
- Nova 96.9 Pty Ltd v Natvia Pty Ltd [2018] NSWSC 1288
- Permanent Custodians Ltd v Geagea (No 4) [2016] NSWSC 934
- Re Boart Longyear Ltd (No 4) [2017] NSWSC 1357
- Southern Classic Group Pty Ltd t/as Southern Classic Cars v Arch Underwriting at Lloyd’s Ltd on behalf of Syndicate 2012 (No 2) [2018] NSWSC 1530
- The NTF Group Pty Ltd v PA Putney Finance Australia Pty Ltd [2017] NSWSC 1194
- Wentworth v Rogers [2002] NSWSC 921
Category: Procedural and other rulings
Parties: Taxa Australia Pty Ltd (Plaintiff/Cross-Defendant to First Cross-Claim/First Cross-Defendant to Second Cross-Claim)
Gang Wang (First Defendant/Cross-Claimant to Second Cross-Claim)
Xue Hua Yao (Second Defendant/Cross-Claimant to First Cross-Claim)
Keming Diao (Second Cross-Defendant to Second Cross-Claim)
Luca Borghese (Third Cross-Defendant to Second Cross-Claim)
Representation:
Counsel:
D F Elliott (Plaintiff/Cross-Defendant to First Cross-Claim/Cross-Defendants to Second Cross-Claim)
Solicitors:
Jem Lawyers (Plaintiff/Cross-Defendant to First Cross-Claim/Cross-Defendants to Second Cross-Claim)
Gang Wang (Self-Represented - First Defendant/Cross-Claimant to Second Cross-Claim)
Xue Hua Yao (Self-Represented - Second Defendant/Cross-Claimant to First Cross-Claim)

File Number(s): 2015/367612

Judgment

On 14 September 2018, I delivered my judgment in proceedings brought by Taxa Australia Pty Ltd (“Taxa”) against Mr Gang Wang and Ms Xue Hua Yao ([2018] NSWSC 1412) (“Judgment”). I held that Taxa was entitled to recover the amount of $160,140.52 against Mr Wang (Judgment [48]), subject to any deduction of amounts…

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: [2018] NSWSC 1668
Decision Date: 01 November 2018

CaseChat Overview and Summary

In the case of Taxa Australia Pty Ltd v G Wang, the dispute centred around an application to reopen proceedings after the reasons for judgment were delivered but before the orders were made. The case was heard in the Supreme Court of New South Wales, specifically within the Commercial Division. Taxa Australia Pty Ltd sought a reopening of the case, while G Wang, the defendant, opposed the application. The primary concern was whether the court should allow the reopening and, if so, what form the orders should take, considering the nature and value of the claims.

The legal issues before the court included whether the procedural rules allowed for a reopening after the reasons for judgment were delivered and before orders were made, and if so, under what circumstances. Another significant issue was the application of costs under the Uniform Civil Procedure Rules 2005 (NSW), specifically regarding the jurisdictional limits of the District Court and whether certain claims could be considered commercial transactions. The court also had to determine if Rule 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) precluded a costs order in favour of the successful party, particularly where the value of the claims pressed at the hearing was below the jurisdictional limit of the District Court. Furthermore, the court examined whether a costs order should be restricted to the successful claim, given that several pleaded claims were not pursued at the final hearing.

The court found that the application to reopen was permissible under the circumstances presented, and it was appropriate to make orders that reflected the successful party's position. Regarding costs, the court concluded that Rule 42.34 did not preclude a costs order in favour of the successful party where the matter arguably arose out of a commercial transaction. The court also determined that the costs order should be limited to the successful claim, as several pleaded claims were not pursued at the final hearing. The court emphasised the importance of ensuring that the orders accurately reflected the outcome of the proceedings and the value of the claims.

The court ordered that the application to reopen be granted, and specific orders were made in favour of the successful party, Taxa Australia Pty Ltd. The costs order was limited to the successful claim, reflecting the court's consideration of the value of the claims pressed at the hearing and the nature of the commercial transaction.

Orders