Wang v ABC Homes (NSW) Pty Ltd (No 2) - [2018] NSWSC 1736

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wang v ABC Homes (NSW) Pty Ltd (No 2) [2018] NSWSC 1736
Hearing dates: 8 November 2018
Date of orders: 13 November 2018
Decision date: 13 November 2018
Jurisdiction: Equity - Corporations List
Before: Parker J
Decision:
1. Order that the proceedings be dismissed.
2. No order as to costs.

Catchwords: COSTS – costs of successful application pursuant to Corporations Act 2001 (Cth), s 459S – discussion of the “indulgence principle” – whether it is proper to characterise an application for leave under s 459S as seeking an indulgence from the court – whether the costs of a successful s 459S application should ordinarily be costs in the cause or the plaintiff’s costs in the cause
Legislation Cited: Corporations Act 2001 (Cth), ss 459Q, 459S
Cases Cited: Elite Motor Campers Australia v Leisureport Pty Ltd (1996) 22 ACSR 235
Ewen Stewart & Associates Pty Ltd v Blue Mountains Virtual Air Helitours Pty Ltd (No 2) (2011) 29 ACLC 11-006; [2011] NSWSC 113
Gillion Pty Ltd v Wet Fix Holdings Pty Ltd (No 2) [2016] FCA 1483
Grant Thornton Services (NSW) Pty Ltd v St George Wholesale Distributors Pty Ltd (2008) 26 ACLC 1,462; [2008] FCA 1777
Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143
Nardell Coal Corp (in liq) v Hunter Valley Coal Processing (2003) 178 FLR 400; [2003] NSWSC 642
Radiancy (Sales) Pty Ltd v Bimat Pty Ltd (2007) 25 ACLC 1,216; [2007] NSWSC 962
Stanley v Layne Christensen Company [2006] WASCA 56
SY Financial Services Pty Ltd v Risk Business Pty Ltd [2015] VSC 421
Topcide Pty Ltd v Deputy Dog Pty Ltd [2008] NSWSC 1323
Wang v ABC Homes (NSW) Pty Ltd [2018] NSWSC 1624
Category: Costs
Parties: Hai Ling Wang (Plaintiff)
ABC Homes (NSW) Pty Ltd (Defendant)
Representation:
Counsel:
MK Condon SC (Plaintiff)
MW Young SC (Defendant)
Solicitors:
Contracts Specialist Pty Ltd (Plaintiff)
Vatandoust Laywers (Defendant)

File Number(s): 2018/139645
Publication restriction: Nil

Judgment

On 26 October I granted leave to the defendant in these winding up proceedings to rely for its defence on the ground that the debt the subject of the plaintiff’s statutory demand is disputed: Wang v ABC Homes (NSW) Pty Ltd [2018] NSWSC 1624. The order was made under the Corporations Act 2001 (Cth), s 459S. I adjourned the proceedings to allow the parties to bring in proposed orders for the further conduct of the proceedings and dealing with the costs. The defendant, ABC, now moves for the proceedings to be dismissed and the plaintiff, Ms Wang, does not oppose that course. The dispute between the parties concerns the costs of the proceedings.
Counsel for ABC submitted that the dismissal of the proceedings meant that ABC had succeeded and that Ms Wang should therefore pay ABC’s costs. Counsel for Ms Wang contended that ABC should pay the costs of the s 459S application, but accepted that there might be some small off-set for any general costs of the…

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 1736
Decision Date: 13 November 2018

CaseChat Overview and Summary

The case of Wang v ABC Homes (NSW) Pty Ltd (No 2) involved a dispute between the plaintiff, Mr Wang, and the defendant, ABC Homes (NSW) Pty Ltd, regarding the costs incurred during an application under section 459S of the Corporations Act 2001 (Cth). The plaintiff sought to have the application costs deemed as costs in the cause rather than as the plaintiff's costs in the cause. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue the court had to address was whether it was appropriate to characterise an application for leave under section 459S as seeking an indulgence from the court. Additionally, the court needed to determine whether the costs of a successful section 459S application should ordinarily be regarded as costs in the cause or as the plaintiff's costs in the cause. This required the court to interpret the relevant provisions of the Corporations Act and consider the established legal principles surrounding costs in litigation.

In examining these issues, the court found that section 459S of the Corporations Act does not explicitly provide for the costs of such an application to be costs in the cause. The court further noted that such applications are not typically considered as seeking an indulgence from the court, but rather as seeking a specific remedy under the statute. The court held that the costs of a successful application under section 459S should ordinarily be the plaintiff's costs in the cause, reflecting the discretionary nature of the application and the statutory framework. The indulgence principle was not seen as applicable to this type of application.

The court concluded that the plaintiff's application for the costs of the successful section 459S application to be costs in the cause should be dismissed. The costs were to remain as the plaintiff's costs in the cause.

Orders