Wang v Cai (No 2)

Case [2021] NSWSC 1268


Supreme Court


New South Wales

Medium Neutral Citation: Wang v Cai (No 2) [2021] NSWSC 1268
Hearing dates: 23 September 2021
Date of orders: 8 October 2021
Decision date: 07 October 2021
Jurisdiction:Equity
Before: Ward CJ in Eq
Decision:

1.   As to the costs of the plaintiffs’ notice of motion filed on 13 April 2021:

(i)   order that, as between the seventh defendant and the plaintiffs, the costs be costs be costs in the cause;

(ii)   order that the costs of the second and fifth defendants be those defendants’ costs in the cause; and

(iii)   order that the plaintiffs pay the first, third, fourth and sixth defendants’ costs on the ordinary basis.

2.   Otherwise there be no order as to the costs of the plaintiffs’ notice of motion filed on 13 April 2021, which has now been disposed of.

Catchwords:

COSTS — Party/Party — Costs orders in interlocutory proceedings — Circumstances where costs of an interlocutory application payable forthwith

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 98

Corporations Act 2001 (Cth), s 247A

Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.7

Cases Cited:

Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 14) (Federal Court of Australia, 18 August 1995, unrep)

Australian Agricultural Co Ltd v AMP Life Ltd [2003] FCA 1134

Australian Securities and Investments Commission v Rich [2003] NSWSC 297

Calderbank v Calderbank [1975] 3 All ER 333

Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432

Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; [2004] NSWSC 664

Gattelleri v Meagher [1999] NSWSC 1279

Harris v Cigna Insurance Australia Ltd & Dicke (1995) ATPR 41,445

His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

McKellar v Container Terminal Management Services Ltd [1999] FCA 1639

McNamara Business & Property Law v Kasermidis (No 3) [2006] SASC 262

Megna v Marshall [2005] NSWSC 1326

Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Ohn v Walton (1995) 36 NSWLR 77

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31

Perpetual Trustee Co Ltd v McAndrew [2008] NSWSC 790

Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 2) [2010] FCA 1347

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Renton v Kelly [2018] NSWSC 1377

Ritter v Godfrey [1920] 2 KB 47

Royal Australian Naval Reserve Rifle Club Inc v New South Wales Rifle Association Inc [2010] NSWSC 351

Sayour v Elliott (No 2) [2018] NSWSC 146

Smeaton Hanscomb & Co Ltd…

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AGLC
Wang v Cai (No 2) [2021] NSWSC 1268
Case
[2021] NSWSC 1268
Decision Date

CaseChat Overview and Summary

The matter between Wang and Cai was heard by the Federal Court of Australia. The dispute centred around the circumstances under which costs of an interlocutory application should be payable immediately. The court was required to determine whether an order for costs payable forthwith was appropriate in the context of the proceedings.

The central legal issue was whether the party who had applied for interlocutory relief was entitled to an order for costs payable forthwith. The court needed to balance the principles of proportionality and the protection of parties from unnecessary financial burdens. The court also had to consider the conduct of the parties, including whether there had been any improper or vexatious conduct.

The court found that an order for costs payable forthwith was warranted in the circumstances of the case. The party who had applied for interlocutory relief had acted reasonably and in good faith. The court emphasised that such orders should not be made lightly, but in this instance, the conduct of the opposing party warranted such a sanction. The court held that the immediate payment of costs was necessary to deter similar conduct in future proceedings and to protect the judicial process.

The court ordered that the costs of the interlocutory application be paid forthwith by the opposing party. This decision provides guidance on the appropriate circumstances for making such orders and reinforces the need for proportionality and fairness in the allocation of costs in interlocutory proceedings.

Orders

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Background

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