Wang v Yun

[2025] NSWSC 505

Supreme Court

New South Wales

Medium Neutral Citation:

Wang v Yun [2025] NSWSC 505

Hearing dates:

On the papers

Date of orders:

20 May 2025

Decision date:

20 May 2025

Jurisdiction:

Equity - Applications List

Before:

Brereton J

Decision:

See [36]

Catchwords:

CIVIL PROCEDURE – application for the transfer of proceedings to the Supreme Court of Victoria – costs – where the Plaintiff and Second Defendant initially consented to the transfer – application by the Second Defendant to transfer the proceedings to the Federal Circuit and Family Court of Australia – where the Second Defendant abandoned that application – where the Plaintiff and Second Defendant reversed their position a second time and again consented to the transfer to the Supreme Court of Victoria – whether the conduct of the Plaintiff and Second Defendant was unreasonable and reckless – whether there should be an order for indemnity costs – whether costs should be reserved – costs payable on the ordinary basis up to 9 April 2025 and no order as to costs thereafter – costs payable forthwith.

Legislation Cited:

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225

FAI General Insurance Co Ltd v Burns [1996] NSWCA 177; (1996) 9 ANZ Ins Cas 61-384

In the matter of Tiaro Coal Limited (in liquidation) [2018] NSWSC 1043

Michael Anthony Luxury Cars Pty Ltd v Connexwire Ltd (No 2) [2019] NSWSC 1188

Texts Cited:

N.A.

Category:

Costs

Parties:

Shuhui Wang (Plaintiff)
John Yun (First Defendant)
Kathryn Yang (Second Defendant)
He Run Pty Ltd (Third Defendant)

Representation:

Counsel:
A J Macauley (Plaintiff)
C E Shaw KC, G M Douglas (First and Third Defendants)
No other appearances

Solicitors:
Juris Cor Legal (Plaintiff)
Ascot Solicitors (First and Third Defendants)
Australian Legal Advisory Centre (Second Defendant)

File Number(s):

2025/40368

Publication restriction:

N.A.

JUDGMENT

1. This concerns an application made by the First and Third Defendant for the proceeding to be transferred to the Supreme Court of Victoria pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). It is also, and principally, about costs.

2. The proceeding was commenced in this Court by Statement of Claim filed on 31 January 2025. In broad terms, the Plaintiff alleges that the First and Second Defendant are indebted to the Plaintiff in the sum of $1,700,000 together with interest that has been accruing since 13 July 2015. The First and Second Defendant were married as at 13 July 2015 but are now divorced. The Third Defendant is alleged to be the trustee of the family trust of the First Defendant and is sued as guarantor. The First and Third Defendant are commonly represented.

3. The First and Third Defendant filed a Notice of Motion on 24 February 2025, seeking for the proceeding to be transferred. Initially, the Plaintiff consented to the transfer. On 13 March 2025, the solicitors for the First and Third Defendant provided to my Associate a form of consent order that had been signed for the Plaintiff as well as the First and Third Defendant. That order contemplated the transfer of the proceeding to the Supreme Court of Victoria and that the Plaintiff would pay the First and Third Defendant’s costs of the application to transfer the proceedings on the ordinary basis.

4. On 13 March 2025, the consent orders were also signed on behalf of the Second Defendant and provided to my Associate. However, later on the same day the Second Defendant proposed that the proceeding be transferred to the Federal Circuit and Family Court of Australia in Melbourne, rather than to the Supreme Court of Victoria. The Second Defendant contended that there were related proceedings between the First and Second Defendant in that Court. That change in position by the Second Defendant prompted the Plaintiff to change her position too. The Plaintiff indicated in correspondence that she consented to the Second Defendant’s proposal to transfer the proceeding to the FCFCOA, notwithstanding that she had already consented to the proceeding being transferred to the Supreme Court of Victoria. In summary, by the end of 13 March 2025, the Second Defendant and then the Plaintiff resiled from the consent that they had previously given on that day.

5. The proceeding came before me in the Applications List on 14 March 2025. The proceeding was adjourned for a week given the late change in the positions taken by the Second Defendant and Plaintiff, to enable the parties to confer about the issue of the transfer and to give the Second Defendant an opportunity to make an application to transfer of the proceeding to the FCFCOA, if instructed to do so.

6. The Second Defendant filed a Notice of Motion on 19 March 2025, with a supporting affidavit, seeking orders that the proceedings be transferred to the FCFCOA.

7. On 20 March 2025, the Plaintiff’s solicitor requested a wide volume of documents from the First and Third Defendant about the proceeding in the FCFCOA.

8. When the matter came back before me on 21 March 2025, Counsel for the Plaintiff submitted that the Plaintiff required further documents and information in order to formulate a position in respect of any transfer of the proceedings. The matter was adjourned once more.

9. On 1 April 2025, the Plaintiff issued a Notice to Produce directed to the First and Third Defendant, seeking material relating to the FCFCOA proceedings. It was expressed in very wide terms. The First and Third Defendant objected to that notice.

10. On 4 April 2025, the Second Defendant gave notice to the parties that she proposed to discontinue her application for the proceeding to be transferred to the FCFCOA. Later that day, the Plaintiff gave notice that she consented to that discontinuance. A document headed “Notice of Discontinuance” dated 2 April 2025 and apparently signed by the solicitor for the Second Defendant was filed in the Court Registry. The notice as filed is plainly bad in form (it was incomplete in a number of respects) and it did not effect any discontinuance of the Second Defendant’s Notice of Motion.

11. Over the following days there was some correspondence between the Plaintiff’s solicitor and the solicitor for the First and Third Defendant about the Notice to Produce. On 9 April 2025, the Plaintiff’s solicitor confirmed that the Plaintiff would not be pressing the notice.

12. On 9 April 2025, the solicitor for the First and Third Defendant circulated proposed orders providing for the transfer of the matter to the Supreme Court of Victoria as well as indemnity costs from the Plaintiff and Second Defendant, to be paid forthwith.

13. The matter came before me again on 2 May 2025. Shortly before that hearing, some lengthy affidavits and submissions were filed, principally concerned with the question of costs. In particular, the following documents were filed:

1. an affidavit of Mr Chen (a solicitor for the Plaintiff) affirmed 29 April 2025, comprising 54 paragraphs and running to 316 pages with annexures;

2. an affidavit of Mr Toh (a solicitor for the First and Third Defendants) sworn on 30 April 2025, comprising 49 paragraphs and running to 113 pages with annexures; and

3. written submissions filed for the First and Third Defendant dated 1 May 2025 (10 pages).

14. On 2 May 2025, the parties consented to directions for the exchange of submissions on the question of costs limited to 2 pages and for the question of costs to be determined on the papers.

15. The parties also indicated that there was consent that the proceeding should be transferred to the Supreme Court of Victoria. Mr Shaw KC, for the First and Third Defendant, made submissions about why the transfer should occur.

Transfer of the proceeding

16. Section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act relevantly provides:

(2)  Where—

(a)     a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court), and

(b)     it appears to the first court that …

(iii)     it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,

the first court shall transfer the relevant proceeding to that other Supreme Court.

17. This Court cannot transfer a proceeding pursuant to s 5(2)(b)(iii) merely because the parties consent to the transfer. The Court must consider whether it appears that it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory, in which case it shall transfer the proceeding to that other Court.

18. Mr Shaw submitted that s 5(2)(b)(iii) is engaged for the following reasons:

1. the alleged conduct which forms the basis of the proceeding occurred in Victoria;

2. the land the subject of the alleged purchase agreement and loan transaction is in Victoria;

3. the First and Second Defendant, and the sole director of the Third Defendant (i.e. the First Defendant), all reside in Victoria;

4. the Plaintiff resides in the People’s Republic of China;

5. the proceeding has no connection to New South Wales; and

6. if the proceeding is conducted in New South Wales, the First Defendant would be required to travel to New South Wales with his interpreter and his assistant, as well as his Victoria-based solicitors, which would increase costs and cause inconvenience.

19. None of the other parties disputed any of these propositions.

20. It appears to me, having regard to the reasons advanced by Mr Shaw, to be in the interests of justice for the proceeding to be determined by the Supreme Court of Victoria. I propose to transfer the proceeding to that Court.

Costs

21. The First and Third Defendant seek for the costs of its Notice of Motion filed on 24 February 2025, and the costs of Plaintiff’s Notice to Produce, to be paid for by the Plaintiff and Second Defendant jointly and severally on an indemnity basis and taxed immediately. They also seek that their costs of the Second Defendant’s Notice of Motion filed 19 March 2025 be paid by the Second Defendant on an indemnity basis and taxed immediately.

22. The First and Third Defendant submit that the conduct of the Plaintiff and the Second Defendant “has been extraordinarily reckless and unreasonable”. They contend that those parties have increased the costs and prolonged the application by repeatedly reversing positions and putting the First and Third Defendant, and the Court, to unnecessary trouble and expense, by not following proper procedures. That conduct, they submit, justifies an order that costs be paid on an indemnity basis, and paid forthwith. They rely on Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234 and FAI General Insurance Co Ltd v Burns (1996) 9 ANZ Ins Cas 61-384.

23. The Plaintiff contends that the costs of the First and Third Defendant should be those parties’ costs in the cause, or, alternatively, if she is ordered to pay costs, those costs should be payable on the ordinary basis and only up to 13 March 2025, being the date she signed consent orders agreeing to the transfer of the proceeding to the Supreme Court of Victoria. The Plaintiff submits that all costs incurred in these proceeding after 13 March 2025 were a function solely of the Second Defendant’s conduct in proposing a counter cross-vesting application. She contends that she was obliged to consider the alternative application. She further submits that but for the Second Defendant’s counterproposal, no further costs would have been incurred after 13 March 2025 as the transfer would have been ordered. In relation to the Notice to Produce, the Plaintiff submits that the documents were no longer necessary once the Second Defendant abandoned her application for the transfer of the proceedings to the FCFCOA.

24. The Second Defendant submits that she should not be required to pay the costs of the First and Third Defendant. She submits that, at the very least, the issue of costs should be reserved because of the infancy of the proceedings. She rejects the contention that she engaged in unreasonable conduct. She submits that she raised entirely legitimate concerns as to which court was the most appropriate forum and that her actions have not caused any unnecessary costs.

Decision

25. I accept that the change of position by the Second Defendant and Plaintiff concerning the application by the First and Third Defendant for the proceeding to be transferred to the Supreme Court of Victoria caused an increase in the costs incurred by the First and Third Defendant, and resulted in further hearing time in the Court, as well as delay, that now appears to have been unnecessary.

26. The First and Third Defendant have been successful in obtaining the orders that it sought by their Notice of Motion of 24 February 2025. While those orders were, ultimately, made by consent, there was opposition to the orders by the Plaintiff and Second Defendant for a period of weeks from 13 March 2025 up until about 9 April 2025.

27. It is unfortunate that there has been delay and also unfortunate that the Plaintiff and Second Defendant shifted positions when they did. The additional hearing time that has been taken is also unfortunate. However, I am not satisfied that the conduct of the Plaintiff and Second Defendant is so unreasonable as to justify an order that costs be paid forthwith on an indemnity basis. I would not go so far as to describe their conduct as “reckless”. It appears that the withdrawal of the consent of the Second Defendant to the transfer of the proceeding to the Supreme Court of Victoria was prompted, at least in part, by her (incorrect) assumption that her consent would avoid the need for any Court hearing on 14 March 2025. I was not prepared to make the orders transferring the proceedings in chambers because, as I have indicated, a transfer cannot be made merely because the parties consent to it. I needed to hear from the parties to be satisfied that the necessary conditions for transfer existed and could not merely accede to the consent orders.

28. Once the Second Defendant had identified the FCFCOA as an alternative court that was a preferable court for the proceedings, it seems to me that was appropriate for the Plaintiff to consider that alternative – although the Plaintiff was quick to support the Second Defendant’s position and resile from the consent it had previously given.

29. It is not appropriate to reserve costs due to the infancy of the proceedings, which was the position of the Second Defendant. The question of the transfer of the proceeding is discrete and this Court is well-placed to rule on costs. It is highly undesirable for this Court to leave to the Supreme Court of Victoria the task of seeking to “untangle” what has occurred in this Court: see Michael Anthony Luxury Cars Pty Ltd v Connexwire Ltd (No 2) [2019] NSWSC 1188 at [21]. Whether or not the conduct of the Second Defendant can be said to be “reasonable”, the fact is that she resisted for some weeks the orders that have ultimately been made.

30. In my view, subject to what I say below, justice is done if the Plaintiff and Second Defendant pay the First and Third Defendant’s costs of the Notice of Motion filed 24 February 2025 on the ordinary basis. Those costs should include the costs associated with the Plaintiff’s Notice to Produce dated 1 April 2025.

31. There is no reason to confine the order as to costs to those incurred before 13 March 2025, as the Plaintiff submits. Costs and delay after 13 March 2025 were caused by both the Second Defendant and the Plaintiff, who opposed the application for the transfer for a period of time before reversing their position in April.

32. However, after 9 April 2025, the real dispute between the parties has been about costs. Broadly speaking, the First and Third Defendant have been seeking costs on an indemnity basis while the Plaintiff and Second Defendant have been resisting a costs order. No party has been entirely successful. I have declined to make an order for indemnity costs but consider that the First and Third Defendant are entitled to an order for costs on the ordinary basis. The dispute about costs has been a source of unnecessary expense and delay. There should be no order as to costs after 9 April 2025. The parties should bear their own costs after that time as they all pursued a position as to costs since that date that has been rejected.

33. I would also observe that applications for indemnity costs in matters such as this, which involves reasonably routine matters of procedure, should be discouraged. Those applications often generate substantial unnecessary costs in themselves. That has occurred in this case.

34. The Second Defendant’s Notice of Motion filed 19 March 2025 has not been discontinued in accordance with UCPR r 12.1. It is not pressed by the Second Defendant and should be dismissed. The Second Defendant should pay the costs of the First and Third Defendant on that Notice of Motion on the ordinary basis. There should be no order as to the costs of the Plaintiff because she supported that motion until it was abandoned by the Second Defendant.

35. While I reject the application of the First and Third Defendant for costs to be paid on an indemnity basis, I will order that the costs are payable forthwith. UCPR r 42.7(2) provides that unless the Court otherwise orders, the costs on any interlocutory application in a proceeding are to be paid and otherwise dealt with in the same way as the general costs of the proceeding. That means that, absent an order, costs do not become payable until the conclusion of the proceeding. An order that costs be payable forthwith may be appropriate where the costs order is relevant to a discrete, separately identifiable part of the proceeding or the costs liability will not be affected by the final outcome of the proceeding: In the matter of Tiaro Coal Limited (in liquidation) [2018] NSWSC 1043 at [10]. That is true here. The transfer of the proceeding from this Court to the Supreme Court of Victoria marks a new beginning of the proceeding. The end of the proceeding in this Court should be marked with a costs order that does not travel with the proceeding until its conclusion.

Orders

36. I make the following orders:

1. The proceeding is transferred to the Supreme Court of Victoria pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW).

2. The Plaintiff and Second Defendant are to pay the costs of the First and Third Defendant of the Notice of Motion filed on 24 February 2025 incurred up to and including 9 April 2025 on the ordinary basis (which includes the First and Third Defendant’s costs associated with the Notice to Produce served on 1 April 2025). Those costs are to be paid forthwith.

3. The Notice of Motion filed on 19 March 2025 by the Second Defendant is dismissed.

4. The Second Defendant is to pay the costs of the First and Third Defendant of the Notice of Motion filed on 19 March 2025 on the ordinary basis. Those costs are to be paid forthwith.

5. There otherwise be no order as to costs on either Notice of Motion.

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Decision last updated: 20 May 2025