Xu v Cao & Du Management Pty Ltd - [2024] NSWSC 461

Supreme Court

New South Wales

Medium Neutral Citation: Xu v Cao & Du Management Pty Ltd [2024] NSWSC 461
Hearing dates: 18 April 2024
Date of orders: 26 April 2024
Decision date: 26 April 2024
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
(1)   The order finally pressed in relation to the Cao notice must be refused;
(2)   The costs of the Cao motion must be borne by the plaintiffs and cross defendants, as agreed or assessed; and
(3)   The costs of the Xu motion are to be costs in the cause.

Catchwords:
CIVIL PROCEDURE – notice to produce the terms of claimed retainers – application to set aside notice to produce the terms of claimed retainers – whether the order pressed in relation to the notice to produce is required under either rr 21 or 34 of the Uniform Civil Procedure Rules 2005 (NSW) – the order is not required – the notice to produce does not identify specific documents – the order pressed must be refused
COSTS – a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed – order depends on how parties have acted – plaintiff effectively surrendered to defendant – costs of motion must be borne by plaintiff
COSTS – all parties had a measure of success in relation to the motion – costs are to be costs in the cause

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 98
Uniform Civil Procedure Rules 2005 (NSW), rr 21.1(2), 21.9(2), 34.2

Cases Cited: Ahn v Toppro Pty Ltd [2016] NSWSC 221
Chandrasekaran v Western Sydney Local Health District [2023] NSWCA 219
Chapman v LuminisPty Ltd [2003] FCAFC 162
Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326
Mulley v Manifold (1959) 103 CLR 341; [1959] HCA 23
Norris v Kandiah [2007] NSWSC 1296
Patonga Beach Holdings Pty Ltd v Lyon [2009] NSWSC 869
Re Minister for Immigration & EthnicAffairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Category: Procedural rulings
Parties: Jaiqing Xu (Plaintiff)
Cao & Du Management Pty Ltd (First Defendant)
Howard Hao Ting Cao (Second Defendant)
Representation:
Counsel:
J Li (Plaintiff)
R Alkadamani (Defendants)
Solicitors:
CKSD Lawyers (Plaintiff)
Independent Legal (Defendants)

File Number(s): 2022/78620
Publication restriction: Nil

JUDGMENT

Mr Xu brought these proceedings in 2022 seeking to recover some $6,600,00 which he claims Cao & Du Management Pty Ltd and Mr Cao, its director and secretary, who guaranteed the loan, owe him under a loan agreement which they had entered in 2016, under which he had advanced $3,300,000 which became repayable in 2018. Only some $300,000 was repaid. With interest continuing to accrue at the specified default rate, it is estimated that by November 2023, over $36 million was owed.
This claim is defended by Cao & Du Management and…

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: [2024] NSWSC 461
Decision Date: 26 April 2024

CaseChat Overview and Summary

The case of Xu v Cao & Du Management Pty Ltd was heard in the Supreme Court of New South Wales. The plaintiff, Xu, sought a review of a notice to produce documents related to the terms of claimed retainers issued by the defendant, Cao & Du Management Pty Ltd. The primary legal issue before the court was whether the order sought by Xu in relation to the notice to produce was necessary under either rule 21 or rule 34 of the Uniform Civil Procedure Rules 2005 (NSW). The court found that the order was not required as the notice to produce did not identify specific documents. Consequently, the application to set aside the notice to produce was dismissed.

In terms of costs, the court examined the conduct of the parties during the motion. Although there was no hearing on the merits and the plaintiff no longer wished to proceed, the court was required to make an order for costs. Given that the plaintiff effectively surrendered to the defendant, the court ruled that the costs of the motion were to be borne by the plaintiff. However, as all parties had a measure of success in relation to the motion, the costs were to be costs in the cause.

The final orders of the court were that Xu's application to set aside the notice to produce was dismissed, and that the costs of the motion were to be borne by Xu. However, since all parties had a measure of success, the costs were to be costs in the cause. This meant that the costs were to be apportioned among the parties according to the extent of their success in the motion.

Orders