Xu v Jiang - [2020] NSWDC 302

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Xu v Jiang [2020] NSWDC 302
Hearing dates: 12 June 2020
Date of orders: 12 June 2020
Decision date: 12 June 2020
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), these proceedings are dismissed with costs.
(2) Pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), make gross sum costs orders against the plaintiff as follows: (a) As to the costs set out in the itemised account which is annexure f to the affidavit to Mr Cai of 19 May 2020, the sum of $30,000 costs plus $9,012.53, making a total of $39,012.53; and (b) As to the estimated future costs referred to in paragraph 19 of Mr Cai’s affidavit, the sum $2,750, making a total of $41,762.53.
(3) Pursuant to UCPR r 29.7, the court is to notify the plaintiff of these orders by forwarding a copy of the entry of the orders onto JusticeLink to the trustee in bankruptcy, Mr David John Kerr of RSM Australia Pty Ltd, the trustee of the plaintiff’s estate.

Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal pursuant to UCPR r 12.7(1) – plaintiff commences proceedings for repayment of alleged loan – defendant files defence asserting claim is fraudulent and brings application for security for costs on the basis that the defendant is ordinarily resident in China – plaintiff declares himself bankrupt – trustee in bankruptcy does not make any election to continue the proceedings in accordance with s 60 of the Bankruptcy Act 1966 (Cth) – application for summary dismissal of proceedings and a gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – whether the usual order of costs to follow the event may be made where proceedings abandoned by reason of bankruptcy – whether an order for a gross sum costs order is appropriate – whether the court can be satisfied with the information provided as to quantum – gross sum costs order for $41,762.53
Legislation Cited: Bankruptcy Act 1966 (Cth), s 60
Civil Procedure Act 2005 (NSW), s 98(4)(c)
Uniform Civil Procedure Rules 2005 (NSW), rr 12.7 and 29.7
Cases Cited: Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673; (1999) 93 FCR 1
Bechara trading as Bechara and Company v Bates [2016] NSWCA 294
Cole v Challenge Bank Ltd [2002] FCAFC 200
Frigger v Rowe Bristol Lawyers Pty Ltd [2020] WASC 5
Hamod v State of New South Wales and Anor [2011] NSWCA 375
Harrison & Anor v Schipp (2002) 54 NSWLR 738
Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Argus [2007] NSWSC 23
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681
Penson v Titan National Pty Limited (No 3) [2015] NSWCA 121
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Star Diamond…

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: [2020] NSWDC 302
Decision Date: 12 June 2020

CaseChat Overview and Summary

In the matter of Xu v Jiang, the plaintiff sought repayment of an alleged loan. The defendant filed a defence asserting the claim was fraudulent and applied for security for costs, given the defendant was ordinarily resident in China. The plaintiff subsequently declared himself bankrupt, and the trustee in bankruptcy did not elect to continue the proceedings under section 60 of the Bankruptcy Act 1966 (Cth). The defendant then applied for summary dismissal and a gross sum costs order. The court needed to decide whether the usual order of costs to follow the event could be made where the proceedings were abandoned due to the plaintiff’s bankruptcy, whether an order for gross sum costs was appropriate, and whether the court could be satisfied with the information provided regarding the quantum of costs.

The court concluded that because the proceedings were abandoned by the plaintiff’s bankruptcy, the usual order of costs to follow the event was not applicable. Instead, the court considered the appropriate costs order under section 98(4) of the Civil Procedure Act 2005 (NSW). The court was satisfied with the information provided as to quantum, which included a detailed itemised account and an estimate of future costs. Accordingly, the court dismissed the proceedings with costs and ordered the plaintiff to pay a gross sum of $41,762.53 in costs. The court further ordered that notice of these orders be sent to the trustee in bankruptcy.

Orders

Orders of the court

(1) Pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), these proceedings are dismissed with costs.

(2) Pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), make gross sum costs orders against the plaintiff as follows: (a) As to the costs set out in the itemised account which is annexure f to the affidavit to Mr Cai of 19 May 2020, the sum of $30,000 costs plus $9,012.53, making a total of $39,012.53; and (b) As to the estimated future costs referred to in paragraph 19 of Mr Cai’s affidavit, the sum $2,750, making a total of $41,762.53.

(3) Pursuant to UCPR r 29.7, the court is to notify the plaintiff of these orders by forwarding a copy of the entry of the orders onto JusticeLink to the trustee in bankruptcy, Mr David John Kerr of RSM Australia Pty Ltd, the trustee of the plaintiff’s estate.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Xu v Jiang [2020] NSWDC 302
Hearing dates:	12 June 2020
Date of orders:	12 June 2020
Decision date:	12 June 2020
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), these proceedings are dismissed with costs. (2) Pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), make gross sum costs orders against the plaintiff as follows: (a) As to the costs set out in the itemised account which is annexure f to the affidavit to Mr Cai of 19 May 2020, the sum of $30,000 costs plus $9,012.53, making a total of $39,012.53; and (b) As to the estimated future costs referred to in paragraph 19 of Mr Cai’s affidavit, the sum $2,750, making a total of $41,762.53. (3) Pursuant to UCPR r 29.7, the court is to notify the plaintiff of these orders by forwarding a copy of the entry of the orders onto JusticeLink to the trustee in bankruptcy, Mr David John Kerr of RSM Australia Pty Ltd, the trustee of the plaintiff’s estate.
Catchwords:	PRACTICE AND PROCEDURE – application for summary dismissal pursuant to UCPR r 12.7(1) – plaintiff commences proceedings for repayment of alleged loan – defendant files defence asserting claim is fraudulent and brings application for security for costs on the basis that the defendant is ordinarily resident in China – plaintiff declares himself bankrupt – trustee in bankruptcy does not make any election to continue the proceedings in accordance with s 60 of the Bankruptcy Act 1966 (Cth) – application for summary dismissal of proceedings and a gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – whether the usual order of costs to follow the event may be made where proceedings abandoned by reason of bankruptcy – whether an order for a gross sum costs order is appropriate – whether the court can be satisfied with the information provided as to quantum – gross sum costs order for $41,762.53
Legislation Cited:	Bankruptcy Act 1966 (Cth), s 60 Civil Procedure Act 2005 (NSW), s 98(4)(c) Uniform Civil Procedure Rules 2005 (NSW), rr 12.7 and 29.7
Cases Cited:	Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673; (1999) 93 FCR 1 Bechara trading as Bechara and Company v Bates [2016] NSWCA 294 Cole v Challenge Bank Ltd [2002] FCAFC 200 Frigger v Rowe Bristol Lawyers Pty Ltd [2020] WASC 5 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Harrison & Anor v Schipp (2002) 54 NSWLR 738 Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Argus [2007] NSWSC 23 Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681 Penson v Titan National Pty Limited (No 3) [2015] NSWCA 121 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Star Diamond…