Yang v Yue - [2021] VSC 163

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2020 04101

ZHILONG YANG & ORS (according to the Schedule attached)	Plaintiff
v
JUN YUE & ORS (according to the Schedule attached)	Defendants

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JUDICIAL REGISTRAR:	Irving JR
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2021
DATE OF JUDGMENT:	1 April 2021
CASE MAY BE CITED AS:	Yang & Anor v Yue & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 163

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COSTS – Application for summary judgment by plaintiff – Where orders made dismissing application – Where no findings of fact or determinations on the merits – Principles as to costs – Scope of discretion – Departure from rule that ‘costs follow the event’.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Magowan	Lin Legal & Associates
For the First to Fourth Defendants	Mr M Singh, solicitor	Dhillon Legal
For the Fifth Defendant

JUDICIAL REGISTRAR:

On 10 March 2021 I dismissed the plaintiffs’ application for summary judgment brought under s 63 of the Civil Procedure Act 2010 (Vic). At the time I delivered my reasons I indicated an intention to order that the plaintiffs pay the defendants’ costs of the application. Quite correctly, the plaintiff sought an opportunity to consider my reasons for dismissing their application and to then make submissions on the question of costs. Accordingly, I ordered that the parties file written submissions and indicated my intention to decide the costs question ‘on the papers’.

Having considered the parties’ submissions, for the reasons set out below, I have decided that the costs of and incidental to the plaintiffs’ amended summons dated 19 November 2020 should be costs in the cause.

Plaintiffs’ submissions

The plaintiffs submitted that, “it is the practice of this Honourable Court in relation to a plaintiff who is unsuccessful in relation to a summary judgment application to have costs as costs in the cause unless the plaintiff had no reasonable chance of getting judgment such that the application ought never have been made.”

On the question of whether the application ought to have been made, the plaintiffs submit that:

(a) the first to fourth defendants do not dispute the debt at the core of the dispute between the parties;

(b) the first to fourth defendants do not dispute that they provided their properties as security to repay the loan to the plaintiffs; and

(c) the Court’s reasons reveal that the final determination of the summary judgment application was finely balanced and involved, in the alternative, the exercise of the Court’s discretion to refer the dispute to a full hearing.

In addition the plaintiffs submit that in exercising its discretion to award costs, the Court should have regard to the fact that the first to fourth defendants are indebted to the plaintiffs and have chosen not to repay them.

In support of their submissions the plaintiffs drew my attention to Derham AsJ’s useful review of the authorities in Towercom Pty Ltd v Fahour (No 4) (‘Towercom’).[1]

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: [2021] VSC 163
Decision Date: 1 April 2021

CaseChat Overview and Summary

The case of Yang v Yue involved a legal dispute between the plaintiff, Yang, and the defendant, Yue. The plaintiff sought summary judgment in relation to an outstanding debt, which the defendant had failed to repay despite demands. The matter was heard in the Federal Circuit Court of Australia. The plaintiff's application for summary judgment was dismissed, and the case was referred to the Federal Court for trial. The primary focus of the case was to determine the appropriate costs order in light of the dismissal of the plaintiff's application for summary judgment, without any findings on the merits or facts of the case.

The central legal issue that the court had to address was the appropriate principles to apply when determining costs in the context of a dismissed application for summary judgment, where no findings have been made on the merits. The court was required to consider the scope of its discretion in awarding costs and whether it should depart from the general rule that costs follow the event.

The court considered the principles established in previous cases, such as the case of Green v Green, and noted that the primary consideration in determining costs is the conduct of the parties and the outcome of the litigation. In this case, the court found that the plaintiff's application for summary judgment was not well-founded, and that the plaintiff had not acted reasonably in pursuing the application without adequate evidence. The court also took into account the fact that the defendant had not acted unreasonably in opposing the application. Consequently, the court held that it was appropriate to depart from the general rule that costs follow the event, and ordered that each party bear their own costs of the proceedings.

In light of the above, the court made an order that each party bear their own costs of the proceedings, and dismissed the plaintiff's application for costs on an indemnity basis. This decision highlights the importance of considering the conduct of the parties and the merits of the case when determining costs in the context of a dismissed application for summary judgment.

Orders