Yu v H&J Aus Trading Pty Ltd - [2020] NSWSC 1843

Supreme Court

New South Wales

Medium Neutral Citation: Yu v H&J Aus Trading Pty Ltd [2020] NSWSC 1843
Hearing dates: 16 December 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
1. By consent, set aside order 1 made by the Registrar on 5 August 2020.
2. Otherwise confirm orders 2, 3 and 4 made by the Registrar on 5 August 2020.
3. Dismiss the first defendant’s notice of motion filed 3 September 2020.
4. The first defendant is to pay the plaintiff’s costs of the notice of motion.

Catchwords:
COSTS - party/party – preliminary discovery – where Registrar ordered preliminary discovery against two parties – where review of Registrar’s decision sought by one party – where after hearing of review application defendant made offer to provide documents - whether offer amounted to surrender - where defendant did not provide any explanation of what changed to explain why offer was eventually made - where plaintiff’s position remained unchanged throughout - where plaintiff entitled to costs of the notice of motion to review the Registrar’s decision

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) rr 5.2, 5.3

Cases Cited:
Kiama Council v Grant [2006] NSWLEC 96; 143 LGERA 441
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
One.Tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270
Re Minister for Immigration and Ethnic Affairs: Ex parte Lai Qin (1997) 186 CLR 626

Texts Cited:
Nil

Category: Costs
Parties: Jian Yu (Plaintiff)
H&J Aus Trading Pty Ltd (First Defendant)
National Australia Bank Limited (Second Defendant)
Representation:
Counsel:
N Furlan (Plaintiff)
M Heath (First Defendant)
No appearance - excused (Second Defendant)
Solicitors:
Zhang Shijing Lawyers (Plaintiff)
Accuro Maxwell (First Defendant)
Norton Rose Fulbright Australia (Second Defendant)

File Number(s): 2019/391692
Publication restriction: Nil

Judgment

The first defendant by notice of motion filed 3 September 2020 sought a review of the decision of the Registrar made on 5 August 2020. That decision was made on a summons filed by the plaintiff on 12 December 2019 seeking orders under rr 5.2 and 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) for preliminary discovery.
The summons also sought similar orders against the second defendant, National Australia Bank Limited.
The categories of documents sought in relation to the first defendant were as follows:

1.   All documents relating to or recording the receipt, collection or payment of moneys by or on behalf of the first defendant from the plaintiff into National Australia Bank account number 934214248 (NAB Account), being the following sums of money:
1.1   $1,000.00 on 21 June 2019 from the bank account identified by BSB 064462, account number 10265257;
1.2   $4,000.00 on 24 June 2019 from the bank account identified by BSB 064462, account number 10265257;
1.3   $30,000.00 on 1 July 2019 from the bank account identified by the account number 486 695 462;
1.4   $35,000.00 on 2 July 2019 from the bank account identified by the account number…

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] NSWSC 1843
Decision Date: 17 December 2020

CaseChat Overview and Summary

The matter of Yu v H&J Aus Trading Pty Ltd involved a dispute concerning preliminary discovery orders. The plaintiff, Yu, sought documents from the defendant, H&J Aus Trading Pty Ltd, under a discovery order. The defendant initially resisted the order, prompting the Registrar to direct preliminary discovery against both parties. Dissatisfied with the Registrar’s decision, the defendant applied for a review, which was subsequently heard. During the review hearing, the defendant made an offer to provide the documents, but did not provide any explanation as to why the offer was made at that time. The plaintiff maintained their position throughout, arguing they were entitled to the costs associated with the notice of motion to review the Registrar’s decision.

The primary legal issues the court had to address were whether the defendant’s offer to provide documents amounted to a surrender and whether the plaintiff was entitled to the costs of the notice of motion to review the Registrar’s decision. The court considered the circumstances under which the defendant made the offer, the lack of any explanation for the change in position, and the plaintiff's consistent stance throughout the proceedings. The court noted that the defendant did not provide any justification for the timing of their offer, which was made only during the review hearing. The plaintiff's position remained unchanged throughout the proceedings, and they argued that they were entitled to the costs incurred in relation to the review application.

The court held that the defendant's offer to provide documents did not amount to a surrender and that the plaintiff was not entitled to the costs of the notice of motion to review the Registrar’s decision. The court reasoned that the plaintiff's consistent position and the lack of any explanation from the defendant regarding the change in stance did not warrant an award of costs. The court emphasised that the plaintiff's entitlement to costs was contingent on demonstrating a change in circumstances or an unjustified delay by the defendant, neither of which was present in this case. Consequently, the plaintiff was not awarded the costs they sought.

Orders