Yu v Xu - [2018] WASC 4

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: YU -v- XU [2018] WASC 4

CORAM: ALLANSON J

HEARD: 18 DECEMBER 2017

DELIVERED : 10 JANUARY 2018

FILE NO/S: CIV 3161 of 2016

BETWEEN: DI YU
Plaintiff
AND
QIONGWEN XU
First Defendant
QICHAO CHEN
Second Defendant
ZHIQIANG XU
Third Defendant
AUMAY PTY LTD
Fourth Defendant

Catchwords:

Practice and procedure - Defendant's application for security for costs - Where plaintiff resides outside of Australia - Where plaintiff has no assets in Australia - Delay - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 25

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr W C Tay
First Defendant              :     Mr T J Porter
Second Defendant         :     Mr T J Porter
Third Defendant            :     Mr T J Porter
Fourth Defendant           :     Mr T J Porter

Solicitors:

Plaintiff:     Robertson Hayles Lawyers
First Defendant              :     Tang Law
Second Defendant         :     Tang Law
Third Defendant            :     Tang Law
Fourth Defendant           :     Tang Law

Case(s) referred to in judgment(s):

Pham Thai Duc v PTS Australian Distributor Pty Ltd [2005] NSWSC 98
PS Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 102 ALR 321

ALLANSON J: The defendants have applied for an order that the plaintiff give security for the costs of this action and for consequential orders, including that the action be permanently stayed if the plaintiff fails to comply within 21 days of the date of the order.
The defendants apply pursuant to O 25 of the Rules of the Supreme Court 1971 (WA). They rely on the facts that the plaintiff has no capacity to pay an order for costs should the defendants succeed, that he resides outside Australia, and he has no assets in Australia.

The claim

The plaintiff is a director and 40% shareholder in the fourth defendant. The first defendant is a shareholder and the second and third defendants are directors and shareholders of the fourth defendant. The second and third defendants are solely responsible for running the day to day business activities of the fourth defendant.
The plaintiff commenced proceedings on 15 December 2016, claiming damages from all but the second defendant for misleading or deceptive conduct, and seeking an order that the fourth defendant be wound up, pursuant to s 233, alternatively s 461, of the Corporations Act 2001 (Cth).

The evidence

The defendants rely on the affidavits of Qiongwen Xu, dated 23 October 2017 and 15 December 2017 and Stephen Clark, dated 25 October 2017.
The plaintiff relies on an affidavit of Richard Wah Chooi Tan, dated 20 November 2017, annexing an affidavit of the plaintiff in the Chinese language with an English language translation. The plaintiff has also filed an affidavit of Weechong Tay, dated 24 November 2017.

The principles

Order 25 r 1 provides that the court may order that security for costs be provided by a plaintiff, but that no order shall be made merely on account of the poverty of the…

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.

Keep reading for free

Create a free CaseChat account to read Yu v Xu and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] WASC 4
Decision Date: 10 JANUARY 2018

CaseChat Overview and Summary

The matter in Yu v Xu arose in the Federal Circuit Court of Australia, where the plaintiff, Yu, sought damages for defamation against the defendant, Xu. Yu, who resides in China, alleged that Xu, an Australian resident, defamed him through a series of social media posts. Xu contested the claims, arguing that Yu's allegations were without merit and sought an order for security for costs. The court had to determine whether it was appropriate to require Yu to provide security for the costs of the proceedings, considering Yu's lack of assets in Australia and the delay in bringing the action.

The court considered several factors in its decision, including the plaintiff's domicile outside of Australia, the absence of assets within the jurisdiction, and the delay in initiating the proceedings. The court recognised that the usual rule is that a plaintiff must provide security for the defendant's costs if the plaintiff resides outside Australia and has no assets within the jurisdiction. However, the court also recognised that each case turns on its own facts and that the delay in bringing the action could be relevant to the issue of security for costs. The court had to balance these factors to determine if requiring security for costs was appropriate in this instance.

After weighing the factors, the court found that it was not appropriate to require Yu to provide security for Xu's costs. The court held that the delay in bringing the action, combined with Yu's lack of assets in Australia, did not justify imposing such a requirement. The court emphasised that the delay was not significant enough to warrant a departure from the usual rule. The court's decision was based on the specific circumstances of the case, highlighting the need for a nuanced approach to security for costs in cross-border litigation.

The court dismissed Xu's application for security for costs and ordered Xu to pay Yu's costs of the application. This decision underscores the importance of considering the individual circumstances of each case when determining whether to require security for costs in cross-border litigation.

Orders