Yu Xiao v BCEG International (Australia) Pty Ltd

[2022] NSWCA 223

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Yu Xiao v BCEG International (Australia) Pty Ltd [2022] NSWCA 223

Hearing dates:

31 October 2022

Date of orders:

3 November 2022

Decision date:

03 November 2022

Before:

Macfarlan JA

Decision:

(1) Order pursuant to r 51.50(1) of the UCPR that the appellants within 14 days, or such longer period as the Registrar may allow, provide security for the respondent’s costs of the appeal in the amount of $120,000 by payment of that sum into Court, or in such other manner as the Registrar approves.

(2) Order the appellants to pay the respondent’s costs of its notice of motion filed on 20 October 2022.

Catchwords:

APPEAL – security for costs of appeal – UCPR r 51.50 – “special circumstances” found to exist – fraud finding against appellants at first instance not challenged on appeal – adverse findings at first instance in relation to appellant’s conduct during hearing

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 51.50

Cases Cited:

Barrett Property GroupLtd v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823

Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319

Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247

Swift v McLeary [2013] NSWCA 173

Zong v Wang [2021] NSWCA 214

Category:

Procedural rulings

Parties:

BCEG International (Australia) Pty Ltd (Applicant on motion/ Respondent on appeal)
Yu Xiao (Respondent on motion / First appellant on appeal)
Yan Ying Chen (Respondent on motion / Second appellant on appeal)
Interlink Laboratory Pty Ltd (Third Appellant)
Interlink Wagga Central Pty Ltd (Fourth Appellant)
West Wyalong Marketplace Pty Ltd (Fifth Appellant)

Representation:

Counsel:
D L Williams SC / N D Riordan (Applicant on motion / Respondent on appeal)
J C Giles SC / B le Plastrier (Respondent on motion / Appellant on appeal)

Solicitors:
Thomson Geer (Applicant on motion / Respondent on appeal)
HWL Ebsworth Lawyers (Respondent on motion / Appellant on appeal)

File Number(s):

2022/243445

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2022] NSWSC 972

Date of Decision:

22 July 2022

Before:

Rees J

File Number(s):

2019/310768

Judgment

1. This is an application by BCEG International (Australia) Pty Ltd (“BCEG”), the respondent to the appeal, for an order that the appellants, who comprise Mr Xiao, Ms Chen and a number of corporate entities, provide security for BCEG’s costs of the appeal. The appellants accept that the quantum of the security sought, $120,000, is reasonable.

2. The application is made under r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”) which provides that the Court may in “special circumstances” order that an appellant provide security for a respondent’s costs of the appeal. Observations as to the nature of circumstances that may be special for this purpose were made by Basten JA in Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18] and by Gleeson JA in Swift v McLeary [2013] NSWCA 173 at [27]–[30] (“Swift”). Evidence of delinquent conduct and non-compliance with court orders will be a significant factor (see Zong v Wang [2021] NSWCA 214 at [28]–[33]), as will the dissipation or encumbering of assets, particularly at or around the time of, or after, judgment (see Swift at [44]–[45].

3. Moreover, in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 325, Gleeson CJ said, in the context of a Mareva injunction application, that relevant to whether there was a danger of the defendant in that case absconding or removing assets from the jurisdiction, or disposing of them within the jurisdiction, was the nature of a scheme in which the defendant had allegedly been involved. His Honour said that the plaintiff had established a prima facie case that the defendant had been involved in “serious dishonesty involving diversion of money from its proper channels” (ibid). His Honour said that in these circumstances it was “reasonable to infer that [the defendant] is not the sort of person who would, unless restrained, preserve his assets intact so that they might be available to his judgment creditor” (at 326). These observations are in my view equally relevant to the identification of “special circumstances” for the purpose of a security for costs application and to the manner in which the Court’s discretion might appropriately be exercised.

4. In seeking security for its costs, BCEG relied on a number of matters, including the asserted impecuniosity of the appellants. It acknowledged however that such impecuniosity would not of itself constitute special circumstances. It is unnecessary to address the question of impecuniosity as I am of the view that the primary judge’s findings concerning the appellants’ conduct in relation to the transactions the subject of the proceedings, as well as their conduct in the course of the proceedings at first instance, constitutes “special circumstances” to warrant the making of the order for security sought by the respondent.

5. The proceedings in the Equity Division involved multiple claims, including for breach of fiduciary duties, against directors and the companies controlled by them. The nature of the proceedings was described in detail by Rees J in her thorough judgment of 22 July 2022 finding in favour of BCEG ([2022] NSWSC 972). In a subsequent judgment concerned with costs, her Honour referred to two individual appellants, Mr Xiao and Ms Chen, as having “engaged in serious fraud” ([2022] NSWSC 1221) at [59] and continued at [62] and [63] as follows:

“The trial was waylaid on day seven, when it became apparent during the course of Mr Xiao’s cross-examination that, during a lunch adjournment, he was executing documents to encumber his assets. Time was taken to deal with this matter by making asset preservation orders. Indeed, the matter was re-listed for a further freezing order on 8 June 2022, whilst judgment was reserved, when it appeared that Mr Xiao had encumbered his assets notwithstanding the order made by consent following BCEG’s urgent application during the hearing.

Overall, I consider that the amended defence and Mr Xiao’s detailed affidavit were directed towards misleading the Court as to what had happened. The amended defence and affidavit, together with the defendants’ approach to the proceedings generally, had the result of prolonging the proceedings and the trial unnecessarily, leading to BCEG incurring costs. They amounted to a determined effort on the part of the defendants to establish a defence which Mr Xiao and Ms Chen must have known to be false. Like Barrett Property Group [Ltd v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823], this was not a case where the parties came before the Court seeking adjudication of honestly held differences in versions of events. Rather, Mr Xiao and Ms Chen maintained a fabricated defence and did so from a position of special advantage where they ran BCEG at the time of these events. I consider their conduct to amount to relevant delinquency or exceptional circumstances warranting an indemnity costs order. This is not a case involving witnesses who gave evidence believing it to be true but as to which they were mistaken. Mr Xiao and Ms Chen were aware of the truth. They were there at the time when these events occurred; they committed the fraud.”

6. The appeal against the principal judgment does not challenge the finding of fraud but is instead confined to issues of causation and relief. That makes the present case a stronger one than Patterson v BTR where findings of misconduct had only been established on a prima facie basis. The substantive findings of fraud in this case give rise, as the respondent contends, to the conclusion that there is “a risk that the respondent will not recover costs that may ultimately be awarded in its favour” because the Court orders for payment of costs may simply not be obeyed or “because the appellant[s] may take steps to arrange [their] affairs such that [they have] insufficient assets to discharge the liability” for costs (see the written submissions at [27]). The same conclusion follows from her Honour’s descriptions quoted in [5] above of what occurred at the trial although I appreciate that to some extent these findings may fall for further consideration in contempt of court proceedings against the appellants that have been commenced, and remain undetermined.

7. For these reasons, I make the following orders:

1. Order pursuant to r 51.50(1) of the UCPR that the appellants within 14 days, or such longer period as the Registrar may allow, provide security for the respondent’s costs of the appeal in the amount of $120,000 by payment of that sum into Court, or in such other manner as the Registrar approves.

2. Order the appellants to pay the respondent’s costs of its notice of motion filed on 20 October 2022.

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Decision last updated: 03 November 2022