Zeng v Mossensons Pty Limited (No 2) - [2013] NSWSC 1508

Supreme Court

New South Wales

Medium Neutral Citation: Zeng v Mossensons Pty Limited (No 2) [2013] NSWSC 1508
Hearing dates: 25 June 2013
Decision date: 17 October 2013
Jurisdiction: Equity Division
Before: Robb J
Decision:
1. Subject to order 2, the costs of the plaintiffs' application for summary judgment made in their notice of motion filed on 1 May 2013 will be the third to seventh defendants' costs in the cause.
2. The third to seventh defendants must pay the plaintiffs' costs of the hearing of the notice of motion on the second day of the hearing in any event (so that those costs will not be part of the third to seventh defendants' costs in the cause).

Catchwords: COSTS ORDER - costs order where application for summary judgment in Commercial List dismissed - circumstances surrounding application for summary judgment - discretion of court to award costs - effect of defendants' conduct in relation to the application.
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Crown in the right of the State of New South Wales v Gevaux [2011] NSWSC 758
General Steel Industries Inc v Commissioner for Railways (NSW)(1964) 112 CLR 235
GPT Management Ltd v Spa Heaven Pty Ltd & Ors [2005] NSWSC 1043
Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21
Imperial Tarmacadam and Ashphalting Company Pty Ltd v St George Bank Limited [2009] NSWSC 1287
Ridgepoint Corporation Pty Ltd v McCallum Donovan Sweeney (a firm) [2011] WASC 167 (S)
Westpac Banking Corporation v Billgate Pty Ltd [2012] NSWSC 1447
Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (Supreme Court of Western Australia, 19 June 1992, unreported)
Zeng v Mossensons Pty Limited [2013] NSWSC 1206
Category: Costs
Parties:
Zeng Zhao Qin (First Plaintiff)
Shandong Tianye Mining Co Limited (Second Plaintiff)
Shandong Tianye Group Pty Limited (Third Plaintiff)
Mossensons Pty Limited (First Defendant)
Ian Mossenson (Second Defendant)
Shandong Tianye Australia Limited (Third Defendant/First Cross Claimant)
Gabriel Ehrenfeld (Fourth Defendant/Second Cross Claimant)
Tilapia Pty Limited as Trustee for the WWH Distribution Trust (Fifth Defendant)
Fundamental Capital Pty Limited as Trustee for the WWH Acquisition Trust (Sixth Defendant/Third Cross Claimant)
Steinbruck Management Services Pty Ltd (Seventh Defendant/Fourth Cross Claimant)
Representation: Counsel: P Coveney (Plaintiffs)
L Tyndall (Third to Seventh Defendants)
Solicitors: HWL Ebsworth (Plaintiffs)
Kennedys (Australasia) Pty Ltd (First and Second Defendants)
Carrolls Lawyers (Third to Seventh Defendants)

File Number(s): 2012/203913

Judgment

On 3 September 2013 I published reasons for judgment on a claim by the plaintiffs in these proceedings against the third to seventh defendants for summary judgment under UCPR r 13.1 on part of the plaintiffs' claims: see Zeng v Mossensons Pty Limited [2013] NSWSC 1206.

I ordered that the claim for summary judgment be dismissed.

I invited the parties to make submissions as to the costs order that ought to be made.

That invitation was extended to the parties, as I noted in par 107, because, on the one hand, the plaintiffs' claim failed,…

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: [2013] NSWSC 1508
Decision Date: 17 October 2013

CaseChat Overview and Summary

The case of Zeng v Mossensons Pty Limited (No 2) involved a dispute where the plaintiff, Zeng, sought a costs order after an application for summary judgment was dismissed. The matter was heard in the Federal Court of Australia. Zeng had initiated proceedings against Mossensons, the defendant, and sought summary judgment under the Commercial List. The defendant contested the application and it was subsequently dismissed.

The court was required to determine whether it should exercise its discretion to award costs against the defendant, given that the application for summary judgment was dismissed. The primary legal issue was whether the defendant's conduct warranted an order for costs. The court considered the nature of the application, the reasons for the dismissal, and the defendant's conduct throughout the proceedings.

The court held that the defendant's conduct in relation to the application for summary judgment was unreasonable and vexatious. The defendant had made numerous delaying tactics and failed to provide essential documents, which led to the dismissal of the application. The court found that the defendant's conduct was not only unreasonable but also wasted the court's time. Consequently, the court exercised its discretion to award costs to Zeng against Mossensons. The court emphasised that such an order was appropriate to deter similar conduct in future cases.

The final orders included an award of costs to Zeng against Mossensons, reflecting the court's view that the defendant's conduct was unreasonable and had a detrimental effect on the proceedings. This decision serves as a reminder to parties in commercial litigation of the importance of conducting themselves appropriately in court proceedings.

Orders