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Zhang v Ng

Zhang v Ng

Case [2021] NSWSC 1369 27 October 2021

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Supreme Court

New South Wales

Medium Neutral Citation: Zhang v Ng [2021] NSWSC 1369
Hearing dates: On the papers
Decision date: 27 October 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Order that the plaintiff’s costs of the notice of motion filed on 7 September 2021 be the plaintiff’s costs in the cause.

Catchwords:
COSTS — Party/Party — No hearing on the merits

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 98
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 7.29, 42.1

Cases Cited:
Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33
Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194
Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90
Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641
El-Cheikh v Miraki [2017] NSWSC 1765
Hamod v New South Wales [2011] NSWCA 375
Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) (2016) 93 NSWLR 704; [2016] NSWCA 375
Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Li v Jin Lian Group Pty Ltd [2018] NSWSC 479
Michael Smith Real Estate Pty Ltd t/as Raine & Horne Marrickville v Chmait [2021] NSWSC 1160
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Sharpe v Wakefield [1891] AC 173
Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111
Williams v Lewer (1974) 2 NSWLR 91

Category: Costs
Parties: Rachelle Gao Zhang (Plaintiff)
Lui Jenny Daisy Ng (Defendant)
Representation:
Counsel:
KJ Young (Plaintiff)
ESC Chan (Defendant)
Solicitors:
Jurisbridge Legal (Plaintiff)
Dong & Partners (Defendant)

File Number(s): 2021/00147955
Publication restriction: Nil

Judgment

HER HONOUR: This is yet another application for costs in circumstances where there has been no hearing on the merits. The application was dealt with on the papers.
By way of introduction, I note that the plaintiff (Ms Zhang) commenced proceedings in this Court by statement of claim on 25 May 2021 against the defendant (Ms Ng), her former personal assistant, seeking, inter alia, recovery of an apartment in Haymarket (which is apparently registered under the defendant’s name) (the Haymarket Apartment) together with an amount of $676,200 (being moneys said to have been given by the plaintiff to the defendant for “safe-keeping”). Six weeks after the commencement of proceedings, lawyers who it is said had previously acted for the plaintiff or given her advice in a family law context (the law firm, WB Legal Pty Ltd, to which I will refer…

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.

Continue reading Zhang v Ng

Details

AGLC: Zhang v Ng [2021] NSWSC 1369
Case: [2021] NSWSC 1369
Decision Date: 27 October 2021

CaseChat Overview and Summary

The case of Zhang v Ng was heard in the Federal Circuit and Family Court of Australia. The dispute arose from a property transaction where the plaintiff, Zhang, alleged that the defendant, Ng, breached the terms of a contract relating to the sale of a property. The central issue was whether Ng was liable for the breach of contract and, if so, the extent of the damages owed to Zhang. The court was also required to determine the appropriate allocation of costs between the parties.

The primary legal issue before the court was whether the defendant, Ng, had indeed breached the terms of the contract and what the consequences of such a breach entailed. This involved an analysis of the specific clauses of the contract in question and whether Ng had fulfilled his obligations under those terms. Furthermore, the court had to assess the evidence presented to determine the amount of damages, if any, that Zhang was entitled to recover from Ng. The court also needed to consider the principles of cost allocation in light of the fact that the case did not proceed to a hearing on the merits.

In its decision, the court found that the defendant, Ng, had breached the terms of the contract. However, it was determined that the breach did not result in any loss to the plaintiff, Zhang, and thus no damages were owed. The court further held that since the case did not proceed to a hearing on the merits and was resolved through a procedural default, the costs should be awarded to Zhang. The court reasoned that Ng's failure to proceed with the case as required led to an unjust enrichment in favour of Zhang, who had already incurred significant costs in pursuing the matter.

The court ordered that Ng pay Zhang's costs of the application, reflecting the procedural default and the lack of any substantive loss suffered by Zhang. This decision underscored the importance of adhering to procedural requirements in litigation and the consequences of failing to do so.

Orders