Zhang v Popovic (No. 2) - [2016] NSWSC 666

Supreme Court

New South Wales

Medium Neutral Citation: Zhang v Popovic (No. 2) [2016] NSWSC 666
Hearing dates: 5 May 2016 and written submissions thereafter
Decision date: 25 May 2016
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Order the plaintiff to pay the seventh defendant’s costs (including any reserved costs) of the proceedings on the ordinary basis until 10 March 2016 and on an indemnity basis thereafter.

(2) Subject to (3) and (4) below, order the first, second and sixth defendants to pay the plaintiff’s costs (including any reserved costs) of the proceedings.

(3) Order the sixth defendant to pay the costs which the plaintiff is liable (pursuant to order (1)) to pay the seventh defendant but on the ordinary basis only.

(4) Order the sixth defendant to pay the costs to which the first and second defendants are liable to pay to the plaintiff.

(5) Order the sixth defendant to pay the first and second defendants’ costs of the proceedings, including their cross-claims.

(6) Dismiss the sixth defendant’s notice of motion filed on 26 April 2016.

(7) Order the sixth defendant to pay the costs of John Tabuso, the respondent to its notice of motion filed on 26 April 2016.
(8) Note that the effect of orders (1) and (3) is that the plaintiff remains liable to the seventh defendant for the difference between its costs on an indemnity basis and its costs on the ordinary basis for the period from 10 March 2016.
Catchwords:
COSTS – plaintiff successful against first, second and sixth defendants and unsuccessful against seventh defendant – first, second and sixth defendants liable for plaintiff’s ordinary costs – sixth defendant insurer liable to indemnify first and second defendants – seventh defendant made Calderbank offer and Offer of Compromise– plaintiff liable for indemnity costs of seventh defendant after non-acceptance of Offer of Compromise – plaintiff seeking Sanderson or Bullock order against unsuccessful defendants in respect of liability for successful defendant’s costs – Bullock order made against sixth defendant for seventh defendants costs on ordinary basis – plaintiff liable for difference between seventh defendant’s ordinary and indemnity costs after non-acceptance of offer
COSTS – sixth defendant made application for costs against non-party to proceedings – non-party a former director of third defendant who made statements leading to joinder of seventh defendant to the proceedings – no exceptional circumstances support making order against non-party
Legislation Cited: Bankruptcy Act 1966 (Cth), s 58
Civil Procedure Act 2005 (NSW), ss 98, 101
Corporations Act 2001 (Cth), s 601D
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), ss 5, 6
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1, 42.15A
Cases Cited: Baxter v Obacelo [2001] HCA 66; 205 CLR 635
Bullock v London General Omnibus Company [1907] 1 KB 264
Calderbank v Calderbank [1975] 3 All ER 333
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Regency Media Pty Ltd v AAV Australia [2009] NSWCA 368
Sanderson v Blyth Theatre Co [1903] 2 KB 533
Symphony Group…

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 Zhang v Popovic (No. 2) 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: [2016] NSWSC 666
Decision Date: 25 May 2016

CaseChat Overview and Summary

In Zhang v Popovic (No. 2), the plaintiff sought costs against multiple defendants, some of whom were successful and others unsuccessful in the proceedings. The court was tasked with determining the appropriate costs orders in light of the plaintiff's partial success and the various offers made during the litigation. The plaintiff had been successful against the first, second, and sixth defendants, while being unsuccessful against the seventh defendant. The court considered the implications of the Calderbank offer and Offer of Compromise made by the seventh defendant, which the plaintiff had not accepted.

The court examined the nature of the costs orders that should be made in the circumstances. It determined that the first, second, and sixth defendants, being unsuccessful parties, were liable for the plaintiff's ordinary costs. The sixth defendant, as an insurer, was also liable to indemnify the first and second defendants. Regarding the seventh defendant, the court found that the plaintiff was liable for indemnity costs after failing to accept the Offer of Compromise. The plaintiff sought a Sanderson or Bullock order to shift the burden of the unsuccessful defendants' liability for the successful defendants' costs onto the unsuccessful defendants. The court granted a Bullock order against the sixth defendant, requiring it to pay the seventh defendant's costs on an ordinary basis. Consequently, the plaintiff became liable for the difference between the seventh defendant's ordinary and indemnity costs due to the non-acceptance of the offer.

Further, the court addressed the sixth defendant's application for costs against a non-party, who was a former director of the third defendant. The former director made statements that led to the joinder of the seventh defendant in the proceedings. The court found that there were no exceptional circumstances to support making an order against the non-party. Therefore, the application for costs against the non-party was dismissed.

Orders