Zhang v Yan (No 2)

[2021] FCA 1076

FEDERAL COURT OF AUSTRALIA

Zhang v Yan (No 2) [2021] FCA 1076

Appeal from:

Yan v Zhang [2019] FCCA 2990

File number:

VID 1244 of 2019

Judgment of:

O'BRYAN J

Date of judgment:

7 September 2021

Catchwords:

COSTS – award of costs – where not all of the successful respondents’ arguments were accepted – costs nevertheless awarded in favour of respondent – order for release of sum paid into court as security for costs – whether the unsuccessful appellant entitled to a costs certificate under Federal Proceedings (Costs) Act 1981 (Cth)

Legislation:

Federal Court of Australia Act 1976 (Cth) s 43

Federal Proceedings (Costs) Act 1981 (Cth) s 6(1)

Division:

General Division

Registry:

Victoria

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

18

Date of last submissions:

19 August 2021

Date of hearing:

Determined on the papers

Counsel for the Appellant:

M G R Gronow QC with L Collaris

Solicitor for the Appellant:

Hopkins Lawyers

Counsel for the Respondents:

J P Tomlinson

Solicitor for the Respondents:

SBA Law

ORDERS

VID 1244 of 2019

BETWEEN:

HENG ZHANG

Appellant

AND:

WEIMIN YAN

First Respondent

SHANGHAI YINGYUE INVESTMENT GROUP CO PTY LTD

Second Respondent

ORDER MADE BY:	O'BRYAN J
DATE OF ORDER:	7 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The appellant pay the respondents’ costs of the appeal and of the notice of contention, to be taxed in default of agreement.

2.The sum of $30,000 paid into Court as security for the respondents’ costs of the appeal pursuant to order 1 made on 6 April 2020 be released to the solicitors for the respondents, SBA Law, on account of the respondents’ costs per order 1.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1. This proceeding is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for review of a sequestration order made by a registrar of the Federal Circuit Court in respect of the appellant.

2. On 5 August 2021, I made orders that:

   (a)the respondents’ notice of contention be allowed in part;

   (b)the appeal be dismissed; and

   (c)within 14 days, the parties are to file and serve written submissions in relation to the costs of the appeal, limited to 3 pages, to be determined on the papers.

3. Each of the parties filed submissions in relation to the costs of the appeal. The respondents also filed an affidavit of Andrew John Green, a principal of SBA Law, the solicitors for the respondents.

4. I also note by way of background that, on 6 April 2020, I made orders by consent of the parties requiring the appellant to provide security for the respondents' costs in the sum of $30,000 by paying that sum into Court.

   Appellant’s submissions

5. The appellant submitted that, although he was ultimately unsuccessful on the appeal, the appropriate order to be made in the circumstances of the appeal is that each party bear their own costs.