Zhou v Tan

[2023] NSWSC 1168

Supreme Court

New South Wales

Medium Neutral Citation:

Zhou v Tan [2023] NSWSC 1168

Hearing dates:

15 September 2023

Date of orders:

15 September 2023

Decision date:

15 September 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) That the sum of $14,338.73 be released to the second defendant (Hiram Shuen Ray Tan) from the funds held by this Court as security for costs paid into Court by the Plaintiff on 13 December 2021 for the Defendants' costs of proceedings 2021/60620, for payment of the following:

(a) Judgment debt pursuant to orders made on 15 June 2023 - $12,024.73

(b) Filing fees - $718

(c) Solicitor fees - $1,596

(d) Total - $14,338.73

Catchwords:

CIVIL PROCEDURE – security for costs paid into Court – ex parte proceedings – no appearance from defendant – security for costs released to the second defendant

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Category:

Principal judgment

Parties:

Anna Zhou (Plaintiff)
Xiaoli Jing (First Defendant)
Hiram Shuen Ray Tan (Second Defendant/Respondent)

Representation:

Counsel:
A J Macauley (Second defendant)

Solicitors:
Du & Associates Lawyers (Second defendant)

File Number(s):

2021/060620

EX TEMPORE JUDGMENT

1. By an Amended Notice of Motion filed today in the Court's Duty List, the second defendant in proceedings, Hiram Sheun Ray Tan, sought funds released that it held in security for costs in this Court. Those security for costs were paid into Court by the plaintiff, Anna Zhou, on the 13th of December 2021 for the defendants' costs of the proceedings in matter 2021/00060620. The amount claimed by the Notice of Motion in total for judgment debt filing fees and solicitor’s fees is in the amount of $14,338.73.

2. The application has the consent of the first defendant. I will return to Ms Zhou's interests after providing a brief history, which is set out in the affidavit of the solicitor for the defendant, Mr Yao.

3. On 3 March 2021 the plaintiff commenced proceedings by way of Statement of Claim in the District Court of New South Wales. At that time the Statement of Claim named two defendants and sought to recover damages from them in relation to a pleaded contract.

4. On 12 July 2021, the plaintiff filed a Notice of Motion seeking leave to amend the Statement of Claim. Those amendments included, inter alia, that the proceedings be discontinued against the second defendant and various other measures in the form of a strike out and some pleaded particulars as to a judgment obtained in China.

5. On 4 August 2021, the first defendant, along with the second defendant, filed a Notice of Motion seeking security for costs from the plaintiff on the basis that she was a foreign resident with no assets within the jurisdiction. Both Notices of Motion were originally before the District Court but were not heard.

6. On a later occasion, the Court was informed that the defendant consented to leave being granted to the plaintiff to file an Amended Statement of Claim and due to technical difficulties experienced by the Court on the day, the defendant's Notice of Motion for security for costs was stood over.

7. On 22 November 2021 formal orders were made granting leave to the plaintiff to file the Amended Statement of Claim. On that occasion, the Court raised issues of jurisdiction Counsel for the defendant accepted that there was some uncertainty as to jurisdiction. Pursuant to s 21(4) of the Civil Procedure Act 2005 (NSW) if there was any doubt as to jurisdiction the appropriate course was, the defendants consented, to the matter being transferred to this Court. In the result, orders were made transferring the matter to this Court. The Court made orders for the plaintiff to provide security for the defendant's costs but only in an interim amount of $30,000 and not for the entire proceedings.

8. On 13 December 2021, the plaintiff paid the sum of $30,000 into the Supreme Court. Next, on 9 June 2023, costs assessment certificates were issued in relation to Mr Tran's costs expended in the proceedings and these were filed in the Supreme Court for registration. A short time thereafter, orders were made by the Supreme Court for Ms Zhou to pay Mr Tran the sum of $12,024.73, being a judgment debt.

9. I interpose to note that is the amount sought in the Notice of Motion together with, as I mentioned, filing fees and solicitor fees.

10. The chronology then deals in some considerable detail with various attempts to communicate with Ms Zhou as to the claim with respect to the security for costs in relation to the judgment debt, any particular of the service of the Notice of Motion in its original form and an affidavit then in support of the Notice of Motion of Dianna Du.

11. It is unnecessary to recount all of those efforts, save to say that, in my view, they were reasonable and to gave Ms Zhou notice of the claim that was intended to be brought against her.

12. I note that part of the confusion this morning as to the name of the respective interests in the Notice of Motion has excited a submission on behalf of Mr Macauley as to whether that may have in any way affected the notice given and the service of the Notice of Motion and affidavit. In my view, it has not. The substance of the Notice of Motion is plain on its face.

13. Whilst there may be some misleading labelling of the respective interests it is plain, as they say, as a pike staff who was the party moving for the funds from this Court given that the funds were paid into Court by the plaintiff and sought to be recovered by the second defendant, and the affidavit of Ms Du gave sufficient information as to the subject matter of the proceedings as to further avoid any doubt. In the result, in my view, the orders sought in prayer for relief 1 of the Notice of Motion should be granted, and I make orders in those terms.

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Decision last updated: 28 September 2023