Zhu v Wang - [2021] NSWCA 109

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zhu v Wang [2021] NSWCA 109
Hearing dates: 10 May 2021
Date of orders: 28 May 2021
Decision date: 28 May 2021
Before: Macfarlan JA
Decision:
Notice of motion dismissed with costs.

Catchwords:
APPEAL – security for costs – Uniform Civil Procedure Rules 2005 (NSW) r 51.50 – “special circumstances” not established

Legislation Cited:
Corporations Act 2001 (Cth), s 1335
Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50

Cases Cited:
Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434
Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310
Partington v Pacific Link Housing Ltd [2013] NSWCA 259
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Singh v De Castro [2017] NSWCA 130
Uptown Sydney Development Corporation Pty Ltd v Bank of New Zealand (No 1) (1993) 11 ACSR 300
Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240

Category: Procedural rulings
Parties: Ms Lucy Zhu (First Appellant)
HQ Living Pty Ltd (Second Appellant)
De Rucci Bundall Pty Ltd (Third Appellant)
HQ Living (Moore Park) Pty Ltd (Fourth Appellant)
HQ Living Bedding Pty Ltd (Fifth Appellant)
Mr Bing Kun Wang (First Respondent)
De Rucci International Pty Ltd t/as De Rucci (Second Respondent)
Representation:
Counsel:
Zhu (self-represented) (Appellants)
G Gee (Respondents)
Solicitors:
Auyeung Hencent & Day (Respondents)

File Number(s): 2020/369381
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 1720

Date of Decision:

2 December 2020

Before:

Rothman J

File Number(s):

2019/293452

Judgment

This is an application by the respondents (collectively referred to as “De Rucci”) to an appeal by Ms Lucy Zhu and companies associated with her (“the appellants”) against a judgment of Rothman J sitting in the Common Law Division of the Supreme Court (De Rucci International Pty Ltd v Zhu & Ors [2020] NSWSC 1720).
The dispute that his Honour determined related to the commercial relationship between the parties, and particularly to a Management Agreement entered into on 20 October 2016 and to the title to certain furniture display stock. His Honour gave judgment in favour of De Rucci in the sum of $230,473.90 and dismissed the appellants’ cross-claim in which they had sought a judgment of almost $1.5 million.
Ms Zhu’s family commenced a furniture retail business in about 2003 in Brisbane, later expanding and establishing it in prominent shopping centres such as Moore Park Supa Centa in Sydney. In about 2013 the business entered into commercial arrangements with entities associated with Mr Bing Kun Wang whose moniker, Ms Zhu said, was the “King of Sleeping Furniture”. She said his business, operating under the name “De Rucci”, had over 2,000 branches in China. Their business relationship broke down in 2019, leading to the present litigation.
By notice of motion dated 1 April 2021, De Rucci sought an order that the appellants provide security for De Rucci’s costs of the appeal.
In responding to the application, the appellants were unrepresented,…

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: [2021] NSWCA 109
Decision Date: 28 May 2021

CaseChat Overview and Summary

The appeal concerned an application for security for costs brought by the respondent, Mr. Wang, against the appellant, Ms. Zhu, in proceedings before the New South Wales Court of Appeal. The dispute arose from an underlying legal matter, the specifics of which are not detailed in the provided text, but it led to Ms. Zhu appealing a decision to the Court of Appeal. Mr. Wang sought security for his costs of the appeal.

The central legal issue before the Court of Appeal was whether "special circumstances" existed, within the meaning of rule 51.50 of the *Uniform Civil Procedure Rules 2005* (NSW), to warrant an order for security for costs against Ms. Zhu. This rule generally allows for security for costs to be ordered in appeals in the absence of such special circumstances, particularly where the appellant is ordinarily resident outside Australia or where there is a real risk that the respondent will be unable to recover their costs.

Macfarlan JA, sitting alone, considered the application for security for costs. The judgment indicates that the court found that the threshold for establishing "special circumstances" under rule 51.50 had not been met. While the precise reasons for this finding are not elaborated upon in the provided text, the conclusion suggests that the evidence or arguments presented by Mr. Wang were insufficient to persuade the court that an order for security was justified on the basis of any exceptional factors.

Consequently, the notice of motion for security for costs was dismissed. Mr. Wang was awarded the costs of the motion.

Orders

Orders of the court

Notice of motion dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Zhu v Wang [2021] NSWCA 109
Hearing dates:	10 May 2021
Date of orders:	28 May 2021
Decision date:	28 May 2021
Before:	Macfarlan JA
Decision:	Notice of motion dismissed with costs.
Catchwords:	APPEAL – security for costs – Uniform Civil Procedure Rules 2005 (NSW) r 51.50 – “special circumstances” not established
Legislation Cited:	Corporations Act 2001 (Cth), s 1335 Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50
Cases Cited:	Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434 Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310 Partington v Pacific Link Housing Ltd [2013] NSWCA 259 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 Singh v De Castro [2017] NSWCA 130 Uptown Sydney Development Corporation Pty Ltd v Bank of New Zealand (No 1) (1993) 11 ACSR 300 Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240
Category:	Procedural rulings
Parties:	Ms Lucy Zhu (First Appellant) HQ Living Pty Ltd (Second Appellant) De Rucci Bundall Pty Ltd (Third Appellant) HQ Living (Moore Park) Pty Ltd (Fourth Appellant) HQ Living Bedding Pty Ltd (Fifth Appellant) Mr Bing Kun Wang (First Respondent) De Rucci International Pty Ltd t/as De Rucci (Second Respondent)
Representation:	Counsel: Zhu (self-represented) (Appellants) G Gee (Respondents) Solicitors: Auyeung Hencent & Day (Respondents)
File Number(s):	2020/369381
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 1720 Date of Decision: 2 December 2020 Before: Rothman J File Number(s): 2019/293452