Zhu v Wang (No 2)

[2022] NSWCA 105

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Zhu v Wang (No 2) [2022] NSWCA 105

Hearing dates:

On the papers

Date of orders:

23 June 2022

Decision date:

23 June 2022

Before:

Gleeson JA; Payne JA; Emmett AJA

Decision:

(1)   The first, second and third defendants to pay the plaintiff’s costs of and incidental to the proceedings at first instance.

(2)   The plaintiff to pay the fourth and fifth defendants’ costs of the proceedings at first instance.

(3)   The appellants to pay the respondents’ costs thrown away by reason of the further amended notice of appeal dated 25 August 2021 and filed 14 October 2021.

(4)   Subject to order (3) above, make no order as to the costs of the appeal.

Catchwords:

COSTS – application for order as to costs at first instance following outcome on appeal – costs of appeal – costs of late amendment to notice of appeal

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1

Cases Cited:

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219

Zhu v Wang [2021] NSWCA 240

Zhu v Wang [2022] HCASL 32

Category:

Costs

Parties:

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 Bedding Pty Ltd (Fifth Appellant)
Bing Kun Wang (First Respondent)
De Rucci International Pty Ltd (Second Respondent)

Representation:

Counsel:
First Appellant (litigant in person, and on behalf of the second, third, fourth and fifth appellants)
G P Gee (Respondents)

Solicitors:
Auyeung Hencent & Day Lawyers (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

1. THE COURT: On 7 October 2021, the Court delivered a judgment on this appeal: Zhu v Wang [2021] NSWCA 240 (the principal judgment). It allowed the appeal in part and set aside several orders, including that the appellants, jointly and severally, pay the second respondent De Rucci International Pty Ltd (De Rucci International), the sum of $230,473.90, together with pre-judgment interest on that amount from 7 December 2019, and that the appellants pay De Rucci International’s costs of and incidental to the proceedings. In lieu, this Court ordered that:

1. the second appellant, HQ Living Pty Ltd (HQ Living), pay De Rucci International the sum of $30,789; and

2. the first appellant, Ms Lucy Zhu (Ms Zhu), and the second appellant, HQ Living, are jointly and severally liable to pay De Rucci International the sum of $107,317.90.

2. Given the mixed outcome, the Court did not determine the issue of costs at first instance or on appeal and directed the parties to file written submissions on the question of costs and indicated that those submissions would be determined on the papers.

3. Although the parties filed submissions on costs, unfortunately, those submissions…