Zong v Wang - [2021] NSWCA 214

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zong v Wang [2021] NSWCA 214
Hearing dates: 24 August 2021
Date of orders: 14 September 2021
Decision date: 14 September 2021
Before: Emmett AJA
Decision:
Order that:
1.   The First Respondent provide security for costs in the sum of $50,000 in the form of a bank guarantee or other form acceptable to the Registrar.
2.    The appeal be stayed until security is provided in accordance with Order 1.
3.    If security is not provided in accordance with Order 1 within 28 days of these orders, the appeal be permanently stayed and the appellant pay the respondents’ costs.
4.   The costs of the application for security be the parties’ costs of the appeal.

Catchwords:
COSTS — security for costs — on appeal — application under UCPR r 51.50 — special circumstances — non-compliance with curial procedure — application granted

Legislation Cited:
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50

Cases Cited:
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17
Merrag Pty Ltd v Khoury [2008] NSWSC 1286
Piras v Egan [2007] NSWCA 26
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Williams v Pisano [2015] NSWCA 177

Texts Cited:
Nil

Category: Procedural rulings
Parties: Jason Zong (First Appellant, First Respondent on the Motion)
Australian Yacht Club Pty Ltd (Second Appellant, Second Respondent on the Motion)
Zhengshun Wang (Respondent, Applicant on the Motion)
Representation:
Counsel:
N Furlan (Applicant on the motion)
M Young SC (Respondents on the motion)
Solicitors:
Prudentia Legal Pty Ltd (Applicant on the motion)
Dixon Holmes Lawyers (Respondents on the motion)

File Number(s): 2021/165193
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2021] NSWDC 181

Date of Decision:

19 May 2021

Before:

Russell SC DCJ

File Number(s):

2020/159292

Judgment

By notice of motion filed on 14 July 2021, the respondent, Mr Zhengshun Wang, seeks an order that the appellants, Mr Jason Zong and Australian Yacht Club Pty Ltd (AYC), provide security for Mr Wang’s costs of the appeal. The appeal was brought by notice of appeal filed on 8 June 2021 from orders made by a judge of the District Court (the primary judge) on 19 May 2021 in proceedings brought by Mr Wang against Mr Zong and AYC. By the orders of 19 May 2021, the primary judge directed entry of judgment for Mr Wang against Mr Zong in the sum of $233,185.27 and ordered Mr Zong to pay Mr Wang’s costs of the proceedings. His Honour directed the entry of judgment for AYC but directed AYC to pay its own costs.
Mr Wang seeks security in the sum of $68,456. The claim for security is said to be based on r 50.50 or r 42.21 of the Uniform Civil Procedure Rules

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.

Continue reading Zong v Wang

Details

AGLC: Zong v Wang [2021] NSWCA 214
Case: [2021] NSWCA 214
Decision Date: 14 September 2021

CaseChat Overview and Summary

In *Zong v Wang*, the appellant, Zong, sought to appeal a decision of the primary court. The respondents, Wang and others, applied for an order that the appellant provide security for their costs of the appeal. The application was made under rule 51.50 of the Uniform Civil Procedure Rules (UCPR).

The central legal issue before the Court of Appeal was whether there were special circumstances justifying an order for security for costs against the appellant. The respondents contended that such circumstances existed due to the appellant's alleged non-compliance with curial procedure.

Emmett AJA found that special circumstances did exist, warranting the provision of security for costs. The Court ordered that the appellant provide security for the respondents' costs in the sum of $50,000, to be furnished in the form of a bank guarantee or other form acceptable to the Registrar. The appeal was stayed pending the provision of this security. If the security was not provided within 28 days, the appeal would be permanently stayed, and the appellant would be ordered to pay the respondents' costs. The costs of the application for security were to be treated as the parties' costs of the appeal.

Orders

Orders of the court

Order that:

1. The First Respondent provide security for costs in the sum of $50,000 in the form of a bank guarantee or other form acceptable to the Registrar.

2. The appeal be stayed until security is provided in accordance with Order 1.

3. If security is not provided in accordance with Order 1 within 28 days of these orders, the appeal be permanently stayed and the appellant pay the respondents’ costs.

4. The costs of the application for security be the parties’ costs of the appeal.

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:	Zong v Wang [2021] NSWCA 214
Hearing dates:	24 August 2021
Date of orders:	14 September 2021
Decision date:	14 September 2021
Before:	Emmett AJA
Decision:	Order that: 1. The First Respondent provide security for costs in the sum of $50,000 in the form of a bank guarantee or other form acceptable to the Registrar. 2. The appeal be stayed until security is provided in accordance with Order 1. 3. If security is not provided in accordance with Order 1 within 28 days of these orders, the appeal be permanently stayed and the appellant pay the respondents’ costs. 4. The costs of the application for security be the parties’ costs of the appeal.
Catchwords:	COSTS — security for costs — on appeal — application under UCPR r 51.50 — special circumstances — non-compliance with curial procedure — application granted
Legislation Cited:	Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18 Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50
Cases Cited:	Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17 Merrag Pty Ltd v Khoury [2008] NSWSC 1286 Piras v Egan [2007] NSWCA 26 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 Williams v Pisano [2015] NSWCA 177
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Jason Zong (First Appellant, First Respondent on the Motion) Australian Yacht Club Pty Ltd (Second Appellant, Second Respondent on the Motion) Zhengshun Wang (Respondent, Applicant on the Motion)
Representation:	Counsel: N Furlan (Applicant on the motion) M Young SC (Respondents on the motion) Solicitors: Prudentia Legal Pty Ltd (Applicant on the motion) Dixon Holmes Lawyers (Respondents on the motion)
File Number(s):	2021/165193
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2021] NSWDC 181 Date of Decision: 19 May 2021 Before: Russell SC DCJ File Number(s): 2020/159292