Xu v Jiang [2020] NSWDC 302

District Court New South Wales

Medium Neutral Citation: Xu v Jiang [2020] NSWDC 302 Hearing dates: 12 June 2020 Date of orders: 12 June 2020 Decision date: 12 June 2020 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), these proceedings are dismissed with costs. (2) Pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), make gross sum costs orders against the plaintiff as follows: (a) As to the costs set out in the itemised account which is annexure f to the affidavit to Mr Cai of 19 May 2020, the sum of $30,000 costs plus $9,012.53, making a total of $39,012.53; and (b) As to the estimated future costs referred to in paragraph 19 of Mr Cai's affidavit, the sum $2,750, making a total of $41,762.53. (3) Pursuant to UCPR r 29.7, the court is to notify the plaintiff of these orders by forwarding a copy of the entry of the orders onto JusticeLink to the trustee in bankruptcy, Mr David John Kerr of RSM Australia Pty Ltd, the trustee of the plaintiff's estate. Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal pursuant to UCPR r 12.7(1) – plaintiff commences proceedings for repayment of alleged loan – defendant files defence asserting claim is fraudulent and brings application for security for costs on the basis that the defendant is ordinarily resident in China – plaintiff declares himself bankrupt – trustee in bankruptcy does not make any election to continue the proceedings in accordance with s 60 of the Bankruptcy Act 1966 (Cth) – application for summary dismissal of proceedings and a gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – whether the usual order of costs to follow the event may be made where proceedings abandoned by reason of bankruptcy – whether an order for a gross sum costs order is appropriate – whether the court can be satisfied with the information provided as to quantum – gross sum costs order for $41,762.53 Legislation Cited: Bankruptcy Act 1966 (Cth), s 60 Civil Procedure Act 2005 (NSW), s 98(4)(c) Uniform Civil Procedure Rules 2005 (NSW), rr 12.7 and 29.7 Cases Cited: Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673; (1999) 93 FCR 1 Bechara trading as Bechara and Company v Bates [2016] NSWCA 294 Cole v Challenge Bank Ltd [2002] FCAFC 200 Frigger v Rowe Bristol Lawyers Pty Ltd [2020] WASC 5 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Harrison & Anor v Schipp (2002) 54 NSWLR 738 Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Argus [2007] NSWSC 23 Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681 Penson v Titan National Pty Limited (No 3) [2015] NSWCA 121 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Star Diamond v Diamond (No 4) [2013] NSWCA 811 Tim Barr Pty Ltd & Anor v Narui Gold Coast Pty Ltd [2011] NSWSC 11 Vumbaca v Sultana (No. 2) [2013] NSWDC 195 Yue'e Zhao v Suzhou Haishun Investment Managing Co Ltd [2020] VSCA 34 Category: Principal judgment Parties: Plaintiff: Lawrence Xu Defendant: Samuel Jiang Representation: Counsel: Plaintiff: No appearance Defendant: Mr N Furlan