Jiang v Han [2022] NSWSC 1398

Supreme Court New South Wales

Medium Neutral Citation: Jiang v Han [2022] NSWSC 1398 Hearing dates: 15 August 2022 Date of orders: 18 October 2022 Decision date: 18 October 2022 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) Pursuant to r 42.21(1) of the Uniform Civil Procedure Rules 2005 (NSW), the cross-claimants (the first and second defendants in the proceedings) are to provide security for the plaintiff/cross defendant's costs of the cross-claim in the sum of $215,305.00 within 28 days, such security to be provided by way of an unconditional bank guarantee, in a form acceptable to the plaintiff/cross-defendant, or payment into court. (2) In the event that the security ordered in order (1) above is not provided within the time specified, order that the cross-claim be stayed until further orders. (3) The defendant/cross-claimant is to answer the plaintiff's request for particulars dated 23 December 2021 within 14 days. (4) The cross-claimants to pay the cross-defendant's costs of this notice of motion. Catchwords: COSTS — Security for costs — Relevant factors – r 42.21(1A) of the Uniform Civil Procedure Rules 2005 (NSW) – consideration of prospects of success or merits of the proceedings (r 42.21(1A)(a)) and whether the cross-claim is defensive in nature (r 42.21(1A)(e)) – security for costs ordered by way of an unconditional bank guarantee or payment into court. Legislation Cited: Banking Act 1959 (Cth) Civil Procedure Act 2006 (NSW) s 67 Competition and Consumer Act 2010 (Cth) ss 4, 18, 236 and 237 Corporations Act 2001 (Cth) ss 1335 and 201A Uniform Civil Procedure Rules 2005 (NSW) rr 42.21 and 15.10 Cases Cited: Bevwizz Group Pty Ltd v Transport Solutions Pty Ltd [2008] NSWSC 1399 Commissioner of Taxation v Vasiliades [2016] FCAFC 170; 344 ALR 558 Concrete Constructions Pty Ltd v Dalma Formwork Pty Ltd (Administrator Appointed) [1999] NSWCA 16 Demag-Lauchhammer Maschinenbau und Stahlbau BmbH v John Holland (Contructions) Pty Ltd [1966] 2 NSWR 3 Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621 John Arnold's Surf Shop (in liq) v Heller Factors Pty Ltd [1979] 22 SASR 20; (1979) 4 ACLR 492 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Mitchell v Roads and Maritime Services (now known as Transport for NSW) [2022] NSWSC 500 Sykes v Sacredoti (1885) 15 QBD 423 Category: Procedural rulings Parties: Zhao Qing Jiang (Plaintiff) Kairan Han (First Defendant) Fortune New City (Yarraville) Development Pty Ltd (Second Defendant) Representation: Counsel: W Muddle SC with R Tregenza (Plaintiff) D Ratnam (First Defendant)