Xiao v BCEG International (Australia) Pty Ltd (No 2) [2023] NSWCA 87

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Xiao v BCEG International (Australia) Pty Ltd (No 2) [2023] NSWCA 87 Hearing dates: On the papers Date of orders: 4 May 2023 Decision date: 04 May 2023 Before: Gleeson JA at [1] Mitchelmore JA at [25] Griffiths AJA at [26] Decision: (1) The respondent pay 25 per cent of the appellants' costs of the appeal. (2) Set aside the costs order made by the primary judge on 12 September 2022 against the fourth defendant by varying order 2 made on 12 September 2022 by inserting the words "first, second, third and fifth" before the word "defendants". (3) Subject to order 4 below, make no order for costs at first instance as between the plaintiff and the fourth defendant. (4) The plaintiff to pay the fourth defendant's costs of the inquiry as to profits. Catchwords: COSTS — Costs on appeal — Where appeal allowed in part — Apportionment of costs where mixed outcome on appeal COSTS — Costs at first instance — Re-exercise of costs discretion where different outcome on appeal — Where finding by primary judge of disentitling conduct by successful appellants — Where causation argument not pleaded or put in manner it succeeded on appeal Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: BCEG International (Australia) Pty Ltd v Xiao (No 3) [2022] NSWSC 1221 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2) [2019] NSWCA 173 Xiao v BCEG International (Australia) Pty Ltd [2023] NSWCA 48 Category: Costs Parties: Yu Xiao (First appellant) Yan Ying Chen (Second appellant) Interlink Laboratory Pty Ltd (Third appellant) Interlink Wagga Central Pty Ltd (Fourth appellant) West Wyalong Marketplace Pty ltd (Fifth appellant) BCEG International (Australia) Pty Ltd (Respondent) Representation: Counsel: J C Giles SC / B Le Plastrier (Appellants) D L Williams SC / N D Riordan (Respondent)