Xu v Cao & Du Management Pty Ltd [2024] NSWSC 461

Supreme Court New South Wales

Medium Neutral Citation: Xu v Cao & Du Management Pty Ltd [2024] NSWSC 461 Hearing dates: 18 April 2024 Date of orders: 26 April 2024 Decision date: 26 April 2024 Jurisdiction: Common Law Before: Schmidt AJ Decision: (1) The order finally pressed in relation to the Cao notice must be refused; (2) The costs of the Cao motion must be borne by the plaintiffs and cross defendants, as agreed or assessed; and (3) The costs of the Xu motion are to be costs in the cause. Catchwords: CIVIL PROCEDURE – notice to produce the terms of claimed retainers – application to set aside notice to produce the terms of claimed retainers – whether the order pressed in relation to the notice to produce is required under either rr 21 or 34 of the Uniform Civil Procedure Rules 2005 (NSW) – the order is not required – the notice to produce does not identify specific documents – the order pressed must be refused COSTS – a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed – order depends on how parties have acted – plaintiff effectively surrendered to defendant – costs of motion must be borne by plaintiff COSTS – all parties had a measure of success in relation to the motion – costs are to be costs in the cause Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 98 Uniform Civil Procedure Rules 2005 (NSW), rr 21.1(2), 21.9(2), 34.2 Cases Cited: Ahn v Toppro Pty Ltd [2016] NSWSC 221 Chandrasekaran v Western Sydney Local Health District [2023] NSWCA 219 Chapman v Luminis Pty Ltd [2003] FCAFC 162 Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 Mulley v Manifold (1959) 103 CLR 341; [1959] HCA 23 Norris v Kandiah [2007] NSWSC 1296 Patonga Beach Holdings Pty Ltd v Lyon [2009] NSWSC 869 Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Category: Procedural rulings Parties: Jaiqing Xu (Plaintiff) Cao & Du Management Pty Ltd (First Defendant) Howard Hao Ting Cao (Second Defendant) Representation: Counsel: J Li (Plaintiff) R Alkadamani (Defendants)