New South Wales Court of Appeal CITATION: ZHANG & ANOR v MINOX SECURITIES PTY LTD & ORS; LIU & ORS v MINOX SECURITIES PTY LTD & ORS [NO 2] [2009] NSWCA 256 HEARING DATE(S): On the papers. JUDGMENT DATE: 26 August 2009 JUDGMENT OF: Hodgson JA at 1; Macfarlan JA at 2; Handley AJA at 3 (1) Vary Order 6 made by this Court on 7 July 2009 by substituting an order that the respondent pay 80% of the costs of the appeal, and 60% of the costs of the relevant proceedings in the Equity Division. DECISION: (2) Motion otherwise dismissed. (3) No order as to the cost of the motion. CATCHWORDS: COSTS - No question of principle. LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 CATEGORY: Consequential orders (1) Ding Yang Zhang and Mei Li - Claimants PARTIES: Minox Securities Pty Ltd (formerly Quantum Securities Pty Ltd) (Administrator Appoined) (ACN 064 185 897) - respondent (2) Jun Liu and Lan Liu - Claimants Minox Securities Pty Ltd (formerly Quantum Securities Pty Ltd) (Administrator Appointed) (ACN 064 185 897) - Respondent FILE NUMBER(S): CA (1) 40234/08; (2) 40235/08 COUNSEL: Mr N Hutley SC and Mr A J Abadee - Appellants Mr McArthur SC and Mr P Rooney - Respondent Slater & Gordon - Appellants SOLICITORS: Wotton & Kearney - Respondent LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC (1) 1815/07; (2) 1816/07 LOWER COURT JUDICIAL OFFICER: Barrett J IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40234/08 40235/08 HODGSON JA MACFARLAN JA HANDLEY AJA 26 August 2009 ZHANG & ANOR v MINOX SECURITIES PTY LTD & ORS LIU & ORS v MINOX SECURITIES PTY LTD & ORS [NO 2] Judgment 1 HODGSON JA: I agree with Handley AJA. 2 MACFARLAN JA: I agree with Handley AJA. 3 HANDLEY AJA: The Court gave judgment in this matter on 7 July 2009 [2009] NSWCA 182. The appeal was allowed in respect of the Professional Indemnity Policy, but dismissed in respect of the Financial Institutions Policy. Order 6 then made required the respondent to pay the appellants' costs of the appeal and of the relevant proceedings in the Equity Division. On 21 July the respondent filed a notice of motion seeking variations to Order 6. 4 The parties have lodged written submissions and the matter is being dealt with on the papers. 5 The respondent relies on its success in the Division and in this Court in resisting the plaintiffs' application for leave under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 in respect of the Financial Institutions Policy and submits that this should be reflected in the orders for costs in the Division and in this Court. 6 In my opinion this submission should be accepted and Order 6 made on 7 July should be varied in favour of the respondent. The plaintiffs are entitled to the general costs of both hearings and the costs referable to the claim on which they succeeded. The respondent is entitled to the additional costs in each court referable to the claim on which it succeeded. This can be taken to be 20% of the costs of the hearing in the Division which should be reflected in an order that the plaintiffs have 60% of their costs there. 7 The appeal in respect of the Financial Institutions Policy occupied very little time in this Court, partly because of the cogency of the respondent's written submissions. The appellants are entitled to the general costs of the appeal and the costs referable to the policy on which they succeeded. The respondent is entitled to the additional costs referable to the claim on which it succeeded which may fairly be estimated as 10% of the costs and this should be reflected in an order that the respondent pay 80% of the appellants' costs of the appeal. 8 During the hearing in this Court Senior Counsel for the appellants indicated that the real strength of the appeal related to the Professional Indemnity Policy. By the end of the argument it should have been clear to all in court that the appeal would almost certainly fail in relation to the Financial Institutions Policy. That was the appropriate time for counsel for the respondents to raise the question of costs and the parties could then have been heard orally without additional expense or delay. The respondent has substantially succeeded on the motion but there should be no order as to the costs of the motion which would have been saved if the matter had been raised at the hearing. 9 The following orders should be made: (1) Vary Order 6 made by this Court on 7 July 2009 by substituting an order that the respondent pay 80% of the costs of the appeal, and 60% of the costs of the relevant proceedings in the Equity Division. (2) Motion otherwise dismissed. (3) No order as to the cost of the motion. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.