In the matter of Hua Cheng Property Pty Limited ACN 123 629 283 [2013] NSWSC 373

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Hua Cheng Property Pty Limited ACN 123 629 283 [2013] NSWSC 373 Hearing dates: 18 March 2013 Decision date: 18 March 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: All parties to bear their own costs Catchwords: COSTS - whether Plaintiff was successful on application - whether application was unnecessary - no order as to costs Legislation Cited: (Cth) Corporations Act 2001 Category: Costs Parties: Y Lu (First Plaintiff) L Huang (Second Plaintiff) Hua Cheng Property Pty Limited ACN 123629283 (First Defendant) L Xu (Second Defendant) Representation: Counsel: J Tobin (Plaintiffs) D Robertson (Defendants) Solicitors: Watson Mangioni Lawyers (Plaintiffs) Chris Lee Lawyers (Defendants) File Number(s): 2013/ 70463

Judgment (Ex Tempore) 1HIS HONOUR: On 11 March 2012 I granted some, but not all, of the relief sought in the originating process filed 7 March 2012 whereby the Plaintiffs sought orders pursuant to (Cth) Corporations Act 2001, s 290, providing for access to corporate records by and on behalf of the Plaintiffs who are directors. It now seems that the relief then granted, some of which was not opposed and some of which reflected submissions made by the Defendants - but which, on the other hand, largely gave effect to what the Plaintiffs had sought - has disposed of the proceedings, and the only remaining question is one of costs. 2The Plaintiffs do not seek any costs order against the company, being the First Defendant, but seek an order for their costs against the Second Defendant, on the basis that they had to come to Court to obtain the relief sought and substantially succeeded. Against that, the Second Defendant seeks an order that his costs be paid by the Plaintiffs on the footing that the application was unnecessary, made prematurely and, as against him, did not substantially succeed (since the orders sought against him, in particular Orders 5, 6 and 7 at least, were not made). 3While it is easy to see why the Plaintiffs were motivated to bring the proceedings urgently, particularly in the light of the notice of the directors meeting on 6 March, the evidence read on behalf of the Defendants has cast further light on those circumstances. It is fair to say that the First Defendant has never categorically refused access to the documents and, indeed, on 5 March 2013 (two days before proceedings were commenced) stated that the documents were available for inspection. 4On the one hand, the responses on the part of the Defendants have not been as timely as they might have been, but, that said, it unrealistic to expect solicitors, particularly those in small practices, to respond to demands within three hours or so. 5Just as in cases where parties are able to settle proceedings except as to costs, the court in the absence of a clear case will usually not investigate the matter further for the purposes of resolving a costs dispute, so in this case I think the appropriate response is that there be no order as to costs as between any of the parties, with the intent that all parties bear their own costs.