Yu v Cao [2015] NSWCA 276

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Yu v Cao [2015] NSWCA 276 Hearing dates: 19 November 2014 Date of orders: 14 September 2015 Decision date: 14 September 2015 Before: McColl JA at [1]; Sackville AJA at [187]; Adamson J at [191] Decision: (1) Grant leave to appeal; (2) Appellant to file the notice of appeal in the form of the draft appearing in the White Book at page 235 within seven days; (3) Appeal allowed; (4) Set aside the orders made by Walmsley ADCJ on 20 March 2014; (5) Dismiss the respondent's notice of motion filed on 25 September 2013 insofar as it sought orders against the appellant with costs; (6) Respondent to pay the appellant's costs of the application for leave to appeal and of the appeal and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. Catchwords: Procedure – costs – s 98, Civil Procedure Act 2005 (NSW) – costs order against non-party – where plaintiff allegedly defamed in email sent from email address appearing to be defendant's – where email in fact composed and sent by defendant's husband –where plaintiff instructed solicitors to advise in relation to defamation proceedings – where plaintiff immediately saw email as work of defendant's husband – where solicitors commenced defamation proceedings against defendant – where defendant denied publishing email – where plaintiff frequently sought advice from solicitors as to joining defendant's husband – defendant's husband not joined – where at trial defendant's husband gave evidence he composed and sent email from email address appearing to be defendant's – where trial judge found plaintiff failed to prove defendant published the email – where trial judge found defendant's husband obvious alternative defendant – whether trial judge erred in exercising discretion to award non-party costs in ordering defendant's husband to pay costs plaintiff was ordered to pay defendant and costs for which plaintiff liable to solicitors