Xiang v Ward (No 4) [2016] NSWDC 167

District Court New South Wales

Medium Neutral Citation: Xiang v Ward (No 4) [2016] NSWDC 167 Hearing dates: 29 June 2016 Date of orders: 29 June 2016 Decision date: 29 June 2016 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Note that the defendant's proposed notice of motion in regards to a stay has not been filed and is not intended to be pursued. (2) Order the defendant pay the plaintiff's costs of and incidental to the hearing before me today. Catchwords: COSTS – application for a stay – application abandoned – costs payable Legislation Cited: Uniform Civil Procedure Rules 2005, r 42.1 Category: Procedural and other rulings Parties: Youfa Xiang (plaintiff) Peter Luscombe Ward (defendant) Representation: Counsel: Mr M W Young SC (plaintiff) Mr M Windsor SC (defendant)

Solicitors: Dixon Holmes Lawyers (plaintiff) Cappello Rowe Lawyers (defendant) File Number(s): 2013/304886 Publication restriction: None

Judgment 1. The defendant, Peter Ward, foreshadowed an application for a stay of the judgment in this matter and served an affidavit in support on the plaintiff, Youfa Xiang, on Monday, 27 June 2016. At 4.30pm yesterday, 28 June 2016, the matter was listed before me today. 2. Mr Ward changed his mind about the application. Proposed consent orders were provided to Mr Xiang, in these terms: "(1) That listing to hear the defendant's notice of motion on 29 June 2016 at 10am before this honourable court be vacated. (2) No order as to costs." 1. Mr Ward may have given some oral indication to Mr Xiang of those consent orders by 4.30pm yesterday (Tuesday). 2. Mr Xiang has not accepted that offer inherent in the provision of the proposed consent orders. 3. Any dispute concerning the first order listed in the proposed consent orders is minor. After some submissions, the parties voiced no opposition to the proposal that rather than make order (1) in the form proposed, instead I should note: "That the defendant's proposed notice of motion, not yet filed, was not pursued". I will make a notation in the orders to that effect. 4. The second matter was the primary area of dispute, namely, what should be the order made in respect of costs of today's hearing? Mr Ward accepts that Mr Xiang is properly to be regarded as having been successful in the "event" referred to in r 42.1 of the Uniform Civil Procedure Rules 2005 as Mr Ward has not pursued his proposed application for a stay. However, Mr Ward says that I should exercise my discretion in respect of costs for a number of reasons. I was referred to the encouragement of appellants to seek stay orders from this Court to protect or preserve the position of the appellant and other matters which indicate that an application for a stay was properly based. 5. For the purposes of this costs issue, I am prepared to accept this submission. I would even accept that because of the service of a bankruptcy notice mentioned by Mr Ward, that Mr Ward's proposed application for a stay had a proper foundation and reasonable prospects. However, to my mind, that does not displace the ordinary rule under r 42.1, in circumstances where Mr Ward has not pursued the application and has thus been unsuccessful in it. In my view, the ordinary rule should apply. I propose to make an order that the defendant pay the costs of and in connection with the listing of the matter today in regard to a potential stay application. 6. Accordingly, the orders of the Court are: 1. Note that the defendant's proposed notice of motion in regards to a stay has not been filed and is not intended to be pursued. 2. Order the defendant pay the plaintiff's costs of and incidental to the hearing before me today.