Hua and Song v Tuckerman & Ors [2016] NSWSC 1431

Supreme Court New South Wales

Medium Neutral Citation: Hua and Song v Tuckerman & Ors [2016] NSWSC 1431 Hearing dates: 26 September 2016 Decision date: 27 September 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Court orders that the Amended Notice of Motion be dismissed. The First and Second Defendants pay the Plaintiffs' costs of and incidental to the Amended Notice of Motion as agreed or as assessed. Catchwords: CORPORATIONS — Liquidation — Derivative action — where the defendants applied for grant of leave under Court's inherent jurisdiction to represent company and its subsidiaries for purposes of bringing claims against various parties – whether proposed derivative action exhibits such a degree of merit as to be neither vexatious or oppressive – whether liquidator of company opposes commencement of derivative action – whether liquidator and company are financially protected by means of indemnity. PROCEDURE — Costs — Order for costs on indemnity basis – where plaintiffs sought indemnity costs in respect of paragraphs of defendants' notice of motion in which defendants sought to bring claims against third parties with no connection to plaintiffs – where defendants were self-represented litigants – whether indemnity costs ought to be granted. PROCEDURE — Costs — where defendants' amended notice of motion was dismissed – where plaintiffs sought an order for costs forthwith against defendants –whether costs should be payable forthwith in circumstances where delay in final determination of proceedings was in part due to plaintiffs' amendment of their pleadings. Legislation Cited: - Civil Procedure Act 2005 (NSW), ss 98, 236, 237 - Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.5 Cases Cited: - Aliprandi v Griffith Vintners Pty Limited (in liq) (1991) 6 ACSR 250 - Brightwell v RFB Holdings Pty Limited (in liq); [2003] NSWSC 7; (2003) 44 ACSR 186 - Carpenter v Pioneer Park Pty Limited [2008] NSWSC 551; (2008) 71 NSWLR 577 - Hu v PS Securities Pty Ltd (as trustee of the Joseph Family Trust) [2011] NSWSC 303 - Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 64; (2014) 97 ASCR 581 - Scarel Pty Ltd v City Loan & Credit Corporation Pty Ltd (1988) 6 ACLC 213 - Cadima Express Pty Ltd (in liq) v Deputy Commissioner of Taxation [1999] NSWSC 1143; (1999) 33 ACSR 527 - Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248 - Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 7) [2008] NSWSC 199; (2008) 65 ACSR 324 - Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 - Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; (2002) 55 NSWLR 1 - Brasington v Overton Investments Pty Ltd [2001] FCA 571 - Rafferty v Time 2000 West Pty Ltd (No 3) [2009] FCA 727; (2009) 257 ALR 503 Category: Procedural and other rulings Parties: Xiao Ping Hua (First Plaintiff/First Cross-Defendant) Lu Sheng Song (Second Plaintiff/Second Cross-Defendant) Michael Shane Tuckerman (First Defendant/First Cross-Claimant) Paul James Devine (Second Defendant/Second Cross-Claimant) & Ors Representation: Counsel: I G A Archibald (Plaintiffs)