Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7

District Court New South Wales

Medium Neutral Citation: Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7 Hearing dates: 2 February 2017 Date of orders: 02 February 2017 Decision date: 02 February 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) The plaintiff's notice of motion filed on 9 November 2016 and her application to join Easy Forex Trading Limited as a fourth defendant to the proceedings be dismissed. (2) Pursuant to rule 28.5 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") proceedings 2016/51926 and proceedings 2016/86450 be consolidated. (3) The Amended Statement of Claim filed on 9 August 2016 in proceedings 2016/51926 be struck out. (4) The Amended Statement of Claim filed on 11 August 2016 in proceedings 2016/86450 be struck out. (5) Subject to orders 7 to 14 below, the plaintiff not be granted leave to file any further Statement of Claim until further order of the Court. (6) The plaintiff is not to include in any further Statement of Claim any cause of action against the second defendant (in proceedings 2016/51926) for breach of the Australian Consumer Law. (7) Pursuant to section 67 of the Civil Procedure Act 2005 (NSW) the proceedings against the first and third defendants be stayed until the plaintiff has paid: (a) the first and third defendants' gross sum costs of $15,000 in Supreme Court of NSW Court of Appeal proceedings 2016/146390; and (b) the first and third defendants' costs as agreed or assessed in Supreme Court of NSW proceedings 2016/87876. (8) Pursuant to section 67 of the Civil Procedure Act 2005 (NSW), the proceedings against the second defendant in proceedings 2016/51926 and the defendant in proceedings 2016/86450 (Fairfax Media) be stayed until the plaintiff has paid: (a) Fairfax Media's costs, as agreed or assessed, pursuant to the cost order made by Justice Wilson on 7 April 2016 in Supreme Court of New South Wales proceedings 2016/87876; (b) Fairfax Media's costs, as agreed or assessed, pursuant to the costs orders made by the Court of Appeal on 23 May 2016 and 19 September 2016 in Supreme Court of New South Wales Court of Appeal proceedings 2016/146390. (9) Pursuant to UCPR Rule 42.21(1) the plaintiff to provide security for the first and third defendants' costs of these proceedings in the amount of $50,000 by paying that sum into court within 28 days. (10) The proceedings against the first and third defendants be stayed until security is given pursuant to order 9 above. (11) Pursuant to UCPR Rule 42.21(3) the proceedings against the first and third defendants be dismissed in the event that the plaintiff does not comply with the order of the Court to provide security for the costs of the first and third defendants pursuant to order 9 above. (12) Pursuant to UCPR Rule 42.21(1) the plaintiff to provide security for the Fairfax Media's costs of these proceedings in the amount of $50,000 by paying that sum into court within 28 days. (13) The proceedings against Fairfax Media be stayed until security is given pursuant to order 12 above. (14) Pursuant to UCPR Rule 42.21(3) the proceedings against Fairfax Media be dismissed in the event that the plaintiff does not comply with the order of the Court to provide security for the costs of Fairfax Media pursuant to order 12 above. (15) Order that the plaintiff refrain from communicating about these proceedings with any director, officer or other employee of Fairfax Media Limited or its related entities. (16) The plaintiff is to pay the defendants' costs of and incidental to: (a) The plaintiff's Notice of Motion filed 9 November 2016; (b) The defendants' objections to the Amended Statement of Claim; (c) The first and third defendants' Notice of Motion filed 19 January 2017; (d) Fairfax Media's Notices of Motion filed 31 January 2017; and (e) The hearing on 2 February 2017. (17) The proceedings be listed for review on 30 March 2017 at 9:00am if not otherwise dismissed. (18) Direct that a Registrar of the Court inform the plaintiff of these orders by 5:00pm on Thursday 2 February 2017 by email at adrianakostov@y7mail.com. Catchwords: PRACTICE AND PROCEDURE – stay of proceedings and security for costs – plaintiff fails to pay costs or to conduct litigation with expedition – costs incurred in satellite litigation concerning venue and on appeal – plaintiff refuses to pay gross sum costs and to comply with costs assessment process – application for stay under s 67 Civil Procedure Act and security for costs – applications granted – application under s 56 Civil Procedure Act for orders restraining plaintiff from contacting servants or agents of Fairfax Media Limited – long history of vituperative correspondence from plaintiff to all defendants – restraining orders already in place in relation to the other defendants – restraining orders made Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 - 62 Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, cl 18 and 19 Uniform Civil Procedure Rules 2005 (NSW), rr 4.5, 13.4, 14.7, 14.8, 14.28, 14.30, 15.1, 15.19 Cases Cited: Al-Shennag v Woodcock [2013] NSWSC 696 AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Limited [2010] NSWSC 1395 Kostov v YPOL Pty Ltd [2016] NSWSC 1722 Kostov v Zhang [2016] NSWSC 456 Kostov v Zhang [2016] NSWCA 262 Kostov v Zhang (No 2) [2016] NSWCA 279 Mahon v Mach 1 Financial Services Pty Limited (No 2) [2013] NSWSC 10 McGuirk v University of New South Wales [2010] NSWCA 104 Michail v Mount Druitt & Area Community Legal Centre [2015] NSWDC 145 Michail v Mount Druitt & Area Community Legal Centre (No. 2) [2015] NSWDC 214 Michail v Mount Druitt & Area Community Legal Centre [2015] NSWCA 396 Nyoni v Pharmacy Board of Australia (No 2) [2016] FCA 1397 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 Ratcliffe v Evans [1892] 2 QB 524 Sheen v Burke [1993] 1 VR 584 Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 Category: Procedural and other rulings Parties: In proceedings 2016/51926: Plaintiff: Adriana Kostov First Defendant: Fan Fan Zhang Second Defendant: Fairfax Media Publications Pty Ltd Third Defendant: EasyMarkets Pty Ltd