Chen v Fang [2019] NSWSC 960

Supreme Court New South Wales

Medium Neutral Citation: Chen v Fang [2019] NSWSC 960 Hearing dates: On the papers Date of orders: 30 July 2019 Decision date: 30 July 2019 Jurisdiction: Equity Before: Darke J Decision: Leave granted to Cross-Claimants to discontinue Cross-Claim on the basis that the Cross-Claimants pay the Cross-Defendants' costs of the Cross-Claim on the ordinary basis. Catchwords: COSTS – discontinuance of proceedings – whether positive ground or good reason to depart from the default position under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 42.19 – cross-claimants guaranteed repayment of a loan under a Deed of Loan and Deed of Guarantee – where cross-claimants filed a Cross-Claim seeking to be discharged from various agreements including the Deed of Loan and Deed of Guarantee – where loan subsequently repaid by borrower – whether repayment of loan rendered Cross-Claim futile due to a supervening event – only part of Cross-Claim rendered futile by reason of the repayment – no reason to depart from the default position under UCPR r 42.19

COSTS – discontinuance of proceedings – terms of discontinuance – application by cross-defendants for the cross-claimants to pay indemnity costs – whether Cross-Claim raised hopeless or futile claims – whether pursuit of Cross-Claim involved an abuse of process – where pleadings in Cross-Claim were in certain respects deficient – whether cross-claimants unnecessarily prolonged the prosecution of the Cross-Claim – costs assessed on the ordinary basis Legislation Cited: Competition and Consumer Act 2010 (Cth), s 87, Sch 2 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 42.19 Cases Cited: Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302 Fordyce v Fordham (2006) 67 NSWLR 497; [2006] NSWCA 274 McGuirk v University of New South Wales [2009] NSWSC 1424 One.Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Ralph Lauren 57 Pty Limited v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Category: Costs Parties: Changqui Chen (Plaintiff/First Cross-Defendant) Leo Shi Ran Fang (First Defendant/First Cross-Claimant) Weixiong Liu (Second Defendant/Second Cross-Claimant) Newton Park Pty Ltd (Third Defendant/Second Cross-Defendant) Peter Lord (Third Cross-Defendant) Jingxiong Liang (Fourth Cross-Defendant) The International Equine Group Pty Ltd (Fifth Cross-Defendant) Representation: Counsel: Mr F Santisi (Plaintiff/First Cross-Defendant) Mr J Baird (First Defendant/First Cross-Claimant and Second Defendant/Second Cross-Claimant) Mr A Hopkins (Third Defendant/Second Cross-Defendant, Third and Fifth Cross-Defendants)