Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2019] NSWSC 1546

Supreme Court New South Wales

Medium Neutral Citation: Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2019] NSWSC 1546 Hearing dates: 28 October 2019 Date of orders: 08 November 2019 Decision date: 08 November 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Pursuant to r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) and s 1335 of the Corporations Act 2001 (Cth), order the defendants (the judgment debtors) to provide security for the plaintiffs' (the judgment creditors') costs of the notice of motion filed 2 September 2019 seeking to set aside the Consent Orders made in these proceedings on 18 October 2018, such security to be in the sum of $120,000 and to be paid into court or by the provision of an unconditional bank guarantee in a form and from a bank or financial institution acceptable to the judgment creditors (or as approved by the court) within 28 days. 2. In the event that Order 1 is not complied with by the time specified, stay the hearing of the notice of motion filed 2 September 2019 until further order. 3. Defer ruling on the application for payment into court of the judgment sum and costs the subject of the Consent Orders made on 18 October 2018 until the hearing of the notice of motion to set aside those orders. 4. Reserve the costs of the judgment creditors' notice of motion filed on 14 October 2019 to be dealt with after the hearing of the notice of motion referred to in Orders 1 to 3 above. Catchwords: COSTS — Security for costs — Relevant factors – application for security for costs of motion by judgment debtors to set aside consent orders made in October 2018 for the entry of judgment in favour of the plaintiffs and other relief – applications for payment into court or for security to be provided for the judgment debt and indemnity costs orders – jurisdiction to make orders sought – consideration of discretionary factors raised against the grant of security – security for the costs of the set aside motion ordered to be provided – otherwise applications in relation to judgment debt and security for costs orders deferred to the hearing of the set aside motion. Legislation Cited: Conveyancing Act 1919 (NSW), s 109 Corporations Act 2001 (Cth), s 1335 Uniform Civil Procedure Rules 2005 (NSW), r 42.21 Cases Cited: 15 Management Pty Ltd v Newstar Sports Management Pty Ltd [2009] NSWSC 1208 Allfox Building Pty Ltd v Bank of Melbourne Ltd (1992) NSW ConvR 55-634 Anderson v Patersons Securities Ltd [2019] NSWSC 852 Australia and New Zealand Banking Group Ltd v James (No 3) [2019] NSWSC 832 Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49 Bayblu Holdings Pty Ltd v Capital Finance Australia Ltd [2011] NSWCA 39; (2011) 279 ALR 166 Beach Petroleum NL v Johnson (1992) 7 ACSR 203 Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd [2007] 2 Qd R 501; [2007] QCA 141 Cowell v Taylor (1885) 31 Ch D 34 Dimitrovski v Australian Executor Trustees Ltd [2013] NSWSC 337 Epping Plaza Fresh Fruit & Vegetables Pty Ltd v Bevendale Pty Ltd [1999] 2 VR 191 Fiduciary Ltd v Morningstar Research Pty Ltd [2004] NSWSC 664 Goater v Commonwealth Bank of Australia [2014] NSWCA 265 Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27 HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 87 Hurworth Nominees Pty Ltd v ANZ Banking Group Ltd [2005] NSWSC 1360 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74 Jazabas Pty Ltd v Haddad [2007] NSWCA 291; (2007) 65 ACSR 276 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076 Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302 Luo v Windy Hills Australian Game Meats Pty Ltd (No 2) [2018] NSWSC 1139 Magafas v Carantinos [2009] NSWSC 1124 Miles v Official Receiver in Bankruptcy (1963) 109 CLR 501; [1963] HCA 24 Mushroom Composters Pty Ltd v IS & De Robertson Pty Ltd [2014] NSWCA 231 Oswal v Australia and New Zealand Banking Group Ltd [2016] VSC 52 Owners Corp Strata Plan 64970 v Austruc Constructions Ltd [2007] NSWSC 778 Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587; [2017] NSWCA 341 Owners Strata Plan Number 57164 v Yau [2018] HCASL 101 Polstead Pty Ltd (in liq) v Shah [2009] NSWSC 560 Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443 Rajski v Computer Manufacture & Design Pty Ltd [1983] 2 NSWLR 122 RAMS Mortgagee Corporation Ltd v Skipworth [2007] WASC 24 Trojan Marketing & Consultants Pty Ltd v Kirela Pty Ltd [2018] NSWSC 1786 Uptown Sydney Development Corporation Pty Ltd v Bank of New Zealand (No 1) (1993) 11 ACSR 300 Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2019] NSWSC 1547 Zisti V Bartter Enterprises Pty Ltd [2013] NSWCA 146 Category: Procedural and other rulings Parties: Xinfeng Australia International Investment Pty Ltd (First Plaintiff) Yuqing Liu (Second Plaintiff) GR Capital Group Pty Ltd (First Defendant) The One Capital Group Pty Ltd (Second Defendant) Wensheng Liu (Third Defendant) Representation: Counsel: WG Muddle SC with P McDonald (Plaintiffs) DR Pritchard SC with A Macauley (Defendants)