Zhu v Wang (No 2) [2022] NSWCA 105

Zhu v Wang (No 2) [2022] NSWCA 105

Because the appeal produced a mixed outcome, costs at first instance had to be reconsidered by reference to the outcome of the claim and cross-claim. Ms Zhu, HQ Living and De Rucci Bundall failed on the cross-claim, while De Rucci International succeeded against Ms Zhu and HQ Living in reduced amounts; therefore the first, second and third defendants were to pay the plaintiff's costs at first instance. De Rucci International failed completely against HQ Moore Park and HQ Bedding, so it was to pay their costs at first instance. On appeal, HQ Moore Park and HQ Bedding completely succeeded and Ms Zhu and HQ Living obtained substantial reductions, but that success was offset by the failed...

Jurisdiction
Australia
Judgment Date
23 June 2022
Procedural Posture
Costs Application Following Appeal / On the Papers After Appeal Allowed in Part
Outcome
Costs orders made; no order as to costs of the appeal except for costs thrown away by the further amended notice of appeal.
Legal Topics
['costs at First Instance After Appeal' 'costs of Appeal' 'costs Thrown Away by Late Amendment to Notice of Appeal' 'costs Follow the Event' 'discretion as to Costs']
['costs' 'civil Procedure' 'appellate Procedure'] ['costs at First Instance After Appeal' 'costs of Appeal' 'costs Thrown Away by Late Amendment to Notice of Appeal' 'costs Follow the Event' 'discretion as to Costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs Application Following Appeal / On the Papers After Appeal Allowed in Part

Legal Issues

  1. 1 ['What costs orders should be made at first instance in light of the mixed outcome on appeal.' 'What costs orders should be made for the appeal, including costs thrown away by the further amended notice of appeal.' 'Whether costs should follow the event on the claim and cross-claim.']

Ratio Decidendi

Because the appeal produced a mixed outcome, costs at first instance had to be reconsidered by reference to the outcome of the claim and cross-claim. Ms Zhu, HQ Living and De Rucci Bundall failed on the cross-claim, while De Rucci International succeeded against Ms Zhu and HQ Living in reduced amounts; therefore the first, second and third defendants were to pay the plaintiff's costs at first instance. De Rucci International failed completely against HQ Moore Park and HQ Bedding, so it was to pay their costs at first instance. On appeal, HQ Moore Park and HQ Bedding completely succeeded and Ms Zhu and HQ Living obtained substantial reductions, but that success was offset by the failed...

Court Disposition

Costs orders made; no order as to costs of the appeal except for costs thrown away by the further amended notice of appeal.

Orders

  • ["The first, second and third defendants to pay the plaintiff's costs of and incidental to the proceedings at first instance." "The plaintiff to pay the fourth and fifth defendants' costs of the proceedings at first instance." "The appellants to pay the respondents' costs thrown away by reason of the further amended...