Chen v Fang [2019] NSWSC 960

Chen v Fang [2019] NSWSC 960

The repayment of the loan in September 2018 rendered only part of the Cross-Claim unnecessary because the Cross-Claim also sought relief in respect of other June 2014 agreements beyond the Deed of Loan, Deed of Guarantee and mortgage. Mr Fang had not shown a good reason to depart from the ordinary position under UCPR r 42.19(2), so the cross-claimants should pay the cross-defendants' costs of the Cross-Claim. However, the Cross-Claim was not shown to be a clear case of hopelessness, futility or abuse of process, and the pleading deficiencies and post-repayment conduct did not justify indemnity costs. Costs were therefore ordered on the ordinary basis.

Jurisdiction
Australia
Judgment Date
30 July 2019
Procedural Posture
Costs Application Concerning Discontinuance of a Cross Claim / On the Papers; Application for Leave to Discontinue Cross Claim and Associated Costs Orders
Outcome
Leave granted to the Cross-Claimants to discontinue the Cross-Claim on the basis that the Cross-Claimants pay the Cross-Defendants' costs of the Cross-Claim on the ordinary basis.
Legal Topics
['discontinuance of Proceedings' 'costs Following Discontinuance' 'indemnity Costs' 'ordinary Basis Costs' 'strike Out or Summary Dismissal' 'cross Claim Concerning Loan, Guarantee and Mortgage Arrangements']
['civil Procedure' 'costs' 'equity'] ['discontinuance of Proceedings' 'costs Following Discontinuance' 'indemnity Costs' 'ordinary Basis Costs' 'strike Out or Summary Dismissal' 'cross Claim Concerning Loan, Guarantee and Mortgage Arrangements']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Application Concerning Discontinuance of a Cross Claim / On the Papers; Application for Leave to Discontinue Cross Claim and Associated Costs Orders

Legal Issues

  1. 1 ['Whether there was a positive ground or good reason to depart from the default costs position under Uniform Civil Procedure Rules 2005 (NSW), r 42.19 on discontinuance of the Cross-Claim.' 'Whether repayment of the loan in September 2018 rendered the Cross-Claim futile due to a supervening event.' 'Whether the Cross-Claim or proposed amended Cross-Claim was hopeless, futile, frivolous, vexatious or an abuse of process so as to justify indemnity costs.' 'Whether the cross-claimants unnecessarily prolonged the Cross-Claim after repayment of the loan.' 'Whether any future proceedings by Mr Fang or Ms Liu concerning the same or substantially the same subject matter should be stayed until costs were paid.']

Ratio Decidendi

The repayment of the loan in September 2018 rendered only part of the Cross-Claim unnecessary because the Cross-Claim also sought relief in respect of other June 2014 agreements beyond the Deed of Loan, Deed of Guarantee and mortgage. Mr Fang had not shown a good reason to depart from the ordinary position under UCPR r 42.19(2), so the cross-claimants should pay the cross-defendants' costs of the Cross-Claim. However, the Cross-Claim was not shown to be a clear case of hopelessness, futility or abuse of process, and the pleading deficiencies and post-repayment conduct did not justify indemnity costs. Costs were therefore ordered on the ordinary basis.

Court Disposition

Leave granted to the Cross-Claimants to discontinue the Cross-Claim on the basis that the Cross-Claimants pay the Cross-Defendants' costs of the Cross-Claim on the ordinary basis.

Orders

  • ["Leave granted for the Cross-Claim to be discontinued on the basis that the Cross-Claimants pay the Cross-Defendants' costs of the Cross-Claim on the ordinary basis." 'The costs of the Cross-Claim include the costs of Mr Lord, Newton Park Pty Ltd and The International Equine Group Pty Ltd in respect of their Notice...