Ng v Cheng [2019] NSWSC 280

Ng v Cheng [2019] NSWSC 280

The alternative claim for an equitable charge against the applicant is maintainable and cannot be said to be doomed to failure at interlocutory stage; summary dismissal was not appropriate. The applicant's rejection of a genuine Calderbank offer was unreasonable and warrants an indemnity costs order from 16 November 2018.

Parties
First Plaintiff/first Cross Defendant: Amy Pui Yi Ng; Second Plaintiff/second Cross Defendant; Applicant on Motion: Mable Hui Qing Cheng; Defendant/cross Claimant; Respondent on Motion: Sunny Chang Wei Cheng
Jurisdiction
Australia
Judgment Date
20 March 2019
Procedural Posture
Civil / Interlocutory Motion for Summary Dismissal; Costs Determination
Outcome
Summary dismissal application dismissed. Applicant ordered to pay respondent's costs on indemnity basis from 16 November 2018.
Legal Topics
Summary Dismissal, Constructive Trust, Resulting Trust, Equitable Charge, Costs, Calderbank Offer, Civil Procedure
Equity Summary Dismissal Constructive Trust Resulting Trust Equitable Charge Costs Calderbank Offer Civil Procedure

Case Brief

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Parties

Amy Pui Yi Ng

First Plaintiff/first Cross Defendant

Mable Hui Qing Cheng

Second Plaintiff/second Cross Defendant; Applicant on Motion

Sunny Chang Wei Cheng

Defendant/cross Claimant; Respondent on Motion

Procedural Posture

Civil / Interlocutory Motion for Summary Dismissal; Costs Determination

Legal Issues

  1. 1 Whether the cross-claim against the applicant discloses a reasonable cause of action
  2. 2 Whether summary dismissal is appropriate under r 13.4 UCPR
  3. 3 Whether the applicant should pay indemnity costs due to rejection of Calderbank offer

Ratio Decidendi

The alternative claim for an equitable charge against the applicant is maintainable and cannot be said to be doomed to failure at interlocutory stage; summary dismissal was not appropriate. The applicant's rejection of a genuine Calderbank offer was unreasonable and warrants an indemnity costs order from 16 November 2018.

Court Disposition

Summary dismissal application dismissed. Applicant ordered to pay respondent's costs on indemnity basis from 16 November 2018.

Orders

  • Vary the orders made on 5 March 2019, such that the applicant pay the respondent's costs of the notice of motion for summary dismissal on the indemnity basis from 16 November 2018.