BCEG International (Australia) Pty Ltd v Xiao (No 3) [2022] NSWSC 1221

BCEG International (Australia) Pty Ltd v Xiao (No 3) [2022] NSWSC 1221

The defendants' conduct—making and later abandoning privilege claims, advancing defences they could not have believed to be true, serving evidence and discovery late, and engaging in unnecessarily difficult litigation—constituted relevant delinquency and exceptional circumstances justifying an indemnity costs order...

Source-derived case information.

Parties
Plaintiff: BCEG International (Australia) Pty Ltd; First Defendant: Yu Xiao; Second Defendant: Yanying Chen; Third Defendant: Interlink Laboratory Pty Ltd; Fourth Defendant: Interlink Wagga Central Pty Ltd; Fifth Defendant: West Wyalong Marketplace Pty Ltd
Jurisdiction
Australia
Judgment Date
12 September 2022
Procedural Posture
Costs Application / Post Judgment Costs Determination
Outcome
Defendants to pay plaintiff's costs on party/party basis up to 31 August 2020 and on an indemnity basis from 1 September 2020; further directions made regarding counsel's affidavit.
Legal Topics
Indemnity Costs, Litigation Conduct, Privilege Against Self Incrimination, Fraud, Settlement Offers
Equity Commercial Law Costs Indemnity Costs Litigation Conduct Privilege Against Self Incrimination Fraud Settlement Offers

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Parties

BCEG International (Australia) Pty Ltd

Plaintiff

Yu Xiao

First Defendant

Yanying Chen

Second Defendant

Interlink Laboratory Pty Ltd

Third Defendant

Interlink Wagga Central Pty Ltd

Fourth Defendant

West Wyalong Marketplace Pty Ltd

Fifth Defendant

Procedural Posture

Costs Application / Post Judgment Costs Determination

Legal Issues

  1. 1 Whether defendants' conduct warrants order for indemnity costs
  2. 2 Whether non-acceptance of plaintiff's settlement offer justifies indemnity costs

Ratio Decidendi

The defendants' conduct—making and later abandoning privilege claims, advancing defences they could not have believed to be true, serving evidence and discovery late, and engaging in unnecessarily difficult litigation—constituted relevant delinquency and exceptional circumstances justifying an indemnity costs order from 1 September 2020 against all defendants.

Court Disposition

Defendants to pay plaintiff's costs on party/party basis up to 31 August 2020 and on an indemnity basis from 1 September 2020; further directions made regarding counsel's affidavit.

Orders

  • Vacate Order 13 made on 22 July 2022.
  • Pursuant to s 98(1)(c) Civil Procedure Act 2005 (NSW), defendants to pay plaintiff's costs of the proceedings on a party and party basis up to and including 31 August 2020, and on an indemnity basis from 1 September 2020 on.