Xu v Jiang [2020] NSWDC 302

Xu v Jiang [2020] NSWDC 302

Because the plaintiff became bankrupt and the trustee in bankruptcy did not elect to continue the proceedings, the action was deemed abandoned. Applying the ordinary principle that costs follow abandonment or discontinuance, it was appropriate to dismiss the proceedings and make a costs order against the plaintiff personally. Given the history and subject matter of the proceedings, the plaintiff's bankruptcy following the security for costs application, and the desirability of avoiding further assessment expense, a gross sum costs order was appropriate. The court reduced solicitor/client profit costs by a rule of thumb discount but allowed the reasonable disbursements and a reduced amount...

Jurisdiction
Australia
Judgment Date
12 June 2020
Procedural Posture
Civil Proceedings for Repayment of Alleged Loan / Defendant's Notice of Motion for Summary Dismissal and Gross Sum Costs After Plaintiff's Bankruptcy
Outcome
Proceedings dismissed with costs and gross sum costs ordered against the plaintiff in the total sum of $41,762.53.
Legal Topics
['summary Dismissal Under UCPR R 12.7(1)' 'deemed Abandonment Under S 60 of the Bankruptcy Act 1966 (cth)' 'gross Sum Costs Under S 98(4) of the Civil Procedure Act 2005 (nsw)' 'costs Following Abandonment of Proceedings by Reason of Bankruptcy']
['civil Procedure' 'bankruptcy' 'costs'] ['summary Dismissal Under UCPR R 12.7(1)' 'deemed Abandonment Under S 60 of the Bankruptcy Act 1966 (cth)' 'gross Sum Costs Under S 98(4) of the Civil Procedure Act 2005 (nsw)' 'costs Following Abandonment of Proceedings by Reason of Bankruptcy']

Case Brief

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Procedural Posture

Civil Proceedings for Repayment of Alleged Loan / Defendant's Notice of Motion for Summary Dismissal and Gross Sum Costs After Plaintiff's Bankruptcy

Legal Issues

  1. 1 ['Whether the proceedings should be dismissed where the plaintiff became bankrupt and the trustee in bankruptcy made no election to continue the proceedings under s 60 of the Bankruptcy Act 1966 (Cth).' 'Whether costs may be ordered against the plaintiff personally where proceedings are deemed abandoned by reason of bankruptcy and there has been no determination on the merits.' 'Whether it was appropriate to make a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW).' 'Whether the court had sufficient information to assess the quantum of the gross sum costs order.']

Ratio Decidendi

Because the plaintiff became bankrupt and the trustee in bankruptcy did not elect to continue the proceedings, the action was deemed abandoned. Applying the ordinary principle that costs follow abandonment or discontinuance, it was appropriate to dismiss the proceedings and make a costs order against the plaintiff personally. Given the history and subject matter of the proceedings, the plaintiff's bankruptcy following the security for costs application, and the desirability of avoiding further assessment expense, a gross sum costs order was appropriate. The court reduced solicitor/client profit costs by a rule of thumb discount but allowed the reasonable disbursements and a reduced amount...

Court Disposition

Proceedings dismissed with costs and gross sum costs ordered against the plaintiff in the total sum of $41,762.53.

Orders

  • ['Pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW), these proceedings are dismissed with costs.' 'Pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), gross sum costs orders are made against the plaintiff: $30,000 costs plus $9,012.53, making $39,012.53; and $2,750 for estimated future...