Guo v Gao

Background Facts

1. It is fair to say that the factual background is somewhat complex. I have described the relevant facts in the judgment in the presumption of death proceedings. What is set out below is merely a summary to provide some clarity.
2. The deceased and the Defendant commenced communicating by letters and telephone calls in about 1990. They commenced a relationship and began living together in February 1992. In December 1992, the Defendant emigrated from China to Australia and the relationship ended in 1993.
3. In 1994, the deceased married Jin Hua Guo. The Plaintiff was born in March 1995. The deceased and Jin Hua Guo separated in 1999. They were divorced in about January 2000.
4. The Defendant and the deceased then recommenced their relationship and in around February 2000, they returned, together, to Australia. They were married on 18 March 2000.
5. The Defendant and the deceased then purchased the Carlingford property, as joint tenants, on 3 October 2000. The purchase price was $470,000. There is a dispute as to the source of the purchase price.
6. At the date of the contract for the purchase of the Carlingford property, the deceased was overseas. She had travelled to China in September 2000 and only returned to Australia in October 2000.
7. The deceased disappeared on or about 11 April 2001.
8. I have set out in the judgment, in the presumption of death proceedings, the events that occurred after April 2001 at [71] - [94].

Submissions

1. The Defendant seeks $55,440 by way of security for the costs of defending the trust claim in the Plaintiff's proceedings. In the affidavit in support of the notice of motion, Mr Smith, the solicitor for the Defendant, who was not cross-examined, explained that 75% of the Defendant's total costs of the proceedings from the date of the affidavit to the conclusion of a four day hearing would be spent defending the trust claims specifically. He estimated that $73,920 would be the total future costs incurred by the Defendant and thus, $55,440, being 75% of the total costs, was estimated as the ordinary costs, to defend the trust claims.
2. The three main bases for the Defendant's claim for security for costs, are: 1. The Plaintiff is ordinarily resident outside Australia (she is domiciled in China). 2. She has no assets (either in Australia or elsewhere). By her own admission she is impecunious. 3. There is no reciprocal agreement with China for the enforcement of any costs orders made in Australia.
3. The Defendant also submitted that there was no credible admissible evidence to support the assertion that the deceased had contributed to the payment of the purchase price of the Carlingford property, especially bearing in mind the Defendant's evidence to the contrary.
4. The Defendant noted that the Court should consider the possibility the Plaintiff might be able to obtain financial assistance from her uncle, the brother of the deceased, who has taken an active part in the proceedings. (In my view, this is speculation, as there is no evidence of his financial circumstances or his ability, or willingness, to assist the Plaintiff financially.)
5. The Plaintiff submitted that it was inapt for the Defendant to separate the trust claims from the rest of the proceedings as the trust issue is integral to the determination of the claims, by each of the parties, for a family provision order, if one is to be made. How the Carlingford property is held must be determined as part of the case brought by the Statement of Claim and the Cross-Claim. This will be necessary to determine the nature and value of the deceased's estate and notional estate, and whether it is then necessary to make a notional estate order, if the Carlingford property passes by survivorship, to the Defendant.
6. The Plaintiff also noted that her trust claim relating to the rent received by the Defendant from the Carlingford property will also need to be determined as rent received would not pass to the Defendant by survivorship.
7. In arguing that the trust claim had merit, the Plaintiff pointed to the documentary evidence referred to in the affidavit of 13 July 2020 of Xian Guo and the Coroner's Report which noted that the deceased had sent large sums of money from China, to Australia, at about the time of the purchase of the Carlingford property. She also submitted that the Defendant's case was based on mere assertions and lacked documentary evidence to support those assertions.
8. The assertions and counter-assertions raise a disputed matter of fact and each of the parties will, undoubtedly, be cross-examined about them. Accordingly, I cannot determine, at this stage, who will succeed on the trust question. Yet, the investigation of the issue will be relevant, also, on the contribution of the Defendant and of the deceased to the purchase of the Carlingford property.
9. The Plaintiff also argued that as the only child of the deceased, she has a strong claim for a family provision order. She submitted that the strength of her claim is important to the question of security as any family provision order will provide her with assets in Australia in which to meet any adverse costs order on the trust claims.
10. The Plaintiff submitted that as the trust claims had been raised in October 2019, it had been open to the Defendant to make an application for security for costs, but he had not done so until September 2021, when the matter was ready, or almost ready, to obtain a hearing date.
11. Finally, I note the Plaintiff's evidence in her affidavit sworn 22 September 2021, that she deposed that if she were ordered to pay the costs sought, "I would probably have no choice but to pause or even stop the current proceedings".

The Law

1. In Milosevska v Milosevski [2019] NSWSC 711, I summarised, what in my view, were the general principles relating to security for costs. I stated that I did not intend those general principles to be considered to be rigid formulae, or elevated into rules of law. Nor, do I suggest that they constrain the wide discretion provided to the Court in these matters.
2. At [76] I stated: "(a) An order for security for costs is interlocutory in nature. (b) The starting point, in the exercise of discretion, is, of course, the rule conferring the power: Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302, at [98]. The relevant jurisdictional condition must, first, be satisfied, before the discretionary power to order security for costs is enlivened: FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69; (2000) 22 WAR 241, at [21]; Sas Global Forrestdale Pty Ltd v Samsera Pty Ltd [2010] WASC 309, at [10]. (c) Thus, there are two stages in the Court's consideration. The first stage is not discretionary, and it depends, entirely, on whether any of the facts provided for in UCPR r 42.21(1) are satisfied. Once the jurisdictional threshold has been reached, the second stage of the decision, namely, whether or not to grant security is discretionary. (d) The defendant, as applicant for security for costs, has an evidentiary burden of leading evidence to establish an entitlement to such the order, and to such an order in a particular amount. The plaintiff, then, may provide evidence of the reasons why the Court's discretion ought not to be exercised, by the Court, either submitting that the order for security should be refused, and/or, if made, to order security in a lesser amount than is sought by the defendant. (e) The discretion given to the Court is unfettered and requires the court to weigh all the circumstances of the case: PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321; [1991] HCA 36, at 323. It is an absolute discretion, without any rules for its exercise prescribed. It must, of course, be exercised having regard to the scope and purpose of the legislative provision: Re Coldham; Ex Parte Brideson (1989) 166 CLR 338; [1989] HCA 2, at 347. It must also be exercised judicially, which means that, in every case, the Court must inquire how, on the whole, justice will best be served: King v Commercial Bank of Australia Limited (1920) 28 CLR 289; [1920] HCA 62, per Rich J, at 292. The discretion should not be exercised 'arbitrarily, capriciously or so as to frustrate the legislative intent': (Oshlack v Richmond River Council [1998] 193 CLR 72; [1998] HCA 11, per Gaudron and Gummow JJ, at [22]). (f) As was written in Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744, at [47], the Court is required: 'to take into account all of the relevant facts matters and circumstances and is a judicial discretion to be exercised following the adducing of all evidence by each party to an application seeking to have such an award made. As Giles J (as His Honour then was) made plain in Rosenfield Nominees Pty Ltd v Bain and Co (1988) 14 ACLR 467 at 470, in exercising the discretion as to whether or not to make an order for costs, the Court must have a concern to achieve a balance between ensuring that adequate and fair protection is provided to the defendant, and avoiding injustice to an impecunious plaintiff by unnecessarily shutting it out or prejudicing it in the conduct of the proceedings [cf Street CJ in Buckley v Bennell (1974) 1 ACLR 301 at 304].' (g) The circumstances in which the discretion should be exercised in favour of making the order cannot, and should not, be stated exhaustively: Spiel v Commodity Brokers Australia Pty Ltd (1983) 35 SASR 294. However, UCPR r 42.21(1A) specifies some of the potentially relevant matters in considering whether it is appropriate to make an order for security. The sub-rule enumerates 14 specific matters, which may be regarded as a valuable prompt, to which the Court may have regard, for the purpose of determining whether the order for security should be made, and if so, the nature and quantum of any such order. There is no mandatory command to take into account any of the matters enumerated. In the context of the section, 'may' does not mean 'must'. (To the matters, I would add the character of the proceedings as also being a consideration.) (h) UCPR r 42.21(1)(a), unlike sub-rules (1)(d) and (1)(e), does not include the requirement that 'there is reason to believe that the other party to the litigation will be unable to pay the costs of the litigation'. (i) The weight to be given to any circumstance depends upon its own intrinsic persuasiveness and its impact on other circumstances which have to be weighed: PS Chellaram and Co v China Ocean Shipping Co; Acohs Pty Ltd v Ucorp Pty Ltd (2006) 236 ALR 143, at [12]. (j) The power to order security has been described as a power which is 'essentially one of risk-management between the parties having regard to their legitimate interests both as applicant and respondent': East Grace Corporation v Xing (No 1) [2005] FCA 219, at [6]. On the one hand, the Court must weigh the injustice to the plaintiff, if prevented from pursuing a proper claim by an order for security by unnecessarily shutting him out, or otherwise stultifying the conduct of litigation. Against that, the Court must weigh the injustice to the defendant, if no security is ordered, and at the trial the plaintiff's claim fails and the defendant finds herself, or himself, unable to recover the costs which have been incurred in the defence of the claim from the plaintiff. (k) The operation of the rule is dependent upon that aspect of civil litigation which, generally but not universally, provides that costs orders will follow the event, in the sense that the successful party may expect to recoup at least part of its costs from the unsuccessful party: Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148, per Basten JA, at [69]. In this regard, the purpose of a security for costs order is a protective one to ensure that the primary purposes for having costs orders themselves may be achieved. (l) A person who comes to the jurisdiction and seeks the assistance of the Court in obtaining a remedy against another 'must be prepared to submit to the ordinary processes of that jurisdiction that are associated with its exercise': Mentink v Registrar of Ships [2009] FCA 871. Additionally, 'it is fair for the courts to proceed on a basis which reflects the proposition that those who seek to benefit from litigation should bear the risks and burdens that the process entails': Fiduciary Ltd v Morningstar Research Pty Ltd, (2004) 208 ALR 564; [2004] NSWSC 664, at [83]. (m) Thus, the purpose of an order for security for costs is to create a fund, within the jurisdiction, against which the defendant might enforce any costs order made in her, his or its, favour, thereby providing a level of protection from the risks, uncertainties and delay of attempts to enforce that costs liability in the plaintiff's country of residence, whilst also recognising 'modern authority… that the decision whether to order security for costs… remains a discretionary one': Allison v Harmsworth [2018] SASC 27, per Doyle J, at [24]-[25]. (n) The likely complexity and uncertainty associated with enforcement of a costs order of this Court in the country in which the plaintiff is 'ordinarily resident' will be a relevant consideration. A defendant is not expected to bear the uncertainty of enforcement in a foreign country: Cheng Xi Shipyard v The Ship "Falcon Trident" [2006] FCA 759, at [9]; Gujarat NRE Australia Pty Ltd v Williams [2006] NSWSC 992, at [29]. This principle is not absolute and must be weighed against other discretionary considerations: Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245. However, the difficulty in enforcing an order for costs overseas, against a plaintiff who is not ordinarily resident in New South Wales, will usually be sufficient to ground an order: Shackles & Daru Fish Supplies Pty Ltd v Broken Hill Proprietary Co Ltd [1996] 2 VR 427 (especially where there is no reciprocal right of enforcement in the relevant foreign jurisdiction or legislation which may make recovery difficult: Dense Medium Separation Powders Pty Ltd v Gondwana Chemicals Pty Ltd (in liq) [2011] NSWCA 84.) (o) In considering the plaintiff's prospects of success, the Court cannot go into the merits, in detail, unless it can clearly be demonstrated that there is a high degree of probability of success or failure: Porzelack KG v Porzelack (UK) Ltd [1987] 1 WLR 420, per Sir Nicolas Browne-Wilkinson V-C, at 423. Usually, an assessment of the prospects of success, at an interlocutory stage, will usually only enable the Court to have an impression. Clearly, if the plaintiff appears to have a strong case, the chances of it being ordered to pay costs will be slight. Then, the case for requiring security will also be slight. Correspondingly, if the plaintiff's case appears weak, the defendant will be on stronger ground in pressing for protection against a barren order for costs. When looking at the merits, it may be necessary to go further than simply concluding that the proceedings are not frivolous and that there are real issues to be tried: Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302, at [97]-[98]. (p) An application for security for costs should be considered in the framework constituted by ss 56-60 of the Civil Procedure Act. (q) A delay in bringing the application for security for costs is a factor in the exercise of the Court's discretion: Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744, at [68]. The factor of delay will be less significant if the hearing is not imminent, or if there has been some forewarning, or foreshadowing, of an application: Ollerenshaw v The Uniting Church in Australia Property Trust (NSW) [2017] NSWSC 1637, per Walton J, at [55]. Often, the longer the delay, and the greater the costs that the plaintiff has been allowed to incur, the less likely it will be that an order for security will be made: Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114. (r) The factor of delay may be less relevant if it cannot be seen to generate, or produce, some consequence of significance to the Plaintiff. Its relative significance, however, 'as a factor in the exercise of judicial discretion to award security for costs will inevitably vary with the facts of each case, the nature, extent and cause for any delay and the overall justice of the case … along a spectrum from the slight to the extreme': PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48, at [10]-[11]. (s) Setting a limit on the amount to be provided by way of security for costs is part of the exercise of the court's discretion. There should be some evidence by which the Court can estimate the defendant's probable recoverable costs: Fiduciary Ltd v Morningstar Research Pty Ltd, at [132]; Idoport Pty Ltd v National Australia Bank Ltd, at [47]. (t) Pre-estimating costs for security for costs purposes is often a difficult question. The Court takes a 'broad brush' approach to the quantum of an order for security for costs, and does not attempt a detailed costs assessment: Ashington Capital Pty Ltd v Parissen Capital (Project X) Pty Ltd [2012] NSWSC 410 at [18]; In the matter of Felan's Fisheries Pty Limited [2016] NSWSC 1351, at [40]. The amount cannot be the subject of precise mathematical calculation, although, of course, the quantum should be subject of a proper assessment: Bay of Plenty Pharmacy Services Limited v Chemworks Limited [2019] NZHC 785, at [10]-[11]. The Court must still carefully examine the reasonableness of the projected costs: April Fine Macao Commercial Offshore Ltd v Moore Business Systems Australia Ltd (2009) 75 NSWLR 619; [2009] NSWSC 867. (u) In any event, an order for security for costs should not provide a complete indemnity for costs: Brundza v Robbie & Co (No 2) (1952) 88 CLR 171, at 175. In the ordinary course, an order for costs will not fully compensate the successful party. (v) The amount of security that may be ordered may extend, not only to future costs but also to costs already incurred, if an application for security for costs is made promptly: Narradine Pty Ltd v Mascot Steel and Tools Pty Ltd [2012] NSWSC 385, per Black J, at [22]. However, in the ordinary course, 'where there is a delay in seeking security for costs, the security ordered should represent only the future unincurred costs and should not include those costs that have already been expended. One reason put forward for that is the unfairness of allowing the plaintiff to incur costs without being put on notice that an application for security will be made': Chocron v Onkoud [2018] NSWSC 1205, per Davies J, at [10]. (w) The Court may consider tailoring the order for security to the particular circumstances of the case. For example, there may be cases in which the Court determines that there should be a staged approach to the quantum of the security rather than a 'once and for all' determination of that quantum. (x) Apart from UCPR r 42.21(1), s 67 of the Civil Procedure Act is also a source of power for the Court to order a permanent, or temporary, stay of the proceedings. Such a stay can be ordered with payment of security for costs: Phillips Electronic Australia Pty Ltd v Matthews (2002) 54 NSWLR 598; [2002] NSWCA 157, per Hodgson JA, at [47]; De Jong v Carnival PLC [2016] NSWSC 347, per Beech-Jones J, at [45]. (y) The existence of the Court's inherent jurisdiction to make an order for security for costs is well established: Rajski v Computer Manufacture & Design Pty Ltd [1982) 2 NSWLR 443 at 447-448, affirmed on appeal [1983] 2 NSWLR 122. Black J in In the matter of Elsmore Resources Ltd [2014] NSWSC 1247, at [7], described the inherent power to order security for costs 'as an incident of its control over its own practice and procedure to procure proper and effective administration of justice and prevent abuse of process: Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105, at [34]; LRSM Enterprise Pty Ltd v Zurich Australia Insurance Ltd [2014] NSWCA 88, at [14]'. However, whether it adds anything, of practical significance, to a determination of an application under the UCPR has been doubted: Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813, per Lindsay J, at [57]."
3. These are the principles that I adopt.

Determination

1. It appears the Plaintiff concedes that the threshold test in the Uniform Civil Procedure Rule 2005 (NSW) r 42.21(1)(a) has been met, in that she is ordinarily resident outside Australia and that she would not be able to meet a costs order on the trust claim, if one is made in the substantive proceedings. By her own admission she is impecunious and has no assets in Australia, or in China, to meet an order for security for costs.
2. I also accept, as did the Court of Appeal in Li v State of New South Wales [2013] NSWCA 165, that the Defendant, as in those proceedings, would likely have difficulty, and would inevitably incur additional costs, in attempting to enforce, in China, any costs judgment he might obtain against the Plaintiff.
3. Having established these matters, I turn to consider whether to exercise the discretion to order security for costs, and if so, the quantum of any order. In doing so, I have considered a wide range of factors.
4. It seems to me that important in the Court's consideration is the need to take into account the nature of the proceedings in respect of which an order for security is sought. In this regard, I note the claims made by each of the parties in the Statement of Claim and the Cross-Claim, particularly that each has sought a family provision order and that each is asserting a trust.
5. At [28.4], GE Dal Pont, in his Law of Costs (4th ed, 2018, LexisNexis Butterworths, Australia), referred to by Lindsay J in Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813, notes that: "[28.4] … [Courts] are reticent to accede to applications for security for costs in classes of case where, aside from any statutory directive, costs are not uncommonly met out of a fund. A typical example is the case law involving justifiable challenges to testamentary dispositions. Unsuccessful applications in family provision cases, for instance, may (increasingly less so) lead the court to make no order as to costs, particularly if it would have a detrimental effect on the applicant's financial position. As such, a court is unlikely to order security in such cases unless convinced that the claim is frivolous or otherwise unmeritorious."
6. A similar view was expressed by Gaudron J's decision in Singer v Berghouse (1993) 114 ALR 521; [1993] HCA 35, in which her Honour dismissed an application for security for costs of an appeal to the High Court upon the basis that, due to the nature of family provision cases, so far as costs are concerned, there was no certainty that, even if unsuccessful in the appeal, the appellant would be ordered to pay the costs of the appeal.
7. It is also important to note that the nature and value of the deceased's estate and notional estate must be determined and that will include the determination of the trust claims. Considering both parties have a claim for a family provision order on foot, it would seem it is also in the Defendant's interests to determine the nature and value of the deceased's estate out of which any order for provision can be granted.
8. It is also important that it was not suggested that the Plaintiff's claim is not bona fide. Whilst it is not ordinarily appropriate to give detailed consideration to the merits of the Plaintiff's case, as the only child of the deceased for whom no provision is likely to be made under the operation of the rules of intestacy, the Plaintiff has a reasonable prospect of success in regards to her claim for a family provision order. More than just being an eligible person under s 57 of the Succession Act, she has filed evidence (to which I have referred in the previous judgment) that the deceased wished to provide for her and bring her to Australia before her disappearance. Inevitably, this will need to be weighed up against the Defendant's competing financial needs and moral claim as the spouse of the deceased. However, considering it was not a long relationship before the deceased's disappearance and the circumstances regarding her disappearance, on its face, the Plaintiff has a bona fide claim with reasonable prospects of success depending upon the nature and value of the deceased's estate and notional estate. Even if she were unsuccessful, it could be argued that she should not be ordered to pay costs.
9. The Plaintiff has stated that if any order for security is made, she would have no choice but to pause, or stop, the current proceedings. The allegation was not the subject of challenge. Thus, if an order for security were made, it would stultify an arguable case being made by the Plaintiff.
10. Furthermore, if a stay of the Plaintiff's proceedings were ordered, that would not assist either party and would simply delay the completion of the administration of the deceased's estate.
11. I have remembered that an application for security for costs should be brought promptly. Whilst the Defendant was aware of the trust claim for over 18 months before filing the notice of motion, it was not unreasonable that he waited until the determination of the presumption of death proceedings. Furthermore, there is no reason to suppose that the delay in making the application, in the circumstances, has caused any prejudice to the Plaintiff.
12. In all the circumstances, I am not prepared to exercise my discretion and the application for security for costs must be refused.
13. The Court orders that: 1. The Defendant's notice of motion for security for costs be dismissed. 2. The Plaintiff's costs of the notice of motion be the Plaintiff's costs in the cause. 3. There be no order as to the Defendant's costs of the notice of motion, to the intent that he bear those costs personally. 4. Stand the matter over for directions on 8 November 2021.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 October 2021