Guojin Huang v Jinghong Wei

SUMMARY

1. By notice of motion filed on 25 November 2022 the successful plaintiff, Mr Huang, seeks these orders against the defendant, Mr Wei: "1 An order that the defendant pay the plaintiff's costs of the reference on the indemnity basis, alternatively, on the ordinary basis. 2 An order that the defendant pay the plaintiff's costs of the proceedings from the termination of the reference up to and including the determination of this notice of motion on the indemnity basis, alternatively on the ordinary basis. 3 Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff's costs the subject of: a. Orders 9 and 10 made on 25 May 2022; b. Any order made in favour of the plaintiff in connection with prayers 1 and 2 of this notice of motion, be fixed as a specified gross sum in the amount as determined by the Court."
2. These reasons assume familiarity and should be read with the Court's earlier judgments which are referred to in [5] and [10] below. By reference to the matters which follow, the Court has concluded that Mr Huang is entitled to the orders he seeks for costs of the balance of the proceedings on the indemnity basis, and for the costs of the proceedings in their entirety to be assessed in the gross sum of $428,500 inclusive of GST. The reasons for those conclusions are: 1. Since the Court delivered its principal judgment in April 2022, Mr Wei has consistently delayed or refused to comply or engage with the orders and processes of the Court, thereby demonstrating a gross procedural delinquency which has led to unreasonable delay and expense for Mr Huang at every turn (see for example Liverpool City Council v Estephan [2009] NSWCA 161 at [91] to [95] per Giles JA (with whom McColl JA and (relevantly) Basten JA agreed). 2. Mr Wei has no real property or other assets of value in Australia. He remains in China. There is no evidence that he is likely to return to Australia. Mr Huang reasonably suggests that it is unlikely that he will ever in fact be able to enforce any judgment for costs against Mr Wei. 3. The litigation between these parties has gone on long enough, having been defended by Mr Wei on a basis which the Court found to be fraudulent. For understandable reasons, Mr Huang no longer wishes to pursue those further remedies to which the Court found Mr Huang was entitled. 4. M Wei's conduct in the last ten months has demonstrated that he is unlikely to participate in any costs assessment, and will only put Mr Huang to further unreasonable delay and expense if an assessment is required.