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[2025] NSWSC 553
General information, not legal advice.
Supreme Court of NSW
2025-05-30
Stevenson J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 7) [2025] NSWSC 553
Hearing dates: On the papers; written submissions 26 May 2025
Decision date: 30 May 2025
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision: No costs order in favour of the plaintiff; cross-claimant to pay cross-defendant’s costs of and incidental to the hearing the subject of the 15 October 2024 judgment; no costs order in relation to the hearing the subject of the 5 May 2025 judgment
Catchwords: COSTS – general rule that costs follow the event – application of the rule and discretion – costs of motion seeking stay of judgment – where cross-claimant ultimately successful in having stay lifted but unsuccessful in relation to earlier hearing of motion – where unnecessary for plaintiff to be an active participant on the motion
Cases Cited: Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd [2024] NSWCA 174
Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 5) [2024] NSWSC 1287
Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 6) [2025] NSWSC 431
Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 2) [2023] NSWSC 1405
Category: Costs
Parties: Shinetec (Australia) Pty Ltd (Plaintiff)
The Gosford Pty Ltd (First Defendant/Cross-Claimant/Applicant)
David Anthony Hurst (Second Defendant/Applicant)
David Anthony Sampson (Third Defendant/Applicant)
Bank of China, Sydney (Fourth Defendant/Cross-Defendant/Respondent)
Macquarie Bank Limited (Fifth Defendant)
Representation: Counsel:
F Assaf SC / M A Karam / A Berriman (Plaintiff)
P S Braham SC / D P Farinha (First Defendant/Cross-Claimant, Second and Third Defendants/Applicants)
Solicitors:
Pinsent Masons (Plaintiff)
Johnson Winter Slattery (First Defendant/Cross-Claimant, Second and Third Defendants/Applicants)
King & Wood Mallesons (Australia) (Fourth Defendant/Cross-Defendant/Respondent)
File Number(s): 2021/220732
The background to this matter is set out in my judgments of 15 October 2024 [1] and 5 May 2025. [2] I shall use the same abbreviations here.
On 20 November 2023, I entered judgment in favour of Gosford against the Bank for $37 million. [3]
On 15 December 2023, I stayed that judgment pending consideration by the Chinese Court of the Bank’s application to that Court to dissolve its Civil Ruling that currently restrains the Bank from making payment under the Letter of Credit that is the subject of my 20 November 2023 judgment. [4]
By Notice of Motion filed on 3 September 2024, Gosford sought an order that the stay be lifted.
On 15 October 2024, I declined to lift the stay and stood the motion over pending the Chinese Court’s further consideration of the matter.
On 2 May 2025 Gosford reagitated its application to lift the stay. On 5 May 2025 I ordered that the stay continue until 30 June 2025 or the date on which the Chinese Court gives judgment, whichever is earlier, and that the stay be thereupon lifted.
The result of my 5 May 2025 judgment is that Gosford’s motion has, in effect, been disposed of.
I am now dealing with the costs of Gosford’s motion.
In one sense, Gosford has ultimately succeeded in that, whatever the Chinese Court may decide, the stay will be lifted no later than 30 June 2025.
However, Gosford was unsuccessful in relation to the hearing leading to my judgment of 15 October 2024 and did not, during its most recent attempt to reagitate the question of lifting the stay, obtain the relief it then sought: an immediate lifting of the stay.
Indeed, I did not accept Gosford’s principal submission in favour of taking that course. [5]
The course I ultimately adopted was one which arose from something that Mr Braham SC, who appeared with Mr Farinha for Gosford, said in oral argument:
“There is one other matter I would put, and this might be in reply to Mr Kay Hoyle [who appeared on that occasion with Ms Ernst for the Bank], but your Honour could, in light of his submissions, fashion an order - I am not suggesting you would do this - but you could fashion an order that directs that the stay continues until 1 July, or such earlier time as the Chinese Court delivers reasons. You could do that.”
As Gosford has pointed out, in juridical terms, I found that the stay was necessary for reasons based on “reasons of comity”. [6]
However, in practical terms, the stay operated for the benefit of the Bank as the party the subject of my judgment of 20 November 2023, and as the party also constrained by the Civil Ruling from making payment.
The stay also indirectly operated for the benefit of Shinetec, which will ultimately be liable to its parent, Shanxi, for any sum paid by the Bank.
The stay, and Gosford’s ultimately successful application to lift the stay, arose out of decisions made by Shinetec and Shanxi to commence and maintain concurrent proceedings in two forums, a matter that was the subject of criticism by the Court of Appeal. [7]
Although Shinetec had an indirect interest in maintaining the stay, it was not, in my opinion, necessary for it to be an active participant in the debate as to whether the stay should be continued; particularly represented by senior and two junior counsel. Shinetec could reasonably have left it to the Bank to act as contradictor to Gosford’s application. Accordingly, I do not propose to make any costs order in favour of Shinetec.
As to the position between Gosford and the Bank, as Gosford was unsuccessful in relation to the hearing the subject of my 15 October 2024 judgment, Gosford should pay the Bank’s costs of and incidental to that aspect of the motion.
As to the aspect of Gosford’s motion the subject of my 5 May 2025 judgment, my conclusion is that the appropriate order is that there be no costs order as between Gosford and the Bank.
The parties should bring in short minutes to give effect to these reasons.
I note that Gosford’s motion of 3 September 2024 is currently listed for directions on 4 July 2025. I invite the parties to consider whether that motion should now be dismissed.
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Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 5) [2024] NSWSC 1287.
Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 6) [2025] NSWSC 431.
Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 2) [2023] NSWSC 1405.
Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 3) [2023] NSWSC 1596.
See [24] of my 5 May 2025 judgment.
See [40] of my 15 October 2024 judgment.
Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd [2024] NSWCA 174 at [195].