Federal Court of Australia

True EV Distribution Pty Ltd v Shenzhen Xiaopeng Motors Supply Chain Management Co Ltd (Interlocutory Costs) [2026] FCA 534

ORDERS

THE COURT ORDERS THAT:

1.    Further to Order 3 made on 30 March 2026, the applicants pay the respondents’ costs of the interlocutory injunction application heard and decided on 30 March 2026 in the lump sum amount of $341,567.19.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKMAN J:

1    In True EV Distribution Pty Ltd v Shenzhen Xiaopeng Motors Supply Chain Management Co Ltd [2026] FCA 380, I ordered (among other things) that the applicants (collectively, True EV) pay the respondents’ (collectively, XPeng) costs of the interlocutory injunction application which I heard and decided on 30 March 2026, and that the payment of costs be by way of lump sum. The parties have now filed affidavits and written submissions on the quantification of those costs.

2    XPeng seeks a lump sum order in the amount of $348,187.19. They rely on two affidavits of their solicitor, Mr Cash, who has provided a detailed costs summary supporting that figure. Mr Cash has 40 years’ professional experience, largely in commercial litigation. XPeng has discounted their actual costs by 20%, recognising that as a rule of thumb, party-party costs are usually assessed in an amount of about 70% of actual costs. XPeng points to the urgency, complexity and importance of the matters in issue as warranting greater involvement than usual of more senior and experienced practitioners. XPeng points out that True EV filed no fewer than 18 affidavits, with accompanying annexures totalling 7,337 pages, compared with XPeng’s 10 affidavits and annexures totalling 1,316 pages. XPeng also relies on the fact that True EV impugned no fewer than 20 instances of allegedly unconscionable conduct by XPeng, all of which had to be addressed in some measure. The matter was plainly urgent, given that the proceedings were commenced on 3 March 2026 and a decision in relation to the interlocutory injunction application had to be made by 1 April 2026.

3    True EV submits that the amount of the lump sum costs order should be $261,747.97, representing a 40% discount on XPeng’s actual professional fees incurred, and making a number of other deductions from XPeng’s claim. I do not regard a 40% discount to XPeng’s professional fees as appropriate. Despite the fact that the usual discount is about 30%, in my view, XPeng is entitled to costs assessed by applying a discount of 20%, given the urgency, complexity and importance of the matters in issue.

4    With two exceptions, True EV’s submissions concerning particular items which True EV submits should be deducted have been fully answered by Mr Cash’s affidavit in reply dated 29 April 2026 together with XPeng’s written submissions in reply. I regard XPeng’s responses in that material as compelling. The first of the two exceptions concerns an amount of $15,030 in fees payable to the original senior counsel who had been briefed by XPeng, but who was unavailable on 30 March 2026 when the interlocutory application was heard. Mr Cash dealt with that matter in his initial affidavit on costs dated 10 April 2026, and appears understandably to have taken the view that nothing more needed to be said in his affidavit in reply. In my view, that was an entirely reasonable disbursement, incurred at a time when the parties did not know the day on which the Court would be able to hear the application. The second of the two exceptions concerns the costs payable to a Chinese law expert, in circumstances where no report from that potential witness was served or relied on for the purposes of this interlocutory injunction application. The amount in question is $6,620, and I regard it as appropriate to deduct that amount from the lump sum costs order sought by XPeng.

5    Accordingly, the appropriate amount of the lump sum costs order is $341,567.19.

Associate:

Dated:    30 April 2026