Federal Court of Australia

True EV Distribution Pty Ltd v Shenzhen Xiaopeng Motors Supply Chain Management Co Ltd (Security for Costs) [2026] FCA 541

ORDERS

THE COURT ORDERS THAT:

Security for costs

1.    The applicants pay $1,256,860 into court as security for the costs of this proceeding of the respondents (the Security).

2.    The Security be paid by the applicants into court by way of two tranches:

(a)    $628,430 by 31 May 2026; and

(b)    $628,430 by 31 July 2026.

3.    If the applicants default in making payment of either of the two tranches of the Security, referred to in paragraph 2 of these orders, the proceeding be stayed until such default is rectified.

4.    The respondents have leave to file an interlocutory application seeking dismissal of the proceedings in that event.

5.    The respondents’ costs of the interlocutory application dated 27 April 2026 be paid by the applicants.

Concise Statement, Response and Reply

6.    The applicants be granted leave to amend their concise statement.

7.    The applicants file and serve their amended concise statement by 11 May 2026.

8.    The respondents file and serve their concise statement in response to the applicants’ concise statement by 4.00pm on 1 June 2026.

9.    The applicants file and serve any reply to the respondents’ concise statement in response by 4.00pm on 26 June 2026.

Evidence

10.    The applicants file and serve all further lay and expert affidavits upon which they intend to rely at the trial of the proceeding by 4.00pm on 10 July 2026.

11.    The respondents file and serve any further lay and expert affidavits upon which they intend to rely at the trial of the proceeding by 4.00pm on 28 August 2026.

12.    The applicants file and serve any lay affidavits in reply to the respondents’ affidavits by 4.00pm on 14 September 2026.

13.    Each party deliver to the other party a copy of each document exhibited to any affidavit filed and served by them in accordance with paragraphs 10-12 of these orders in accordance with the document management protocol agreed between them on 13 March 2026 within 7 days of the filing and service of that affidavit.

14.    On or before 18 September 2026:

(a)    the respondents give notice to the applicants by way of a schedule of objections identifying any parts of the applicants' evidence to which they intend to object, with a brief statement identifying in each case the reason for objection and any statutory provision or authority relied upon;

(b)    the applicants give notice to the respondents by way of a schedule of objections identifying any parts of the respondents' evidence to which they intend to object, with a brief statement identifying in each case the reason for objection and any statutory provision or authority relied upon; and

(c)    the parties give notice identifying which of the other parties’ witnesses will be required to be present at trial for cross-examination.

15.    The parties, by their respective counsel, confer in relation to the respective schedules of objections and endeavour to resolve, or at least narrow, those objections and, on or before 1 October 2026, file and serve a document reflecting any resolutions reached and identifying which objections still require a ruling.

16.    Subject to any order of the trial judge, the affidavits served in accordance with this order stand as the evidence in chief of the respective witnesses at trial.

Discovery

17.    By 12 June 2026, the parties confer and seek to agree on categories of documents for discovery.

18.    The parties each provide discovery in accordance with such categories as have been agreed by 7 August 2026.

19.    Any application by a party for an order for discovery other than in respect of such categories as have been agreed is to be filed and served by 19 June 2026.

Court book and submissions

20.    On or before 14 September 2026, the applicants provide the respondents with a draft index of the court book for comment and any required changes.

21.    The applicants serve and deliver to the chambers of the trial judge by 4.00pm on 25 September 2026:

(a)    a hard copy of the agreed court book and a copy in electronic form;

(b)    a written outline of their opening submissions (limited to 20 pages);

(c)    a list of the authorities upon which they intend to rely.

22.    The respondents serve and deliver to the chambers of the trial judge by 4.00pm on 2 October 2026:

(a)    a written outline of their opening submissions (limited to 20 pages);

(b)    a list of the authorities upon which they intend to rely.

Other

23.    Liberty to apply.

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

REASONS FOR JUDGMENT

Delivered ex tempore, Revised from transcript

JACKMAN J:

1    The background to these proceedings is set out in my judgment in relation to the interlocutory application which I heard and decided on 30 March 2026: True EV Distribution Pty Ltd v Shenzhen Xiaopeng Motors Supply Chain Management Co Limited [2026] FCA 380. The respondents (collectively XPeng) seek an order for security for costs from the applicants (collectively True EV) pursuant to s 1335 of the Corporations Act 2001 (Cth). True EV accepts that the ground referred to in s 1335 is established and that an order for security for costs should be made.

2    The first issue concerns the amount of security for costs. XPeng seeks an order in the amount of $1,256,860 (excluding the costs of the interlocutory application heard on 30 March 2026 which I dealt with in True EV Distribution Pty Ltd v Shenzhen Xiaopeng Motors Supply Chain Management Co Ltd (Interlocutory Costs) [2026] FCA 534). True EV submits that the appropriate order is in the amount of $1,075,568.

3    XPeng relies on evidence of their solicitor, Mr Cash, who provides cogent reasons in support of his estimate. That evidence is criticised by True EV in a number of respects, based on evidence by their solicitor, Mr Temby. It may well be that some or all of Mr Temby’s criticisms will ultimately prevail on a costs assessment, but in my view it is too early to decide those issues. In my view, Mr Cash’s estimate falls within a reasonable range of a likely costs order in the event that XPeng is successful in the proceedings, and the order should be made in the amount of $1,256,860.

4    The second issue is whether an order should be made now for dismissal of the proceedings in the event that security is not provided by the ordered date. In my view, it should not be. It is a serious matter to terminate proceedings without a hearing on the merits. If security is not provided in accordance with the Court’s orders, True EV should have an opportunity to explain any non-compliance, and any application for dismissal should be made by way of formal application.

5    The third issue is whether payment should be made in tranches. That is the usual course. Mr Temby’s evidence is that True EV will need until at least 31 May 2026 to provide any security ordered by the Court. I have fixed the matter for hearing for up to three weeks commencing on 6 October 2026. In light of the relatively early final hearing, the timetable for pre-trial preparation will be more compressed than usual. In my view, the appropriate order is that security be provided in two tranches, with the first tranche by 31 May 2026, and the second tranche to be paid by the approximate midpoint between then and the commencement of the trial. That is:

(a)    50% of the amount, being $628,430, should be paid by 31 May 2026; and

(b)    the balance should be paid by 31 July 2026.

6    XPeng seeks an order for costs of the interlocutory application seeking security for costs. True EV did not concede XPeng’s entitlement to security for costs until sending its written submissions, which are dated today but were apparently served last night. Accordingly, it was necessary for XPeng to prepare this application on all issues. In light of True EV’s concession as to XPeng’s entitlement to an order, the main dispute concerned the amount of the order, and that issue has been resolved in XPeng’s favour. The other issues, concerning a prospective order for dismissal if security was not provided and concerning tranches by which security should be provided, were relatively minor in terms of the costs incurred.

7    XPeng submits, and I accept, that it does not matter what happens at the final hearing because this was a discrete application carrying its own costs burden that could have been avoided had the applicants acted reasonably at an earlier stage by conceding both the entitlement and the amount of security. In the circumstances, it is appropriate to order that True EV pay XPeng’s costs of the interlocutory application dated 27 April 2026.

Associate:

Dated: 30 April 2026