Federal Court of Australia

True EV Distribution Pty Ltd v Shenzhen Xiaopeng Motors Supply Chain Management Co Ltd (No 5) [2026] FCA 1453

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to Order 1 made on 12 August 2026, the amount of the lump sum costs order to be paid by the applicants to the respondents is $202,372.46.

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

REASONS FOR JUDGMENT

JACKMAN J:

1    The applicants’ claim in these proceedings was dismissed for failure to provide security for costs: True EV Distribution Pty Ltd v Shenzhen Xiaopeng Motors Supply Chain Management Co Ltd (No 4) [2026] FCA 1200 at [1]–[3]. On that occasion, I ordered a timetable for the filing and service of affidavits and written submissions in relation to the assessment of the lump sum order for costs in favour of the respondents. The respondents duly filed an affidavit of Mr Peter Cash on 10 September 2026, together with written submissions. The respondents submit that it is logical, fair and reasonable for the Court to make a lump sum costs order in the amount of $202,372.46. That amount excludes the lump sum costs order made on 30 April 2026 in relation to the interlocutory application which I heard and decided on 30 March 2026, that order being in favour of the respondents in the amount of $341,567.19.

2    The affidavit of Mr Cash provides a detailed summary of the respondents’ costs, prepared in accordance with the requirements for a costs summary under the Costs Practice Note. Although the evidence was not prepared with the assistance of a costs consultant, I do not regard that as material in light of Mr Cash’s 40 years of experience, predominantly in commercial litigation. Mr Cash’s affidavit sets out the respondents’ costs actually incurred, organised into seven categories of work, consistently with the Court’s guidance as to appropriate categories. The affidavit summarises the personnel who undertook that work, including their respective hourly rates, total hours worked, and an estimate of the proportion of the total amount claimed attributable to each person. The affidavit also provides a summary of disbursements, including counsel’s fees. Mr Cash has adjusted the indicative costs for solicitors by reference to the applicable scale amounts.

3    I am satisfied that the scope of work undertaken by the respondents was not unreasonable or disproportionate. Since 30 March 2026, when the applicants’ interlocutory application was dismissed, there have been five separate hearings, four of which concerned (at least in part) the applicants’ delay or failure to pay security for costs pursuant to the order made on 30 April 2026. The respondents were required to prepare for the scheduled 3-week hearing due to have commenced on 6 October 2026. That preparatory work included preparing a concise statement in response, undertaking discovery (including the exchange of proposed categories), reviewing and responding to the applicants’ proposed further amended concise statement, and general pre-trial preparation. The work undertaken by the respondents was thus proportionate to the nature and requirements of the proceeding.

4    I note that the respondents have allowed a further discount of 10% against its scale costs (excluding disbursements), resulting in an amount of $155,418.58. I regard that discount as appropriate. On the whole, I am satisfied that the amount claimed by way of lump sum costs order broadly reflects the amount which is likely to have been awarded if a formal assessment of party-party costs had been undertaken.

5    I note that the applicants have not filed any affidavits or written submissions in relation to the assessment of the lump sum costs order. Any affidavits and written submissions by the applicants were due by 24 September 2026. I have allowed a further week to go by to see if any affidavits or written submissions would be filed late by the applicants, and my associate has enquired as to whether the applicants intend to file any material on the question. The applicants replied today by email from their solicitors that they do not intend to file any submissions in relation to costs.

6    In all the circumstances, I accept the quantification of the lump sum costs order proposed by the respondents.

Associate:

Dated:    2 October 2026