Sebastian Hughes represented the successful defendant in Yao-Hua Kang v Joe-Hsiang Lin (HCA1926/2020, 18 November 2022), a first instance appeal before Deputy High Court Judge Le Pichon. Madam Justice Le Pichon confirmed the test as to whether a plaintiff ought to pay the defendant’s costs of a withdrawn summary judgment application is “whether the plaintiff knew or ought to have known the defendant had a credible defence” at the time of the application. Noting that the relevant loan agreement relied upon by the plaintiff “appears to bristle with difficulties of construction”, the learned Judge held there were triable issues in respect of (a) whether the notice of event of default issued by the plaintiff had the effect of terminating the agreement; (b) whether the agreement was a loan agreement or an agreement for the plaintiff to be granted equity in the fund managed by the defendant; (c) whether the plaintiff had suffered any loss as a result of the defendant’s breach of the agreement; and (d) (citing White & Carter (Councils) Limited v McGregor [1962] AC 413) whether the plaintiff had any legitimate interest in seeking, by way of specific performance, certificates of incumbency in respect of the other investors in the fund. The Judge also noted that the plaintiff had seen fit to issue her summary judgment application without responding to the letter from the defendant’s solicitors setting out each of the above triable issues, and “setting out reasons why the plaintiff’s claim will fail”. Her Ladyship overturned the order of the Master below that the costs of the withdrawn application be in the cause, and ordered the plaintiff to pay the defendant’s costs of the summary judgment application, including the costs of the hearing below and of the appeal.