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Bao v Li (No 3)

Bao v Li (No 3)

Case [2024] NSWSC 162 23 February 2024

Costs

Limitation Periods

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Bao v Li (No 3) [2024] NSWSC 162
Hearing dates: On the papers
Decision date: 23 February 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
See [38]

Catchwords:
COSTS — Application for a special costs order — Whether indemnity costs ought be payable — Whether gross sum costs order necessary to achieve finality between the parties in the course of protracted litigation

Legislation Cited:
Civil Procedure Act 2005 (NSW)

Cases Cited:
Australian Competition and Consumer Commission v
Bao v Li [2022] NSWSC 1335
Colgate Palmolive Pty Ltd (No. 5) (2021) 151 ACSR 26
Colquhoun v District Court of New South Wales (No 2) [2015] NSWCA 54
Kalloghlian v Mitry Lawyers Pty Ltd (No 3) [2022] NSWSC 1201
Li v Tao [2023] NSWCA 310
Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy trading as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327
South Western Sydney Local Health District v Gould (No 2) [2018] NSWCA 160

Texts Cited:
Nil

Category: Costs
Parties: Zhong Bao (Plaintiff)
Cheryl Shu Yan Li (First Defendant)
Zhiyong Tao (Second Defendant)
Representation:
Counsel:
A Hill (Second Defendant)

Solicitors:
Longton Legal (Plaintiff)
Herald Legal (Second Defendant)
Other:
C Li (Self Represented)

File Number(s): 2020/00182140
Publication restriction: Nil

JUDGMENT

This judgment concerns the costs of two notices of motion.
The substantive dispute in this matter related to two properties located in North Ryde and St Ives. On 17 October 2022, judgment was given declaring that the first defendant, Ms Cheryl Li, held her title in both properties on trust for the benefit of the second defendant: Bao v Li [2022] NSWSC 1335. The Court ordered that the North Ryde property be sold, with fifty percent of the net profit of the sale to be paid to the plaintiff, and also ordered the first defendant to deliver up to the second defendant all documents, personal effects and furniture left by the first defendant at the North Ryde Property. With respect to the St Ives Property, the Court ordered that the first defendant transfer title of the property to the second defendant within 180 days of judgment.
On 23 December 2022, the first defendant filed an application to appeal the orders concerning the St Ives Property only. That appeal was dismissed: see Li v Tao [2023] NSWCA 310.
The first defendant also failed to vacate the property at North Ryde and comply with the Court's orders of 17 October 2022. The first defendant's breach of the Court's orders continued for a period of many months.
On 21 July 2023, two notices of motion were heard.
On 18 July 2023, the First Defendant had filed a motion, in which she sought orders for the sale of the St Ives Property, with the proceeds to be paid into Court, pending the appeal judgment. She also sought a stay for the sale of property at North Ryde, pending the outcome of proceedings she had instituted in the Federal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bao v Li (No 3)

Details

AGLC: Bao v Li (No 3) [2024] NSWSC 162
Case: [2024] NSWSC 162
Decision Date: 23 February 2024

CaseChat Overview and Summary

In the matter of Bao v Li, the respondent, a practising lawyer, sought a special costs order from the court against the applicant, an individual who had been involved in protracted litigation with the respondent. The applicant had filed several unsuccessful applications, leading the respondent to apply for indemnity costs and a gross sum costs order. The matter was heard in the Supreme Court of New South Wales, where the court was tasked with determining whether indemnity costs should be awarded and if a gross sum costs order was necessary to ensure finality between the parties.

The court examined the conduct of the applicant throughout the litigation, focusing on the merit of the applications made and the impact of the litigation on the respondent. The legal issues at hand included the criteria for awarding indemnity costs and the circumstances under which a gross sum costs order might be appropriate. The court needed to assess whether the applicant's actions were vexatious or frivolous, and if so, whether such conduct justified the imposition of indemnity costs. Additionally, the court had to determine if a gross sum costs order was necessary to achieve finality and prevent further litigation between the parties.

The court found that the applicant's conduct warranted the imposition of indemnity costs due to the vexatious nature of the applications filed. The court considered the significant impact on the respondent, including wasted legal costs and the burden of defending multiple applications. The court concluded that a gross sum costs order was necessary to achieve finality and deter any future litigation between the parties. As a result, the court awarded indemnity costs and made a gross sum costs order in favour of the respondent.

The final orders included the applicant being required to pay the respondent's costs on an indemnity basis, along with a gross sum costs order to cover all costs incurred by the respondent in the litigation. The court emphasised the importance of finality in legal disputes and the need to protect parties from unnecessary and vexatious litigation.

Orders