BCEG International (Australia) Pty Ltd v Yu Xiao

[2024] NSWSC 922

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

BCEG International (Australia) Pty Ltd v Yu Xiao [2024] NSWSC 922

Hearing dates:

10 July 2024

Date of orders:

30 July 2024

Decision date:

30 July 2024

Jurisdiction:

Equity - Commercial List

Before:

McGrath J

Decision:

Defendants to pay the plaintiff’s costs as a gross sum (see [179])

Catchwords:

COSTS – application by plaintiff for gross sum costs orders in main proceedings, contempt proceedings and application – main proceedings long running and involve serious and complex allegations of fraud – numerous costs orders on ordinary and indemnity basis – detailed evidence of costs and reductions – gross sum costs order in contempt proceedings conceded by defendants – whether plaintiff is entitled to costs before commencement of main proceedings – no discount to be applied for gross sum costs in main proceedings but discount applied for gross sum costs for application – HELD – gross sum costs orders awarded

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 98, 101

Legal Profession Uniform Law 2014 (NSW)

Cases Cited:

Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39

Baychek v Baychek [2010] NSWSC 987

BCEG Australia v Xiao [2020] NSWSC 1234

BCEG Australia v Xiao (No 2) [2020] NSWSC 1403

BCEG International (Australia) Pty Ltd v Xiao [2021] NSWSC 1027

BCEG International (Australia) Pty Ltd v Xiao [2021] NSWSC 1545

BCEG International (Australia) Pty Ltd v Xiao (2022) 162 ACSR 601; [2022] NSWSC 972

BCEG International (Australia) Pty Ltd v Xiao [2022] NSWSC 972

BCEG International (Australia) Pty Ltd v Xiao [2023] NSWSC 6

BCEG International (Australia) Pty Ltd v Xiao [2023] NSWSC 57

BCEG International (Australia) Pty Ltd v Xiao (No 2) [2022] NSWSC 1102

BCEG International (Australia) Pty Ltd v Xiao (No 3) [2022] NSWSC 1221

BCEG International (Australia) Pty Ltd v Xiao (No 3) [2023] NSWSC 554

Hamod v State of New South Wales [2011] NSWCA 375

Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640

Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213

Huang v Wei (No 4) [2023] NSWSC 164

Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121

Wallis v Rudek [2020] NSWSC 1618

Xiao v BCEG International (Australia) Pty Ltd (2023) 111 NSWLR 132; [2023] NSWCA 48

Xiao v BCEG International (Australia) Pty Ltd (No 2) [2023] NSWCA 87

Category:

Costs

Parties:

BCEG International (Australia) Pty Ltd (Plaintiff/ Applicant)
Yu Xiao (First Defendant/Respondent)
Yan Ying Chen (Second Defendant/Respondent)

Representation:

Counsel:
D Williams SC and N Riordan (Plaintiff/Applicant)
B Le Plastrier and S Steinhoff (First and Second Defendants/Respondents)

Solicitors:
Thomson Greer (Plaintiff/Applicant)
HWL Ebsworth (First and Second Defendants/ Respondents)

File Number(s):

2019/00310768

Publication restriction:

Nil

JUDGMENT

INTRODUCTION

1. The plaintiff, BCEG International (Australia) Pty Ltd (BCEG Australia), brings this application for gross sum costs orders arising from various cost orders which have been made in BCEG’s favour in these long running, complex and hard-fought proceedings.

2. On 4 October 2019, BCEG Australia commenced these proceedings (Main Proceedings) against the following defendants (collectively the defendants):

1. the first defendant, Yu Xiao;

2. the second defendant, Yan Ying Chen;

3. the third defendant, Interlink Laboratory Pty Ltd (in liquidation) (ILP);

4. the fourth defendant, Interlink Wagga Central Pty Ltd (IWC); and

5. the fifth defendant, West Wyalong Marketplace Pty Ltd (in liquidation) (WWMP).

3. Mr Xiao and Ms Chen are both former directors of BCEG and are husband and wife.

4. On 15 September 2022, BCEG Australia made an application in the Main Proceedings for contempt against Mr Xiao, Ms Chen, IWC and WWMP (Contempt Proceedings).

5. Arising from multiple costs orders which were made in the Main Proceedings and the Contempt Proceedings, BCEG Australia seeks gross sum costs orders against Mr Xiao and Ms Chen, including in relation to this application.

6. The gross sum costs orders are not pursued against ILP or WWMP because they have both been placed in liquidation. The gross sum costs orders are also not sought against IWC because no costs orders were made in favour of BCEG Australia against IWC arising from an appeal, a matter set out in more detail below.

7. At the hearing Mr Xiao and Ms Chen faintly contested BCEG Australia’s entitlement to gross sum costs orders in the Main Proceedings, the Contempt Proceedings and this application. The real contest between them was in relation to specific issues in the calculation of those gross sums. Although there is significant complexity and detail in the underlying facts, the issues in dispute are relatively confined.

RELEVANT FACTS

BCEG Australia and BCEG China

8. BCEG Australia is part of a group of companies which undertake construction and engineering projects. BCEG International Co Ltd and BCEG International Investment Co Ltd (BCEG China) are entities belonging to this group. BCEG China is the parent company of BCEG Australia.

Engagement of Thomson Geer

9. In May 2018, the law firm Thomson Geer was retained to provide advice in relation to, and investigate, the matters which were ultimately the subject of the Main Proceedings.

10. On 16 May 2018, Thomson Geer sent a letter of engagement addressed to BCEG China (May 2018 Engagement Letter). The May 2018 Engagement Letter defined BCEG China as “BCEG” and provided, among other things, the following:

1. General background (section 2.1):

We note that BCEG entered into arrangements with a local Australian property developer in relation to the development, finance and construction of two Australian projects – a private hospital at Varsity Lakes, Queensland and a residential project at Wagga Wagga, in regional New South Wales.

2. Scope of work, setting out the work undertaken to date and current instructions (section 3).

3. Thomson Geer’s professional costs, including the basis for charging, fee estimates and disbursements (section 4).

4. The incorporation of Thomson Geer’s Terms of Engagement, which were attached to the letter of engagement (section 6).

11. Section 7 of the May 2018 Engagement Letter is titled “Acceptance” and states:

This proposal is an offer to enter into a costs agreement comprising this letter and the attached Terms of Engagement. This letter overrides the attached Terms of Engagement to the extent of any inconsistency.

BCEG may accept this offer in writing or is deemed to have accepted it by continuing to instruct us after the date of this letter.

The Terms of Engagement will also apply to all future matters we undertake for the client and any associated entities, unless we agree otherwise in writing.

12. The Terms of Engagement contain the following provision:

The client described below acknowledges receipt of these Terms of Engagement and the accompanying letter or email and agrees to be bound by the terms of each costs agreement made with you, that will comprise these Terms of Engagement and the provisions of letters and emails that set out the legal services we agree to provide to you for each Legal Project.

13. Underneath this text there is provision for the “client’s full name” to be written. In the Terms of Engagement, the “client’s full name” is handwritten as BCEG Australia, together with the signature of Ms Wenjing Dong as director. The signature of Ms Dong also appears on each page of the May 2018 Engagement Letter.

Pre-commencement work by Thomson Geer

14. From May 2018 to October 2019, Thomson Geer undertook investigation work pursuant to the May 2018 Engagement Letter which included interviewing potential witnesses and engaging a forensic accounting expert to examine accounting and financial records. This work was instrumental in identifying relevant legal issues, gathering essential evidence and formulating a comprehensive legal strategy in relation to proceedings proposed to be commenced.

15. From May 2018 to September 2019, Thomson Geer issued invoices addressed to BCEG China for professional fees of $209,000 (excl GST) and disbursements of $37,756.12 (excl GST) for this investigation work.

Commencement of the Main Proceedings and engagement of Thomson Geer

16. On 4 October 2019, BCEG Australia commenced the Main Proceedings in the Commercial List by way of summons and commercial list statement.

17. On 20 December 2019, Eugene Fung (a partner of Thomson Geer) sent an email to BCEG Australia attaching their letter of engagement dated 19 December 2019 (December 2019 Engagement Letter) addressed to BCEG Australia, stating as follows:

Dear Mr Gao

As the BCEG entity engaging Thomson Geer is now BCEG Australia we need to provide a new engagement letter – please see attached.

In the engagement letter, we have confirmed that the cost guidance in our Litigation Plan (subject to the additional work stream relating to the client’s claim for self-incrimination privilege).

…

18. The December 2019 Engagement Letter set out the scope of the legal services to be provided by Thomson Geer to BCEG Australia in the Main Proceedings, identified the lawyers at Thomson Geer who would perform the work, attached Terms of Engagement and provided cost guidance to BCEG Australia.

19. As in the case of the May 2018 Engagement Letter, there is provision for the “client’s full name” to be written at the end of the Terms of Engagement attached to the December 2019 Engagement Letter. In the Terms of Engagement, the “client’s full name” is handwritten as BCEG Australia, together with the signature of Ms Dong as director. The signature of Ms Dong also appears on each page of the December 2019 Engagement Letter.

Nature of the claims made and found in the Main Proceedings

20. The commercial list statement commencing the Main Proceedings comprised 519 paragraphs across 93 pages.

21. The primary claim pursued by BCEG Australia at trial was that Mr Xiao and Ms Chen, in breach of their fiduciary duties as directors of BCEG Australia, caused BCEG Australia to submit inflated drawdown requests under a facility which it had in place with BCEG China to fund a legitimate property development project, known as the Varsity Lakes Project. To support the inflated drawdown requests, it was alleged that Mr Xiao and Ms Chen created sham subcontracts which conveyed the false impression that the costs BCEG Australia would incur in connection with that project were far greater than in truth.

22. It was further alleged that using the surplus funds BCEG Australia received from BCEG China in the form of the inflated drawdown requests, Mr Xiao and Ms Chen applied those monies towards project expenses they had incurred on an unrelated project in which BCEG Australia had no interest, being the West Wyalong Project. The West Wyalong Project involved the acquisition of land through WWMP and the construction of a shopping centre on that land. As a result, BCEG Australia (through its borrowings from BCEG China) funded the construction costs of Mr Xiao and Ms Chen’s private venture.

23. Mr Xiao and Ms Chen were the subject of serious fraud findings in the judgment delivered on 22 July 2022 by Rees J following the trial in the Main Proceedings (Primary Judgment). These fraud findings in the Primary Judgment were unchallenged on appeal.

24. In the Primary Judgment, Mr Xiao and Ms Chen were ordered to pay equitable compensation on account of the breaches of their fiduciary duties owed to BCEG Australia and WWMP (a company that was ultimately owned and controlled by Mr Xiao and Ms Chen) was ordered to account to BCEG Australia for its profits of the West Wyalong Project as a knowing recipient.

25. Over the course of the Main Proceedings, BCEG Australia discovered that other monies held in BCEG Australia’s bank accounts had been misappropriated by Mr Xiao and Ms Chen, including amounts that they caused to be transferred to an offshore entity in which Mr Xiao had an interest, Beijing Dragon International Design & Construction Co Ltd. In the Primary Judgment these transfers were found to have been fraudulent transactions implemented by Mr Xiao and Ms Chen.

26. Another claim BCEG Australia pursued at trial concerned a property development in Wagga Wagga (Wagga Project). This project involved BCEG Australia funding a construction project carried out by IWC, another company owned by Mr Xiao and Ms Chen. BCEG Australia’s case was that, if it had known of the fraud that Mr Xiao and Ms Chen had perpetrated upon it in connection with the West Wyalong Project, it would never have committed itself to the Wagga Project contracts. BCEG Australia sought to recover the amounts it paid in furtherance of the Wagga Project. BCEG Australia succeeded on this claim at first instance but that outcome was reversed on appeal, as outlined below.

Progress to trial of the Main Proceedings

27. On 25 November 2019, the defendants indicated that Mr Xiao and Ms Chen intended to claim privileges against self-incrimination and self-exposure to penalties.

28. On 20 December 2019, the defendants filed and served their commercial list response within which the privileges against self-incrimination and self-exposure to civil penalties were invoked. The commercial list response comprised 192 paragraphs across 36 pages.

29. On 18 February 2020, BCEG Australia filed a motion to strike out the commercial list response on the grounds that it did not properly raise or plead the existence and basis for the privileges (Strike Out Application).

30. On 6 August 2020, the Strike Out Application was heard by Stevenson J. During the course of the hearing of the Strike Out Application, the defendants’ senior counsel conceded that the defendants should amend their commercial list response.

31. On 10 September 2020, Stevenson J delivered judgment in respect of the costs of the Strike Out Application: BCEG Australia v Xiao [2020] NSWSC 1234. In that judgment, Stevenson J ordered that the defendants pay BCEG Australia’s costs thrown away by reason of the amendment of the commercial list response and that the costs of the Strike Out Application be BCEG Australia’s costs in the cause.

32. On 27 August 2020, the defendants filed the amended commercial list response in which the claim for privileges was maintained.

33. On 7 September 2020, BCEG Australia caused the issuing of subpoenas to Commonwealth Bank of Australia (CBA) and Richard Stone of RSM Australia, the liquidator of two companies controlled by Mr Xiao and Ms Chen who were the builders on the Varsity Lakes Project and the Wagga Project.

34. On 10 September 2020, the defendants filed a motion seeking that the subpoena issued to CBA be set aside (Subpoena Application).

35. On 13 October 2020, Stevenson J dismissed the Subpoena Application with costs: BCEG Australia v Xiao (No 2) [2020] NSWSC 1403.

36. In November 2020, BCEG Australia served evidence in chief consisting of 13 affidavits, three outlines of evidence, an expert report and a preliminary tender bundle of 380 items.

37. On 30 November 2020, Stevenson J made directions which noted that BCEG Australia would proceed to trial on its case in chief, and set the matter down for trial for 10 days commencing on 15 November 2021.

38. In February 2021, the parties conducted an unsuccessful mediation before Robert McDougall KC.

39. On 28 June 2021, the defendants filed a motion seeking security for costs against BCEG Australia (Security Application).

40. On 5 July 2021, BCEG Australia filed a motion seeking, inter alia, an order granting leave for BCEG Australia to amend its summons and commercial list statement, asset preservation orders and for leave to rely on evidence given by video link (Amendment Application). The proposed amendments concerned a new fraud claim relating to transactions made by Mr Xiao and Ms Chen without BCEG Australia’s informed consent or authority.

41. The Security Application and the Amendment Application were heard together by Williams J. Additional submissions were then made on 27 and 30 July 2021 and 4 and 5 August 2021.

42. On 16 August 2021, Williams J delivered judgment in respect of the Security Application and the Amendment Application: BCEG International (Australia) Pty Ltd v Xiao [2021] NSWSC 1027. In that judgment, Williams J found that there was a strong prima facie case of fraud and ordered that each party bear their own costs in relation to the Security Application and the Amendment Application.

43. On 23 August 2021, BCEG Australia filed an amended commercial list statement incorporating the pursuit of the new fraud claim against Mr Xiao and Ms Chen, an alternative claim by way of accounts stated and amendments to its claims for damages for breach of contract.

44. On 8 September 2021, the defendants filed an amended commercial list response which maintained the claim for privileges against self-incrimination and self-exposure to penalties.

45. In early October 2021, BCEG Australia served three further affidavits.

46. On 12 October 2021, BCEG Australia served a Court Book on the defendants. The Court Book was extensive, with 585 items comprising over 21,000 pages. This was due to the defendants’ claim for privileges and the forensic decision to put BCEG Australia to proof on all issues.

47. In the period from November 2019 to November 2021, the defendants invoked the privileges against self-incrimination and self-exposure to penalties.

48. On 2 November 2021, the defendants served a motion seeking, inter alia, that the hearing of BCEG Australia’s case in chief fixed for 15 November 2021 be vacated and that a Sabre order be made in relation to documents said to be in the possession of BCEG China. Ultimately, the defendants did not pursue a Sabre order.

49. On 3 November 2021, a directions hearing was held before Stevenson J at which time the defendants informed the court of their decision to abandon the claims for privileges against self-incrimination and self-exposure to penalties and of their intention to raise positive defences to BCEG Australia’s claims. This led to the vacating of the trial date of 15 November 2021 and to directions being made regarding the service of an amended commercial list response, service of lay and expert evidence and the provision of general discovery and an allocation of a new trial date in April 2022 with a revised estimate.

50. On 30 November 2021, Stevenson J made orders requiring the defendants to pay BCEG Australia’s costs thrown away by the vacation of the hearing: BCEG International (Australia) Pty Ltd v Xiao [2021] NSWSC 1545.

51. On 3 December 2021, the defendants served an amended commercial list response.

52. On 24 December 2021, the defendants served three affidavits and an expert report.

53. On 25 January 2022, the defendants served an affidavit of Mr Xiao which was 32 days late, 37 pages long and had documents exhibited comprising 855 pages. The affidavit referred to about 20 alleged oral conversations with multiple persons across a 10-year period. There were no translations of the foreign language documents contained in the exhibit.

54. On 2 February 2022, the defendants served their discovered documents comprising about 285,320 documents, which were 40 days late. BCEG Australia had to engage the services of a third-party document management provider to assist with the document management.

55. In March 2022, BCEG Australia served evidence in reply comprising five affidavits and an outline of evidence. BCEG Australia also served four affidavits from foreign language translators to translate a number of documents contained in the defendants’ discovery and the evidence in reply.

56. Following BCEG Australia attending to the completion of its reply evidence, the final version of the Court Book numbered approximately 23,000 pages and comprised 28 volumes.

57. On 4 April 2022, BCEG Australia filed a further amended commercial list statement.

The trial and issues whilst judgment reserved

58. Between 4 April 2022 and 22 April 2022, the trial of the Main Proceedings took place before Rees J. The trial involved 18 witnesses for BCEG Australia (including five witnesses who appeared by video-link and four witnesses requiring the assistance of foreign language interpreters, only six of whom were cross-examined), and five witnesses for the defendants (only three of whom were cross-examined).

58. During the trial, BCEG sought asset preservation orders against the defendants which resulted in the defendants giving various undertakings to this court, including on 28 April 2022.

59. On 28 April 2022, Mr Xiao, Ms Chen, WWMP and other related entities provided an undertaking to this court that they would not, without first giving BCEG Australia seven days' written notice, dispose of, deal with or diminish the value of their assets up to a certain unencumbered value.

60. The undertakings made on 28 April 2022 were made following revelations during the cross-examination of Mr Xiao that he had been signing mortgages over the real property assets of his companies mid-trial during the lunch adjournment.

61. The undertakings made on 28 April 2022 were breached by Mr Xiao and WWMP engaging in a security swap transaction and Mr Xiao and Ms Chen dispersing monies from a bank account.

62. The Main Proceedings were re-listed for a further freezing order on 8 June 2022, whilst judgment of Rees J was reserved, when it appeared that Mr Xiao had encumbered his assets notwithstanding the order made by consent following BCEG’s urgent application during the hearing. The defendants were required, amongst other things, to provide certain information about their assets and financial positions, including the details of all of the assets in Australia of Mr Xiao and Ms Chen and the net financial position of each of the corporate defendants.

63. Ultimately, Mr Xiao, Ms Chen, IWC and WWMP breached the orders made by this court on 8 June 2022 by failing to provide certain information concerning the financial positions of the defendants.

Primary Judgment and Costs Judgment in the Main Proceedings

65. On 22 July 2022, Rees J delivered the Primary Judgment in BCEG's favour, including an order for costs on a standard basis: BCEG International (Australia) Pty Ltd v Xiao (2022) 162 ACSR 601; [2022] NSWSC 972. Each of the defendants was ordered to pay substantial amounts and/or account for profits.

66. On 17 August 2022, Rees J varied the monetary amount of the Primary Judgment: BCEG International (Australia) Pty Ltd v Xiao (No 2) [2022] NSWSC 1102.

67. On 12 September 2022, Rees J gave judgment on the application BCEG Australia had brought following the Primary Judgment to vary the costs order made in its favour: BCEG International (Australia) Pty Ltd v Xiao (No 3) [2022] NSWSC 1221 (Costs Judgment). In the Costs Judgment, Rees J ordered:

[P]ursuant to section 98(1)(c) of the Civil Procedure Act 2005 (NSW), the defendants to pay the plaintiff’s costs of the proceedings:

(a)   on a party and party basis up to and including 31 August 2020; and

(b)   on an indemnity basis from 1 September 2020 on.

68. In the Costs Judgment, Rees J made findings, including the following:

1. The procedural history of this matter was laborious, taking two and a half years to reach trial which was an unusual delay in the Commercial List (Costs Judgment at [52]).

2. The proceedings were unnecessarily difficult and protracted as a consequence of the manner in which the defendants conducted their defence, being generally with a view to delaying and disrupting the timely progression of BCEG Australia’s case to trial (Costs Judgment at [52]).

3. The blanket claim for privileges against self-incrimination and exposure to penalties delayed the progress of the proceedings for some eight months until the defendants amended their defence. The assertion of these privileges had consequences for BCEG Australia’s preparation of its case and, likely, the cost of doing so (Costs Judgment at [53]);

4. BCEG Australia had to prepare its case on the basis it would be put to proof on every issue, in circumstances where the business records that were available to it were of dubious reliability (Costs Judgment at [53]);

5. The defendants opposed subpoenas issued by BCEG Australia in an apparent effort to restrict BCEG Australia’s ability to assemble a case in chief (Costs Judgment at [54]);

6. The defendants pleaded a detailed and false defence and BCEG Australia was put to the considerable cost of dealing with the substantive matters raised in it, in circumstances where the defendants knew that their defence was false (Costs Judgment at [59]); and

7. On the seventh day of hearing, BCEG Australia was required to make an urgent application for freezing orders when it became apparent during the course of Mr Xiao's cross-examination that, during a lunch adjournment, he was executing documents to encumber his assets. The matter was re-listed for a further freezing order on 8 June 2022, whilst judgment was reserved, when it appeared that Mr Xiao had encumbered his assets notwithstanding the order made by consent following BCEG Australia’s urgent application during the hearing (Costs Judgment at [62]).

Stay, Variation Application and Appeal Proceedings

69. On 2 September 2022, the defendants filed a notice to appeal and appealed certain aspects of the Primary Judgment (Appeal Proceedings). BCEG Australia does not make a claim for costs relating to the Appeal Proceedings as part of this application.

70. On 5 September 2022, the defendants applied for a stay of the Primary Judgment (Stay Application).

71. On 21 September 2022, a stay of certain monetary judgments was granted in favour of the defendants pending the determination of the Appeal Proceedings. The stay was granted on terms relating to the sale of the “Edward Street property” and that BCEG Australia had liberty to restore the matter on 8 December 2022 in the event that no offer to purchase the Edward Street property was received.

72. In December 2022, the sale of the Edward Street property did not eventuate and BCEG Australia relisted the Main Proceedings seeking to lift the stay.

73. On 8 December 2022, orders to the following effect were made:

1. vary the stay such that its continuation was subject to the defendants paying the sum of $4,656,160 into court by 4pm on 5 January 2023, failing which the stay is lifted;

2. the defendants to pay the costs of BCEG Australia including the costs associated with the relisting the matter and the affidavits and submissions filed by BCEG Australia in respect of the re-listing;

3. in the event that the defendants failed to comply with the additional condition of the stay, order the defendants to pay the costs of BCEG Australia in relation to the Stay Application; and

4. in the event that the defendants comply with the additional condition of the stay, order that the costs of the Stay Application abide the outcome of the appeal.

74. The defendants failed to comply with the conditions of the stay, and as a result the stay was automatically lifted and BCEG Australia became entitled to the costs of the Stay Application.

75. On 13 January 2023, Mr Xiao and Ms Chen filed a motion to vary one of the asset preservation orders made by Rees J on 21 September 2022 (Variation Application).

76. On 17 January 2023, Meek J heard the Variation Application.

77. On 18 January 2023, Meek J dismissed the Variation Application with costs: BCEG International (Australia) Pty Ltd v Xiao [2023] NSWSC 6.

78. On 6 February 2023, the Court of Appeal heard the appeal by the defendants in the Appeal Proceedings.

79. On 23 March 2023, the Court of Appeal delivered judgment in the Appeal Proceedings, dismissing the appeal except in relation to a causation issue in favour of IWC: Xiao v BCEG International (Australia) Pty Ltd (2023) 111 NSWLR 132; [2023] NSWCA 48. IWC was successful in its appeal of the Primary Judgment in relation to BCEG Australia’s case regarding the Wagga Project.

80. On 4 May 2023, the Court of Appeal delivered judgment in relation to the costs of the Appeal Proceedings, including by varying the Costs Judgment: Xiao v BCEG International (Australia) Pty Ltd (No 2) [2023] NSWCA 87. In that judgment the Court of Appeal made the following orders:

1. BCEG Australia pay 25% of the appellants’ costs of the Appeal Proceedings.

2. Set aside the costs order made by Rees J on 12 September 2022 against IWC by varying order 2 made on 12 September 2022 by inserting the words “first, second, third and fifth” before the word “defendants”.

3. Subject to order 4, make no order for costs at first instance as between BCEG Australia and IWC.

4. BCEG Australia to pay IWC’s costs of the inquiry as to profits.

81. As a result, the Costs Judgment was varied so that Mr Xiao, Ms Chen, ILP and WWMP were liable for BCEG Australia’s costs at first instance. The varied order in the Costs Judgment therefore states:

Pursuant to section 98(1)(c) of the Civil Procedure Act 2005 (NSW), the first, second, third and fifth defendants pay the plaintiff’s costs of the proceedings:

(1)   on a party and party basis up to and including 31 August 2020; and

(2)   on an indemnity basis from 1 September 2020 on.

Contempt Proceedings

82. On 15 September 2022, BCEG filed a notice of motion and a statement of charge for contempt against Mr Xiao, Ms Chen, IWC and WWMP (Contempt Proceedings). The gravamen of the complaints was that several transactions were carried out by the defendants in breach of undertakings they had given to the court shortly after the conclusion of the trial and Mr Xiao failed to adhere to an undertaking he gave to the court in an affidavit he affirmed in compliance with the terms of the freezing order that he would unwind a transaction he had carried out in breach of the earlier undertakings.

83. The Contempt Proceedings were heard by Darke J over two stages: the first as to liability and the second as to penalty. Substantial evidence was provided by BCEG Australia and the Court Book for the liability hearing comprised three volumes totalling 2,679 pages.

84. On 1 February 2023, the liability hearing of the Contempt Proceedings took place before Darke J.

85. On 8 February 2023, Darke J held that BCEG Australia had made out a total of nine charges of contempt against Mr Xiao (four charges), Ms Chen (two charges), IWC (one charge) and WWMP (two charges): BCEG International (Australia) Pty Ltd v Xiao [2023] NSWSC 57 at [63].

86. In the period from 21 March 2023 to 12 May 2023, seven directions hearings were required to deal with the attempts made by the defendants to obtain finance to purge their contempt. The penalty hearing was vacated at their request to allow this to occur.

87. On 15 and 19 May 2023, the penalty hearing of the Contempt Proceedings took place before Darke J.

88. On 25 May 2023, Darke J gave judgment on penalty in the Contempt Proceedings: BCEG International (Australia) Pty Ltd v Xiao (No 3) [2023] NSWSC 554. In that judgment, Darke J ordered that Mr Xiao be committed to a correctional centre until such time as the contempts were purged, which order was suspended for 21 days to allow him a final opportunity to purge his contempt. In addition, Mr Xiao and Ms Chen were both ordered to pay fines of $125,000 and $75,000 respectively and Mr Xiao, Ms Chen, IWC and WWMP were ordered to pay BCEG Australia’s costs of the Contempt Proceedings on an indemnity basis.

Liquidation of ILP and WWMP

89. On 28 February 2023, an order was made that ILP be wound up in insolvency and liquidators appointed to it.

90. On 8 June 2023, the members of WWMP resolved to appoint a liquidator to WWMP.

Financial capacity of Mr Xiao and Ms Chen

91. The title searches of the real property interests jointly held by Mr Xiao and Ms Chen indicate that they are all heavily encumbered with mortgages. Only one property located in Beijing, China held by Mr Xiao alone is not recorded as being encumbered.

QUANTIFICATION OF COSTS

92. The application for gross sum costs orders is supported by the expert evidence of Michael John Dudman. Mr Dudman has been a solicitor admitted to practice in this court for 32 years and for the last 24 years he has practised solely in the area of legal costing. Mr Dudman has been an Accredited Costs Law Specialist for seven years. No challenge to the expertise of Mr Dudman was made by Mr Xiao and Ms Chen.

93. Mr Xiao and Ms Chen also did not lead any expert evidence contrary to the expert evidence of Mr Dudman.

94. Mr Dudman reviewed a considerable body of material for the purposes of arriving at his estimate of the reasonable costs of the Main Proceedings, the Contempt Proceedings and this application. This material included:

1. a letter of instruction of 5 July 2023 from Thomson Geer;

2. judgments in the Main Proceedings, the Contempt Proceedings and the Appeal Proceedings;

3. related costs orders;

4. costs agreements and disclosures;

5. invoices;

6. trust ledgers;

7. court documents including pleadings, subpoenas, various notices and evidence;

8. an Excel document titled Costs Assessment Summary setting out time entries and professional fees for attendances carried out during the Main Proceedings and the Contempt Proceedings up to and including May 2023;

9. electronic access to extracts from Thomson Geer’s file requested by Mr Dudman for sampling purposes for the months of November 2020, October 2021, February 2022 and March 2023 comprising correspondence, documents and emails; and

10. an itemised list of all disbursements and copies of disbursement invoices.

95. From reviewing these materials, Mr Dudman was able to obtain an understanding about the background and complexity of the Main Proceedings, the quality and nature of the work performed during the Main Proceedings and the procedural history of them.

96. Mr Dudman assumed that the costs of the work undertaken by Thomson Geer pursuant to the May 2018 Engagement Letter, for which invoices were issued to BCEG China, are recoverable as costs of the Main Proceedings on the basis that they were incurred in contemplation of the subsequent litigation and if reasonably incurred and reasonable in amount. Whether Mr Dudman’s assumption is correct is an issue in contest on this application.

97. On this assumption, Mr Dudman expressed the opinion that work carried out prior to the formal commencement of the Main Proceedings was clearly done in contemplation of the subsequent litigation.

98. Mr Dudman’s methodology involved comparing documents in the file sample and locating them within the Costs Assessment Summary to gauge how accurate the descriptions are within the Costs Assessment Summary and how reasonable the time spent and fees charged for the related work product were. Mr Dudman selected the months of November 2020, October 2021, February 2022 and March 2023 as his chosen file sample to ensure that a reasonably large body of a variety of work was carried out during the sample periods. Mr Dudman reviewed approximately 200 documents from the sample and determined that any review of further sample material was unlikely to provide further assistance to him.

99. After conducting the file sample review, Mr Dudman concluded that:

1. The associated times relating to preparing or perusing the 200 sample documents were almost universally reasonable.

2. Numerous emails obtained from the file sample were not specifically referenced within the costs assessment summary, indicating that fees were sometimes not charged for a considerable number of (generally brief) attendances throughout the Main Proceedings.

3. There were clear efforts made to appropriately delegate work to staff, including non-qualified staff at lower hourly rates. 60.4% of time spent in the matter reflected work carried out by non-qualified fee earners or lawyers charging at or less than $400 per hour.

4. There was very little evidence of the same task being duplicated by more than one fee earner.

5. There was little evidence of internal conferencing by one solicitor with another solicitor or with a non-qualified staff member.

6. There was some common, albeit little, evidence of excessive time being spent on tasks.

100. Mr Dudman formed the overall view that the total costs incurred in the matter are generally reasonable based on a number of factors, including:

1. the complexity of the proceedings;

2. the relatively moderate hourly rates charged;

3. the duration of the proceedings (now approaching their sixth year);

4. the significance and outcome of the Main Proceedings in which the quantum was determined by Rees J for substantial amounts against the individual defendants;

5. the significance and outcome of the Contempt Proceedings;

6. the total costs and disbursements charged in the matter; and

7. his experience of costs incurred in matters involving some complexity, significant duration and involving large settlement sums or judgment amounts.

101. Mr Dudman is of the opinion that the hourly rates charged by the solicitors for BCEG Australia (Thomson Geer) of between $270 and $650 based on seniority of experience to be relatively moderate, noting that the rates of $600 per hour for experienced legal practitioners were at the mid to upper range of the spectrum of rates allowed in New South Wales in 2019. In his view, these hourly rates would be allowed in full on assessment.

102. Mr Dudman considered the costs disclosures which had been given by Thomson Geer and formed the view that Thomson Geer had satisfied the disclosure requirements of the Legal Profession Uniform Law 2014 (NSW), and that their costs would be assessable by reference to the May 2018 Engagement Letter and the December 2019 Engagement Letter.

103. Mr Dudman also considered the terms of engagement provided by counsel and concluded that sufficient information had been provided to Thomson Geer to enable them to satisfy the requirements of the Legal Profession Uniform Law and that, if assessed, the fees charged by counsel would be assessable by reference to their costs agreements with Thomson Geer.

104. Mr Dudman did, however, make specific reductions to individual items of professional fees in the later invoices as follows:

1. attendances to research legislative provisions were reduced by 100%;

2. redacted attendances were reduced by 100%;

3. attendances more appropriately carried out by paralegal staff than by qualified lawyers were reduced to a graduate rate of $270 per hour;

4. attendances where the level of detail did not justify the time spent or fees charged were reduced by 10% in relation to costs recoverable on a party/party basis and 5% on an indemnity basis;

5. attendances non-recoverable for miscellaneous reasons such as compliance with disclosure obligations, leaving messages and enforcing bankruptcy notices (being costs of enforcement, not costs of the Main Proceedings) were reduced by 100%; and

6. attendances liaising with and reporting to BCEG Australia were reduced by 50% on a party/party basis and 25% on an indemnity basis, for the reason that Thomson Geer’s level of reporting to BCEG Australia was relatively high.

105. Mr Dudman concluded that the rates charged by counsel were not excessive, their overall fees are proportionate with the work required and all hourly rates charged by counsel would be allowed on assessment as between practitioner and client as charged, particularly having regard to all the circumstances relating to the work (including the experience of senior counsel) and the nature, complexity and the outcome of the Main Proceedings.

106. Mr Dudman calculated that the actual costs incurred by BCEG Australia in the Main Proceedings (excluding in relation to the Contempt Proceedings and this application) comprise professional fees of $1,532,156.00 and disbursements of $975,288.44, totalling $2,507,444.44.

107. Mr Dudman calculated that the actual costs incurred by BCEG Australia in the Contempt Proceedings comprise professional fees of $144,177.50 and disbursements of $197,775.85, totalling $341,953.35.

108. Mr Dudman is of the view that the professional fees would likely be reduced on assessment between 0% and 5% of the assessed costs on the indemnity basis and between 10% and 15% of the assessed costs on the ordinary basis. Mr Dudman has adopted the mid-point of these ranges, applying a reduction of 2.5% to professional fees recoverable on the indemnity basis (after application of specific reductions) and 12.5% on the ordinary basis.

109. Mr Dudman’s estimates of the costs and disbursements incurred by BCEG Australia that he considers would be fair and reasonable are as follows:

1. $2,158,431.43 in the Main Proceedings calculated as follows:

1. $1,263.021.48 for professional fees comprising:

1. $243,202.35 on the ordinary basis, with specific reductions of $12,290.46, an order reduction of $780 and a 12.5% reduction of $34,743.19 from the total assessed costs of $291,016; and

2. $1,019,819.13 on the indemnity basis, with specific reductions of $18,513.75, order reductions of $176,657.92 and a 2.5% reduction of $26,149.21 from the total assessed costs of $1,241,140; and

2. $895,409.95 for disbursements (being $975,288.44 total disbursements less reductions of $79,878.49);

2. $314,030.28 in the Contempt Proceedings calculated as follows:

1. $123,564.43 for professional fees on the indemnity basis – with specific reductions of $2,011.75, order reductions of $15,433.00 and a 2.5% reduction of $3,168.32 from the total assessed costs of $144,177.50; and

2. $190,465.85 for disbursements (being $197,775.85 total disbursements less reductions of $7,310.00).

110. The above calculations of Mr Dudman include professional fees incurred up to and including May 2023 and disbursements incurred up to and including June 2023.

111. These calculations do not include costs since those dates or any professional fees and disbursements relating to this application.

112. This means that on Mr Dudman’s calculations, BCEG Australia would recover $2,158,431.43 as its fair and reasonable costs out of total assessable costs of $2,507,444.44 in the Main Proceedings (86% recovery) and $314,030.28 as its fair and reasonable costs out of total assessable costs of $341,953.35 in the Contempt Proceedings (91.18% recovery).

LEGAL PRINCIPLES

113. Section 98 of the Civil Procedure Act 2005 (NSW) (CPA) relevantly provides:

Courts powers as to costs

(1)   Subject to rules of court and to this or any other Act —

(a)   costs are in the discretion of the court, and

(b)   the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c)   the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

…

(4)   In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to —

…

(c)   a specified gross sum instead of assessed costs, or

…

114. In Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213, Giles JA at [21]–[22] said:

[21]   The power conferred by r6(2) is not confined, and may be exercised whenever the circumstances warrant its exercise. It may appropriately be exercised where the assessment of costs would be protracted and expensive, and in particular if it appears that the party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment (Leary v Leary (1987) 1 WLR 72; Sparnon v Apand Pty Ltd (von Doussa J, 4 March 1998, unreported); Beach Petroleum NL v Johnson (1995) 57 FCR 119; Hadid v Lenfest Communications Inc [2000] FCA 628).

[22]   Of its nature, specification of a gross sum is not the result of a process of taxation or assessment of costs. As was said in Beach Petroleum NL v Johnson at 124, the gross sum "can only be fixed broadly having regard to the information before the Court"; in Hadid v Lenfest Communications Inc at [35] it was said that the evidence enabled fixing a gross sum "only if I apply a much broader brush than would be applied on taxation, but that ... is what the rule contemplates". The approach taken to estimate costs must be logical, fair and reasonable (Beach Petroleum NL v Johnson at 123; Hadid v Lenfest Communications Inc at [27]). The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA).

115. In Hamod v State of New South Wales [2011] NSWCA 375, Beazley JA (with whom Giles and Whealy JA agreed) at [813]–[820] relevantly summarised the principles in the following way:

[813] I have already set out the relevant provisions of s 98. The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]–[22]. In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. However, his Honour stated, at [22]:

The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available.

…

[815]   In Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160, von Doussa J noted that the specified gross sum costs procedure was particularly useful in complex cases, that the power must be exercised judicially and only after giving the parties an adequate opportunity to make submissions, and that before exercising the power the court should be confident that the approach taken to estimate costs is fair, logical and reasonable.

[816] The terms of s 98(4), together with the more general considerations reflected in the Civil Procedure Act, ss 56(1), 57(1)(d) and 60, suggest the factors that merit particular consideration include: the relative responsibility of the parties for the costs incurred (for example, Harrison v Schipp); the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability: Ritchie's Uniform Civil Procedure NSW at [s 98.45].

[817] The exercise of the power conferred by s 98(4) is particularly appropriate where the costs have been incurred in lengthy or complex cases and it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment. This may arise either from the likely length and complexity of the assessment process: Beach Petroleum NL v Johnson (No 2) at 120; Charlick Trading Pty Ltd v Australian National Railways Commission; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; or from the likelihood that the additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event: Harrison v Schipp; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 at [90], [194]–[195]; Hadid v Lenfest Communications Inc [2000] FCA 628.

[818]   The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101; Ritchie's Uniform Civil Procedure NSW at [s 98.60]).

[819]   The assessment of any lump sum to be awarded must represent a review of the successful party's costs by reference to the pleadings and complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing: Smoothpool v Pickering [2001] SASC 131. In the exercise of its discretion the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: Harrison v Schipp at 743; Hadid v Lenfest Communications Inc at [35]; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673.

[820]   The costs ordered should be based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills): Beach Petroleum NL v Johnson (No 2) ; Leary v Leary; Harrison v Schipp at 743 ; Sparnon v Apand Pty Ltd (FCA, 4 March 1998, unreported). The approach taken to estimate the costs to be ordered must be logical, fair and reasonable: Beach Petroleum NL v Johnson at 164–165; Hadid v Lenfest Communications Inc at [27]; Harrison v Schipp at 743. This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment: Leary v Leary at WLR 76 per Purchas LJ; Beach Petroleum NL v Johnson (No 2) at 123; Auspine Ltd v Australian Newsprint Mills Ltd at 164–165.

116. Ball J in Baychek v Baychek [2010] NSWSC 987 at [11] explained the relationship between the actual costs and the gross sum claimed in these terms:

… Implicit in this principle is that the gross sum bear a reasonable relationship to the actual costs of the party making the application, and to the costs that that party might reasonably be expected to recover on assessment. That means, among other things, that there must be a reasonable evidentiary basis for the order the court makes. That evidentiary basis is normally provided by the costs applicant in the form of an affidavit setting out the actual costs incurred and how they were calculated. Often, the evidence also includes evidence of the amount that is likely to be recovered on assessment.

117. In undertaking the exercise of calculating a gross sum, in Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121, JC Campbell AJA at [7] said (citations omitted):

Because s 98(4)(c) makes clear that a gross sum costs order is intended to be an alternative to assessed costs, the meticulous item by item examination of a bill of costs that occurs in the course of an assessment need not be engaged in. A “broader brush“ approach can be adopted. However, because the discretion is one which must be exercised judicially the Court must arrive at a figure that it is confident does justice between the parties, even though the full assessment process has not been gone through. In Hamod at [814] this Court approved the statement in Richie’s Uniform Civil Practice (NSW) that “the courts have typically applied a discount in assessing costs on a gross sum basis”.

118. The Court of Appeal of this court recently conveniently stated the relevant principles (principally those distilled in Harrison and Hamod) in Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39, Meagher, White and Brereton JJA saying at [14]–[18]:

[14] The principles relevant to the Court’s exercise of discretion under s 98 were set out in Hamod v New South Wales [2011] NSWCA 375 at [813]-[820] (Beazley JA) (Hamod). Her Honour noted at [813]:

[813]   The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]. In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. However, his Honour stated, at [22]:

"The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available."

[15] The principal purpose of a specified gross sum costs order under s 98(4)(c) is to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process: Hamod at [816]-[817]. As Basten JA noted in James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 at [3]:

The power to make such an order is governed by the obligation of the court to give effect to the overriding purpose of the Act, as identified in Pt 6 of the Civil Procedure Act. The court is to ensure that the issues between the parties are resolved “in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute” (Civil Procedure Act, s 60); that obligation extends to the disposal of disputes as to costs. Although questions of costs undoubtedly play an important practical role in commercial litigation, disputes as to quantification are ancillary to the primary issues in dispute and consequential upon the resolution of the primary issues. Costs provide an opportunity for ongoing litigation about “non-essential issues” which should be resolved with as little technicality and expense as reasonably practicable. [footnotes omitted]

[16] Primary considerations relevant to the exercise of the s 98(4)(c) discretion include “the relative responsibility of the parties for the costs incurred; the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability”: Hamod at [816]; see also Kostov v Zhang (No 2) [2016] NSWCA 279 at [22]; eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422 at [30].

[17]   The power to award a gross sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 734 at 743; [2002] NSWCA 213 at [22]. The power may be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod at [818].

[18]   If it considers it appropriate to make the order, the Court may adopt a “broad brush” approach to quantification, as to require the Court to undertake a detailed examination of the kind carried out in a formal costs assessment would defeat the purpose of the order: Harrison v Schipp at 743; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]. The costs ordered should be “based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills)”: Hamod at [820]. Courts have typically applied a discount when assessing costs on a gross sum basis, though the aptness of a discount primarily depends on the accuracy and reliability of the costs evidence available to the Court: Hamod at [814].

119. As to the discount to be applied when the gross sum is assessed on an indemnity basis, the approach is summarised in Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640, by Brereton J at [57]–[62], which establish the following propositions (citations omitted):

1. While the usual practice of the court is to apply a discount, it does not mean that the court must apply a discount and the court should be astute not to cause injustice to the successful party by applying an arbitrary discount.

2. If the court is confident that there is little risk that the gross sum includes costs that might be disallowed on assessment, the case for a discount is seriously undermined.

3. Where the amount claimed by the successful party has been revised down with “out of scope” items identified and removed, the process for which the discount is ordinarily intended to provide has in fact taken place.

4. Where a gross sum is assessed on an indemnity basis and there is no evidence of unreasonableness, it may be inappropriate to apply a discount, although it may be appropriate if there is evidence that the successful party errs on the side of excessiveness.

5. For an indemnity costs order, the unsuccessful party bears the onus of proving unreasonableness and any doubt about the reasonableness of the amount charged for a particular item is to be resolved in favour of the successful party.

ISSUE 1: PRE-COMMENCEMENT COSTS IN THE MAIN PROCEEDINGS

Submissions of BCEG Australia

120. Mr Williams SC with Mr Riordan appeared as counsel for BCEG Australia, instructed by Thomson Geer.

121. Part of the costs claimed by BCEG Australia in the Main Proceedings are termed as “pre-commencement costs”, being the costs incurred pursuant to the May 2018 Engagement Letter and before the Main Proceedings were commenced on 4 October 2019 by BCEG Australia.

122. BCEG Australia has restricted its claim for pre-commencement costs to work performed between 28 August 2018 and 27 September 2019. BCEG Australia does not seek to recover as costs the amounts that were charged under the invoices dated 31 May 2018, 30 June 2018 and 27 July 2018.

123. BCEG Australia submits that it is entitled to recover its pre-commencement costs because it was liable for those costs pursuant to the May 2018 Engagement Letter. It says that whilst the addressee of the May 2018 Engagement Letter was BCEG China, the letter itself was signed by Ms Dong in her capacity as a director of BCEG Australia. It also says that parts of the May 2018 Engagement Letter also pointed to BCEG Australia as a party to it, being the reference in paragraph 2.1 to the “arrangements with a local Australian property developer in relation to the development, finance and construction of two Australian projects”, which refers to the BCEG Australia as the entity that entered into the project agreements the subject of the investigation. BCEG Australia asserts that BCEG China was not a party to any construction contracts or projects statements.

124. Further, BCEG Australia contends that if I was to find that the May 2018 Engagement Letter was with BCEG China, BCEG Australia was its subsidiary and the work performed under the engagement was clearly in contemplation of the Main Proceedings that ultimately ensued in the name of BCEG Australia. BCEG Australia also asserts that BCEG Australia benefited from the work that was undertaken in this period, including interviewing potential witnesses (one of whose evidence was instrumental in establishing liability), reviewing BCEG Australia’s business records and engaging a forensic accounting expert from whom an expert report was later filed in support of BCEG Australia’s damages case.

Submissions of Mr Xiao and Ms Chen

125. Mr Le Plastrier with Ms Steinhoff appeared as counsel for Mr Xiao and Ms Chen, instructed by HWL Ebsworth.

126. Mr Xiao and Ms Chen submit that the May 2018 Engagement Letter was with BCEG China and nothing in it or the Terms of Engagement attached to it suggests that the true contracting party was other than BCEG China.

127. Mr Xiao and Ms Chen refer to the Terms of Engagement which state:

These Terms of Engagement form part of our agreement with our client. Our client is the person or entity that we agreed to act for in the letter of engagement … that accompanies or refers to these Terms of Engagement. The client that we agreed to act for in the letter of engagement… is referred to in these Terms of Engagement as ‘you’.

128. Mr Xiao and Ms Chen point to the numerous references to “you” in the Terms of Engagement, including:

1. Thomson Geer “will provide you with legal services arising from your instructions from time to time”;

2. “You are entitled to receive a written bill of costs”;

3. “You have rights under the LPA in relation to each of our costs agreements”; and

4. “You may terminate this agreement at any time”.

129. According to Mr Xiao and Ms Chen, the signature of Ms Dong beneath BCEG Australia’s handwritten name in the May 2018 Engagement Letter only establishes that Ms Dong may have been confused but nothing more.

130. They also say that the issue can be determined on liability: Thomson Geer would be liable to BCEG China for any negligent advice and Thomson Geer would look to BCEG China to be liable to pay any unpaid invoices issued by Thomson Geer.

129. They further submit that the following contractual conduct is admissible on the question of whether a contract was formed with BCEG Australia in the form of the May 2018 Engagement Letter, being:

1. The fact that the December 2019 Engagement Letter was issued to BCEG Australia demonstrates that the May 2018 Engagement Letter was not with the BCEG Australia but was with BCEG China, otherwise there would have been no need to enter a new retainer.

2. Eugene Fung, the partner, project lead and primary contact at Thomson Geer, sent the email on 20 December 2019 which attached the December 2019 Engagement Letter with the Terms of Engagement and stated:

As the BCEG entity engaging Thomson Geer is now BCEG Australia we need to provide a new engagement letter …

Mr Xiao and Ms Chen assert that the court should refer to Mr Fung’s understanding of the identity of the party to the May 2018 Engagement Letter.

3. It has always been open to BCEG Australia to seek rectification of the May 2018 Engagement Letter to reflect that it was with BCEG Australia but no such application has been made.

4. The reference in the May 2018 Engagement Letter to “arrangements with a local Australian property developer in relation to the development, finance and construction of two Australian projects” can only be to BCEG China because it was that entity that provided the project finance and therefore the paragraph does not speak in either direction on the construction question.

132. In the event that I find that the May 2018 Engagement Letter was with BCEG China, Mr Xiao and Ms Chen counter the argument made by BCEG Australia that it benefited from the work that was done and it is entitled to the costs incurred by BCEG China. They argue that the liability under the May 2018 Engagement Letter is that of BCEG China alone. They also say that BCEG Australia cannot recover BCEG China’s costs simply because it is BCEG China’s subsidiary, as wholly-owned subsidiaries have a separate legal status. They assert that the liability to Thomson Geer for costs under the May 2018 Engagement Letter would appear in the books of BCEG China, not BCEG Australia, it is only BCEG China that is entitled to a bill of costs and it is only BCEG China that is owed a fiduciary duty and a duty of care by Thomson Geer.

133. Finally on this issue, Mr Xiao and Ms Chen submit that the argument that the work undertaken pursuant to the May 2018 Engagement Letter was clearly in contemplation of the Main Proceedings that ensued in the name of BCEG Australia does not advance BCEG Australia’s argument because it does not create a liability on the part of BCEG Australia to pay the costs incurred under the May 2018 Engagement Letter, nor does it give BCEG Australia an entitlement to obtain the orders sought in the application.

Consideration

134. To my mind, this issue can be determined very simply.

135. The Terms of Engagement attached to the May 2018 Engagement Letter were signed at the end on behalf of BCEG Australia by its director, Ms Dong. By doing so, BCEG Australia became the “client described below” who “acknowledges receipt of these Terms of Engagement and the accompanying letter” and, importantly, “agrees to be bound by the terms of each costs agreement made with you [BCEG Australia], that will comprise these Terms of Engagement and the provisions of letters and emails that set out the legal services we [Thomson Geer] agreed to provide to you [BCEG Australia] for each Legal Project.”

136. It was by providing her signature as director of behalf of BCEG Australia that Ms Dong bound BCEG Australia as the “client” under the May 2018 Engagement Letter to be liable for the fees charged by Thomson Geer for all of the pre-commencement work done by them. I consider that the lack of any signature on behalf of BCEG China makes the case for BCEG China being the “client” far more difficult to mount than that of BCEG Australia.

137. Based on this construction of the May 2018 Engagement Letter, in accordance with its plain terms and obvious objective intention, it is not necessary for me to consider any of the alleged post-contractual conduct said to be consistent with only BCEG China being the client liable under the May 2018 Engagement Letter. It is also unnecessary for me to consider the alternative argument made by BCEG Australia that the costs were incurred by BCEG China for the benefit of BCEG Australia. That question does not arise on the determination I have made.

138. Accordingly, in my determination BCEG Australia is entitled to claim the costs of the pre-commencement work from Mr Xiao and Ms Chen.

ISSUE 2: GROSS SUM COSTS IN THE MAIN PROCEEDINGS

Submissions of BCEG Australia

139. BCEG Australia made the following submissions in support of its case that a gross sum costs order should be made:

1. The conduct of the defendants unnecessarily contributed to the costs of the proceedings.

2. The proceedings were lengthy and complex and involved multiple parties and the costs assessment process would likewise be protracted and expensive.

3. This is a case that “cries out to be finalised” (Wallis v Rudek [2020] NSWSC 1618, Kunc J at [27]), with the Main Proceedings being initiated in 2019 and having spawned satellite proceedings such as the Contempt Proceedings and three proceedings in the Federal Court.

4. The alternative of costs assessment is undesirable as there is a real prospect that the defendants would seek to frustrate and delay that process having regard to their conduct that is the subject of similarly adverse findings in this court.

5. It is also probable that the defendants will be unable to satisfy their costs liability, having regard to the heavily encumbered state of their real property assets which is consistent with the numerous attempts that were required in order for the defendants to refinance in order to purge their contempt.

140. BCEG Australia contended that it is not apparent that Mr Xiao and Ms Chen oppose a gross sum costs order but seem to oppose the quantum of that order.

141. BCEG Australia say that useful guidance on the approach to be followed in this case in relation to quantum can be found in Huang v Wei (No 4) [2023] NSWSC 164 where costs were awarded on the ordinary basis and on the indemnity basis for discrete periods during the course of the proceedings. In that case, Kunc J took the following approach:

1. For the period in which costs were determined on the ordinary basis, the professional fees were reduced by 25% and counsel’s fees and other disbursements were not discounted at all, and then a further 10% discount was applied to reflect a broad brush approach.

2. For the period in which costs were determined on the indemnity basis, the professional fees were reduced by 5% and counsel’s fees and other disbursements were not discounted at all, and then no further discount was applied.

142. BCEG Australia primarily relied on the opinions of Mr Dudman in support of its claim to fix its costs as a specified gross sum. It says that Mr Dudman’s approach of adopting a sampling-based analysis, making entire or partial reductions to specific items which he did not consider to be reasonably recoverable, giving the benefit of the doubt to those costs that were recoverable on the indemnity basis, constitutes a fair, logical and reasonable approach to the assessment of the recoverable costs.

143. In particular, BCEG Australia points to the following further specific matters to support Mr Dudman’s overall opinions concerning costs calculated on the ordinary basis:

1. The Main Proceedings involved lengthy and complex allegations of fraud, making it appropriate to brief junior and senior counsel at an early stage.

2. The defendants first indicated that they would be relying on the privileges against self-incrimination and self-exposure to a civil penalty and left unclear in their response whether assertions of fact were denied due to the claim for privilege or because they believed them to be untrue.

3. Mr Dudman was provided with the invoices and formed the view that the fees itemised and charged in the matter were particularly reasonable and almost universally reasonable and there was little evidence of excessive costs.

144. BCEG Australia pressed for me to accept Mr Dudman’s methodology of making specific reductions and then applying midpoint discounts of 2.5% on the indemnity basis and 12.5% on the ordinary basis.

145. BCEG Australia placed store in the fact that a substantial amount was deducted by Mr Dudman to reflect the fact that some costs incurred during the period did not fall within the scope of the costs order. Those costs were primarily incurred in connection with the concurrent hearing of two notices of motion before Williams J, the result of which was that each party was to bear their own costs.

146. BCEG Australia addressed each of the criticisms levelled by Mr Xiao and Ms Chen (underlined below) about the opinions of Mr Dudman in the following way:

1. The deductions to reflect the order made by Williams J may be inaccurate: No attempt was made by Mr Xiao and Ms Chen to explain why further or greater reductions ought to have been applied.

2. Non-litigation fee earners of Thomson Geer charged fees for their time on the file: Mr Fung as a partner, assisted by Ms Siew Mai Fagan as his senior associate, had language skills and experience in international matters to assist with client communications and the setting of strategy. The fees incurred by David Chen, Christian Teng and Erin Mack occurred when they were graduate solicitors on rotation to Thomson Geer’s dispute resolution and litigation practice. Frances Coyne from the corporate team assisted with the large-scale discovery given late by the defendants.

3. The costs attributable to the IWC account of profits enquiry have been included in the overall amount claimed: Mr Dudman considered all relevant costs orders, including those made by the Court of Appeal and excluded fees relating to costs orders under which BCEG Australia has no entitlement to recovery. Order 4 of the orders made by the Court of Appeal required BCEG to pay IWC’s costs of the inquiry as to profits. Mr Dudman had regard to BCEG Australia’s non-entitlement to the costs of the inquiry as to profits. He went through each of the line items of all of the invoices and came to the view that it was an infinitesimal part of the case. In any event, the causation finding on appeal was not a point which had been run in the court below and this was the reason why it was held by the Court of Appeal that costs should not follow the event. There was no fact rich matter relevant to the claim against IWC. The case was that two fraudsters had caused a loss to BCEG Australia and profited. The obtaining of an order for an account of profits took next to no time in the case. This is not a case in which I would look to the number of parties and work out a percentage. There is no reason to provide any further discount because any further reduction of $2,000 or so in the context of a gross sum costs order of around $2.8 million is a “drop in the ocean”.

4. The costs of the appeal are included in the calculations: Mr Dudman noted a discrepancy between the actual costs identified by Thomson Geer and the actual costs he has determined. The reason for the discrepancy appears to relate to the inclusion of some costs referable to the appeal in the amount stated in the letter of instruction to Mr Dudman. Mr Dudman’s reference to an “amount largely excludes costs relating to the appeal proceedings” is simply to be read to the effect that “a handful of attendances and disbursements” relating to the appeal might have survived his culling process. This is consistent with the correct approach to gross sum costs application, which does not involve the consideration of every narrative in fine detail.

5. Mr Dudman has not accounted for any set off that might be available for the defendants: This is explained by the fact that the defendants have taken no steps to quantify any of the costs orders which benefit them and it is their onus to do so. Neither BCEG Australia nor Mr Dudman have been provided with any invoices issued by the defendants.

Submissions of Mr Xiao and Ms Chen

147. Mr Xiao and Ms Chen submit that the intention of the costs orders made by the Court of Appeal was that BCEG Australia would not receive any of its costs in relation to the claim against IWC. They say that it does not appear that Mr Dudman has taken into consideration the fact that IWC was excluded from the costs orders made by Rees J in the Main Proceedings, nor that the Court of Appeal also said that there was no order as to costs at first instance as between BCEG Australia and IWC and that BCEG Australia was to pay IWC’s costs of the inquiry as to profits.

148. Mr Dudman was cross-examined on these matters. Mr Xiao and Ms Chen say that on a logical, fair and reasonable approach, I cannot be confident that Mr Dudman has properly identified the costs attributable to the prosecution of IWC and nowhere in his evidence in the report or in his answers did he give a considered reflection to how the amount of the order reduction of $780 (0.002%) has been applied. No alternative amount was proffered by Mr Xiao and Ms Chen.

149. According to Mr Xiao and Ms Chen, these errors made by Mr Dudman mean that there should be no gross sum costs order made on this application, but if I am minded to make a gross sum costs order then in so far as Mr Dudman has failed to reduce his overall total by reference to these matters, the question arises as to the extent of the discount that should apply which would fairly reflect, in a broad brush way, the reductions that ought to have been made by Mr Dudman.

150. Mr Xiao and Ms Chen also say that if I accept that I do not have confidence in the proper approach taken by Mr Dudman to the calculation of the $780 figure then that should impact on my ultimate conclusion about the weight that I can place on Mr Dudman’s report and his ultimate conclusions. They say that I should not have any confidence in, or have a valid question over, whether the balance of the figures is correct and I would not be able to make my own calculations without the assistance of any evidence. They assert that the burden is on BCEG Australia and if it has turned up to court with evidence that does not prove a critical aspect of the calculation then I am entitled to say that I am not going to embark on the process.

151. Alternatively, Mr Xiao and Ms Chen say an appropriate discount would be 20% applied in a broad brush way simply because there are five defendants and I would be seeking to reduce the costs to reflect the removal of one of them, IWC, recognising that there is no evidence and no science behind a reduction in that fashion.

Consideration

152. I am firmly of the view that this application is a quintessential case for the making of a gross sum costs order. I completely agree with the thrust of the submissions put forward by BCEG Australia that it is a case that “cries out to be finalised”. Applying the tests outlined in Harrison and Hamod, I am confident that on the materials I have been provided I am able to arrive at an appropriate sum using an approach that is fair, logical and reasonable.

153. The parties have been buried in complex litigation in the Main Proceedings for the past five years involving serious and complex allegations of fraud against multiple parties. The disputation needs to be brought to an end, in the interests of all parties. I have no doubt that based on the history of the Main Proceedings, it is highly desirable to avoid the expense, delay and aggravation likely to be involved in any contested costs assessment between the parties. These are all matters which favour the making of a gross sum costs order, as identified in Harrison at [21] and Hamod at [816]–[817].

154. There is no doubt that the delaying conduct of Mr Xiao and Ms Chen has unnecessarily contributed to the costs incurred by BCEG Australia in the Main Proceedings (Hamod at [818]). They commenced their defence in November 2019 by relying on privileges, which they maintained for two years before adopting a last minute about-face on the eve of the first dates fixed for the trial of November 2021. Not only did this cause an abandonment of those trial dates, it also caused BCEG Australia to have to adopt a different approach of its own. BCEG Australia had to be prepared to be put to proof on every issue and then deal with a wholesale change in the approach of the defendants. The disruptions that this would have caused to BCEG Australia cannot be understated.

155. As Rees J stated in the Costs Judgment, the Main Proceedings were delayed, unnecessarily difficult and protracted by the defendants, BCEG Australia’s preparations were considerably disrupted and derailed and false defences were maintained by the defendants when they were known to be false.

156. I am also satisfied that as unsuccessful parties, Mr Xiao and Ms Chen have doubtful capacity to satisfy any costs liability due to the encumbered state of their real property interests (Hamod at [816]–[817]). They did not provide any evidence to counter this impression.

157. I also consider that the approach taken by Mr Dudman in estimating the costs incurred by BCEG Australia in the Main Proceedings is logical, fair and reasonable (Harrison at [22]; Hamod at [813], [815] and [820]). Mr Dudman’s specialist expertise derived from his decades of experience is undoubted. The approach he has taken to the calculation of costs is detailed, nuanced and reasoned. It involves complex considerations across a very significant body of material. No competing expert view was put forward by Mr Xiao and Ms Chen.

158. The integrity of Mr Dudman’s approach is emphasised by the specific reductions he has made. My view of the comprehensiveness of his approach and his integrity was reinforced on the cross-examination of him. I have confidence in accepting his approach.

159. The only real question which arose during that cross-examination was the extent to which Mr Dudman had made a proper reduction arising from the Court of Appeal decision to make no order for costs at first instance as between BCEG Australia and IWC. In reaching my view on the issue I must keep in mind that I am approaching the quantification of costs for a gross sum costs order in a broad brush way and in the exercise of my discretion I am not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment (Harrison at [22]; Hamod at [819]). I need to be confident that in adopting the broad brush approach I can do justice between the parties (Penson at [7]).

160. Mr Dudman was questioned on whether he had made a sufficient reduction in his calculations when he lowered the costs by $780 in the calculation of costs on the ordinary basis before September 2020 to allow for the effect of the Court of Appeal revisions of the costs orders made in the Costs Judgment by Rees J. It was put to Mr Dudman that in the commercial list statement in October 2019 there were serious, fact rich allegations against IWC and answers provided to requests for particulars in November 2019 which related to the case against IWC, which Mr Dudman accepted as true for the case in general, not just that against IWC (T15–19 and T28.12–19). Mr Dudman was shown the time entries for the work undertaken by Thomson Geer on the answers to the particulars totalling $14,541, as part of the work for which costs of $291,016 on the ordinary basis were calculated (T19–23).

161. Mr Dudman was also challenged on whether the order reductions of $176,657.92 in the calculation of costs on an indemnity basis after September 2020 included the costs associated with the account of profits claim against IWC for which the Court of Appeal ruled there should be no award of costs (T24–25). Mr Dudman said that that these reductions of $176,000 did include costs disallowed by him in relation to the account of profits (T25.48–26.8).

152. Mr Dudman was asked a series of questions which were premised on the charge out rate of the partner of Thomson Geer with carriage of the matter (Ms Walkom — $600 per hour) and Thomson Geer having carried out the following work in relation to the claim against IWC prior to 1 September 2020: investigations about whether IWC was a possible defendant, investigating possible causes of action against IWC, considering whether there existed a factual basis to make out those causes of action, considering the appropriate relief to be obtained against IWC, advising on prospects against IWC, drafting a summons in relation to IWC, drafting the commercial list statement in relation to IWC and carrying out work for the preparation of a response to particulars in relation to IWC (T27.30–44).

153. The following questions asked of, and answers given by, Mr Dudman are particularly instructive (T27.46–29.49, emphasis added):

Q.   Are you seriously suggesting that all the work that I just catalogued, which you accept occurred prior to 1 September 2020 in relation to the Fourth Defendant, cost $780, or only 1.5 hours of Ms Walkom's time?

A.   My approach in relation to orders taking the costs of the Fourth Defendant out in the party/party costs aspect of it were based on really more contextual information, looking at the – like a dozen paragraphs out of 519 paragraphs of the amended commercial list statement, effectively sort of suggesting to me that that part of the case was relatively minuscule, compared to the overall approach in the way the matter was managed. And so I took the view that if I removed a portion of those costs, it would be quite arbitrary and, not reflective of the overall case, which in my view tended to be focused on the fraud of the First and Second Defendants, and I just made a judgment call that really those costs were all, if you like, relevant to the case against the First and Second Defendants. But I accept what you're saying that, if you like, a more forensic approach may have come up with a different answer.

…

Q.   You agree that you told his Honour at the outset of the cross examination the claim against the Fourth Defendant was fact rich and technical?

A.   Yes. Sorry, I think I answered that – understand the question about the case in general. Certainly I accept in relation to the Fourth Defendant that would be true too.

Q.   And yet your evidence is that you thought it would be arbitrary to embark upon what you considered a more forensic analysis in the face of a conclusion that what you were facing was a fact rich and technical claim against the Fourth Defendant?

A.   As I state in my affidavit – I can take you to the paragraph. Look at paragraph 52 of my affidavit, it's stated identify costs from the narrative descriptions, all contextually. And I just took the view contextually that those costs were minimal, and really the case was all about – certainly in the initial stages, particularly the First and Second Defendants.

Q.   You said a moment ago that you accept what I'm saying, what was it that I was putting to you that you accepted?

A.   Well, that the matter was technically complex in relation to all components of the claim.

Q.   Do you accept as a consequence of these exchanges, that a more forensic approach would have been preferable?

A.   To be honest not necessarily, because I think if you look in the context of the sort of costs, I mean even if you have a look at the total costs incurred in the primary proceedings, you go to table 68, and total assessed costs, 291, you know, after you take out specific reductions, you're sort of down to the 280 mark. If you have a look at the costs – sorry, the work involved in putting together at least the amended commercial list statements, which is the one that I was relying on, that relates specifically to the Fourth Defendant. The paragraphs amount to roundabout 2.8 percent of the total document. And when you look at the response, I don't really identify any part of the response that deals particularly solely in relation to the Fourth Defendant whereas there are a number of responses that deal with the First, Second and Fourth Defendants. So you're sort of all grouped together in a matrix of facts. So, I guess my point is if you take, $280,000, and look at that, 2.8 percent, and these costs include costs relating to mediation, and a range of other factors that, you know, little to do with draft and pleadings, so roundabout $7,000 worth of costs. That's on the broadest basis that you're actually saying, you know, 2.8 percent should be carved out of all of those costs on the party-party basis. So I just don't – I'm sorry, I just don't accept that the costs are that significant in the early part of proceedings, relating to the Fourth Defendant.

Q.   You refer to 2.8 percent, perhaps I can give you another percentage. Would you accept that $780 as a percentage of $291,000 is .002 percent?

A.   I'm sure you've done your calculation, I accept that?

Q.   So you're seriously suggesting to his Honour that in relation to the Fourth Defendant having catalogued all the tasks that you accept were required, only .002 percent of that work was attributable to the prosecution of the case against the Fourth Defendant; is that your evidence?

A.   Well look, you know, according to my contextual inquiry into the pleading, and the way the matter was run, it doesn't really surprise me too much that it's so low at that early stage of proceedings. And if I can just add, there are, you know there's a global reduction there of 12.5, there's something of a sort of a margin of error. I mean we're looking at fixing a costs order in a gross amount, you take a broad brush approach, and it, you know, it's probably a margin of error plus or minus 5 percent, but the point still remains, taking a broad bush approach, and contextually applied my knowledge of the costs.

…

Q.   And you would agree that this more forensic approach that you suggest you could have taken would have required you to ask for those sorts of documents, wouldn't it?

A.   I don't think I was required to take a [forensic] approach.

Q.   What sort of approach were you required to take if not one that's appropriate for a court?

A.   More of a broad brush approach. The authorities are clear on that aspect. I've attempted to identify costs with precision based on descriptions in a narrative that would not be recoverable. But, you know, this is not an item by item costs assessment.

164. I accept the evidence given by Mr Dudman. Calculating a gross sum costs amount does not involve fine forensic distinctions on an item by item analysis of the time entries. Mr Dudman is correct in stating that the exercise involves broad brush considerations (not a line by line forensic approach) and the making of global reductions with a margin for error, including by looking at the costs in a contextual way. It is no part of my task to start making detailed calculations about what percentage is or is not attributable to a particular claim against a particular defendant which should be deducted from the costs of calculations.

165. Mr Dudman is right to say that the costs of the claim against IWC are relatively miniscule when the context of the overall claim is considered. As submitted by BCEG Australia, those costs are really nothing more than a “drop in the ocean”.

166. I reject the argument made by Mr Xiao and Ms Chen that Mr Dudman’s approach has been demonstrated to be wrong or erroneous in any way. I am confident of his approach across the whole of his calculations and I accept them.

167. I also reject the notion suggested by Mr Xiao and Ms Chen that I should arrive at a position where I discount the costs to be ordered against Mr Xiao and Ms Chen by 20% to account for the claim against IWC being one of five defendants. Proceeding in that way is so thoroughly detached in logic from even the idea of a broad brush approach that it cannot be sustained. A cursory consideration of the claims made in the Main Proceedings would not suggest that 20% of the work undertaken for BCEG Australia related to the claim against IWC.

168. Mr Dudman’s fair and reasonable approach of applying specific reductions, order reductions and a global reduction results in the legal fees in the Main Proceedings being $1,263,021.48 and the disbursements being $895,409.95, totalling $2,158,431.43. A gross sum costs order based on that amount would be an 86% recovery, so bears a reasonable relationship to the actual costs incurred by BCEG Australia in the Main Proceedings (Baychek at [11]).

169. In light of the many reductions that Mr Dudman has made, I do not propose to apply a further discount in setting the amount of the gross sum costs order for the Main Proceedings. I am satisfied with the accuracy and reliability of the costs evidence available to me in the form of Mr Dudman’s detailed and reasoned opinions and calculations so I consider that this is a case in which it is apt not to apply a discount for the costs claimed in the Main Proceedings (Ahern at [18]). I am confident based on Mr Dudman’s method that there is little risk that the gross sum includes costs that might be disallowed on assessment and therefore the case for a discount is seriously undermined (Hancock at [57]).

170. BCEG also claims interest under s 101(4) of the CPA calculated from the date of the costs order (12 September 2022) to the date of the hearing of this application (10 July 2024) of $369,774.79.

171. This results in a gross sum costs order (including interest) in favour of BCEG Australia in respect of the Main Proceedings of $2,528,206.22.

ISSUE 3: COSTS IN CONTEMPT PROCEEDINGS

172. Mr Xiao and Ms Chen conceded that BCEG Australia was entitled to a gross sum costs order on an indemnity basis in relation to the Contempt Proceedings and agreed that the amount of those costs is $314,030.28 plus interest under s 101(4) of the CPA calculated from the date of the costs order (25 May 2023) to the date of the hearing of this application (10 July 2024) of $35,982.71.

173. This results in a gross sum costs order in favour of BCEG Australia in respect of the Contempt Proceedings of $350,012.99.

ISSUE 4: COSTS OF THIS APPLICATION

174. BCEG Australia also claims the costs of this application on a gross sum costs basis. There was no opposition by Mr Xiao and Ms Chen to this part of the application.

175. The amounts sought are as follows:

1. Legal fees of Thomson Geer totalling $122,661.00 (GST exclusive) comprising:

1. Fees invoiced – $96,450.00;

2. Fees not yet invoiced – $18,591.00 and

3. Attendance at hearing of this application – $7,620.00.

2. Disbursements totalling $93,268.30 comprising:

1. Filing fee incurred – $1,436.00;

2. Costs expert incurred – $34,686.30;

3. Junior counsel incurred – $3,366.00;

4. Disbursements from the hearing of this application totalling $53,780.00, comprising:

1. Costs expert – $7,920.00;

2. Senior counsel – $30,550.00;

3. Junior counsel – $14,110.00;

4. Transcript – $1,200.00.

176. Given that there have been no reductions in the manner of those applied by Mr Dudman in the Main Proceedings, I agree with the approach suggested by BCEG Australia that in calculating the gross sum costs of the application I should apply a 25% discount to the legal fees of $122,661.00, which results in an amount of recoverable fees of $91,995.75.

177. I also agree with the approach suggested by BCEG Australia that in calculating the gross sum costs of the application I should apply no overall discount to the disbursements but should reduce the rate charged by senior counsel to $11,000 per day or $1,100 per hour, which results in the disbursement for senior counsel being reduced from $30,550.00 to $22,550.00 and reduces the total recoverable disbursements to $85,268.30.

178. This results in a gross sum costs order in favour of BCEG Australia in respect of this application of $177,264.05.

ORDERS

179. For the reasons set out above, I propose to make the following orders:

1. Order that the first and second defendant pay the plaintiff’s costs of the notice of motion filed 15 March 2024.

2. Order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the plaintiff:

1. is entitled to a specific gross sum (including interest under s 101(4) of the Civil Procedure Act 2005 (NSW)) in respect of the plaintiff’s costs of the proceedings in the total amount of $2,705,470.27.

2. is entitled to a specific gross sum (including interest under s 101(4) of the Civil Procedure Act 2005 (NSW)) in respect of the plaintiff’s costs of the Notice of Motion filed on 15 September 2022 in the total amount of $350,012.99.

3. All exhibits to be returned.

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Amendments

05 August 2024 - Order 2 amended to reflect form of consent orders provided by parties.

Decision last updated: 05 August 2024