Blecher v Zou (No 2) - [2024] NSWSC 224

Supreme Court

New South Wales

Medium Neutral Citation: Blecher v Zou (No 2) [2024] NSWSC 224
Hearing dates: On the papers (last submissions 22 February 2024)
Date of orders: 07 March 2024
Decision date: 07 March 2024
Jurisdiction: Equity
Before: Pike J
Decision:
Defendants are to pay 85% of the plaintiff’s costs of the proceedings, as assessed or agreed.

Catchwords:
PRACTICE AND PROCEDURE – costs – whether it was appropriate to commence proceedings in the Supreme Court – whether it was necessary to seek declaratory relief – whether successful plaintiff is entitled to costs where the amount in issue did not exceed $500,000

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Blecher v Zou [2024] NSWSC 70
Bushby v Dixon Holmes du Pont Pty Ltd (2010) 78 NSWLR 111
Wong v Maroubra Automotive Refinishers Pty Ltd [2015] NSWSC 364

Texts Cited:
Nil

Category: Costs
Parties: Yula Blecher (Plaintiff)
Chen Qing Zou (First Defendant) (Self-Represented)
Jing Shen (Second Defendant) (Self-Represented)
Representation:
Counsel: Mr Nicholas Allan (Plaintiff)
Self-represented (Defendants)
Solicitors: Ziman and Ziman Solicitors (Plaintiff)

File Number(s): 2023/00055040
Publication restriction: Nil

JUDGMENT

On 8 February 2024, I delivered judgment in these proceedings: see Blecher v Zou [2024] NSWSC 70 (Principal Judgment). These reasons assume familiarity with the Principal Judgment, and I continue the defined terms used in the Principal Judgment.
The primary relief ordered was:

The Court declares that of the funds held in escrow by Laing & Simmons Double Bay in respect of the sale of 26 Myuna Road, Dover Heights on or about 10 August 2022, the Plaintiff is entitled to $99,692 and the Defendants are entitled to $308.

The Court orders the parties to notify Laing & Simmons Double Bay to release the funds in accordance with the declaration set out at Paragraph 1 above.

The Court orders the Defendants to pay to the Plaintiff pre-judgment interest in the sum of $9,553.94.

It was not in dispute at the hearing before me that the proceedings concerned entitlements to the sum of $100,000 held in a trust account and that, in reality, the maximum amount in dispute was $45,291.46 (see [5] of the Principal Judgment). The ultimate outcome was that the plaintiff was entitled to $99,692 (plus interest) and the defendants entitled to $308.
At [102] of the Principal Judgment, I indicated that I proposed to give the parties an opportunity to be heard briefly in writing on the question of costs and would otherwise deal with the issue on the papers. This included whether any costs should be allowed having regard to UCPR r 42.34.
These reasons deal with the question of costs.
Pursuant to orders made in the Principal Judgment, the plaintiff relied on submissions as to costs dated 15 February 2024 and an affidavit of Derek Errol Ziman dated 7 February 2024 (Ziman Affidavit). That affidavit set out the relevant correspondence and communications in relation to attempted settlement of the proceedings and annexed certain offers. The…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Blecher v Zou (No 2)

Details

AGLC: Blecher v Zou (No 2) [2024] NSWSC 224
Case: [2024] NSWSC 224
Decision Date: 07 March 2024

CaseChat Overview and Summary

The appeal before the court was between Blecher and Zou. The dispute centred on the costs of proceedings, specifically whether it was appropriate for Blecher to commence the action in the Supreme Court, whether declaratory relief was necessary, and if Zou, as the successful party, was entitled to costs when the amount in issue did not exceed $500,000. The matter was heard in the Supreme Court of New South Wales. The issues that the court needed to decide were whether Blecher's decision to initiate the proceedings in the Supreme Court was justified, the necessity of seeking declaratory relief, and Zou's entitlement to costs despite the amount in dispute being below the threshold. The court considered the appropriateness of the forum chosen by Blecher, the necessity of declaratory relief in the circumstances, and the entitlement to costs under the relevant legislation, given the amount in issue.

The court found that Blecher's decision to commence the proceedings in the Supreme Court was not appropriate as the amount in dispute did not justify such a forum. The court held that the matter should have been commenced in the Local Court or the District Court, given the amount involved. Additionally, the court determined that seeking declaratory relief was not necessary as the facts and circumstances did not require such an order. Finally, regarding the costs, the court concluded that Zou, as the successful party, was not entitled to costs due to the amount in issue being below the threshold of $500,000. The court's reasoning was based on the statutory provisions governing costs in the Supreme Court and the procedural requirements for initiating proceedings in the appropriate court.

In light of the findings, the court made orders dismissing Blecher's application for costs and affirming Zou's position on this matter. The court also noted that Blecher should have commenced the action in a lower court due to the amount in dispute. The decision highlights the importance of selecting the appropriate court for the amount in issue and the consequences of initiating proceedings in an improper forum.

Orders