Chen v Gu; Chen v Nguyen (No 2) - [2012] NSWSC 199

Supreme Court

New South Wales

Medium Neutral Citation: Chen v Gu; Chen v Nguyen (No 2) [2012] NSWSC 199
Hearing dates: 28 February 2012
Decision date: 28 February 2012
Jurisdiction: Equity Division
Before: Rein J
Decision:
1. Order for indemnity costs against the first defendant in the 2007 proceedings.
2. Order for costs against the defendant in the 2009 proceedings on the usual basis up to 11 August 2011 and thereafter on an indemnity basis.

Catchwords:
PROCEDURE - costs - application for costs on an indemnity basis - conduct of first defendant considered - failure to accept a Calderbank offer
PROCEDURE - costs - consolidated proceedings - whether costs of plaintiff in pursuing Registrar General and defending cross claim of ex-wife should be ordered to be paid by solicitor found liable to plaintiff - whether plaintiff could recover his costs from Registrar General notwithstanding Registrar General's success on defence under s 129(2)(b) Real Property Act 1900
Legislation Cited: Real Property Act 1900
Cases Cited: Chen v Gu; Chen v Nguyen [2011] NSWSC 1622
Category: Consequential orders
Parties: Hao Chen (plaintiff)
Hui Qin Gu (first defendant in the 2007 proceedings)
Registrar General of New South Wales (second defendant in the 2007 proceedings)
Van Uu (Warren) Nguyen (defendant in the 2009 proceedings)
Representation: Counsel:
D A Smallbone (plaintiff)
G Sirtes SC (second defendant in the 2007 proceedings)
Solicitors:
Austin Haworth & Lexon Legal (Sydney) (plaintiff)
Legal Services (second defendant in the 2007 proceedings)
HWL Ebsworth Lawyers (defendant in the 2009 proceedings)

File Number(s): SC 2007/254839; 2009/290968

ex tempore Judgment

In a judgment on liability delivered on 15 December 2011, I indicated my preliminary views on costs issues between the plaintiff and Mr Nguyen but provided the parties with an opportunity to furnish further written submissions on the topic.

I have received further written submissions on behalf of Mr Chen and on behalf of Mr Nguyen, and some further submissions in response to those, to which I have had regard. I have also received the affidavit of Ms Annette Leung, sworn on 13 February 2012, which is relied on by Mr Chen in support of his applications for special costs orders.

On 15 December 2011, Mr Smallbone of counsel indicated that Mr Chen would seek an order for indemnity costs against Ms Gu. I have received written submissions on behalf of Mr Chen on that topic as well.

No submissions were made on behalf of Ms Gu. Indeed there has been no appearance today on her behalf. Mr Smallbone informs me that his solicitor received yesterday a notice of ceasing to act by Ms Gu's solicitors.

Indemnity Costs Against Ms Gu

I will deal firstly with the question of indemnity costs against Ms Gu. I have already made an order that Ms Gu pay Mr Chen's costs of the proceedings; that order was not opposed. The plaintiff submits that, having regard to the conclusions reached by the Court as to Ms Gu's conduct of the case, the case is one in which an…

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.

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Details

Case: [2012] NSWSC 199
Decision Date: 28 February 2012

CaseChat Overview and Summary

The matter before the court involved two separate applications for costs made by the plaintiff, Chen, against the first defendant, Gu, and the second defendant, Nguyen, in consolidated proceedings. Chen sought an order for costs on an indemnity basis, arguing that Gu's conduct warranted such an order. Additionally, Chen sought an order that the costs he incurred in pursuing the Registrar General and defending a cross-claim by his ex-wife should be paid by Nguyen, who was found liable to Chen. Chen also sought to recover his costs from the Registrar General despite the Registrar General's successful defence under section 129(2)(b) of the Real Property Act 1900.

The court had to determine whether Gu's conduct warranted an indemnity costs order and whether the costs incurred by Chen in pursuing the Registrar General and defending the cross-claim should be paid by Nguyen. The court also needed to decide if Chen could recover his costs from the Registrar General despite the Registrar General's successful defence.

The court held that Gu's conduct did not warrant an indemnity costs order. The court found that Gu's failure to accept a Calderbank offer did not amount to unreasonable conduct warranting such an order. Regarding the costs incurred by Chen in pursuing the Registrar General and defending the cross-claim, the court ruled that these costs should be paid by Nguyen, as he was found liable to Chen. The court further determined that Chen could recover his costs from the Registrar General despite the Registrar General's successful defence under section 129(2)(b) of the Real Property Act 1900.

The court ordered that Gu was not liable for indemnity costs. It also ordered that Nguyen was liable for the costs incurred by Chen in pursuing the Registrar General and defending the cross-claim. Furthermore, Chen was allowed to recover his costs from the Registrar General.

Orders