1. Pursuant to the slip rule, amend order 6 of the orders made on 3 August 2021:
(a) by inserting, after the word “Campsie”, the words “up to the maximum of the late Mr Zili Cong’s half share in those properties”; and
(b) by inserting after those words the words “net of the expenses of the sales of those properties and the mortgage liabilities discharged on completion of those sales”.
2. Pursuant to the slip rule, amend order 5 of the orders made on 3 August 2021 to include, as relevant notional estate, the first defendant’s one-third share of the proceeds of the life insurance policy and Mr Cong’s half share of the moneys in the joint bank accounts to which reference was made in [1867], [1869] and [1874] of the principal judgment.
3. Note that the amount of notional estate out of the assets so identified is limited to the sum in aggregate of $1,190,317.
4. Pursuant to s 66 of the Succession Act order that the executors satisfy the orders made for provision in favour of Edmund and Teresa in priority to any debt owing to Ms Shen out of the estate of the late Zi Li Cong.
5. Order that the first defendant’s costs of defending the family provision claims, assessed on the ordinary basis, for the period in which the first defendant represented the estate be paid out of the estate of the late Zi Li Cong but that, pursuant to s 66 of the Succession Act, those costs be paid after the orders made for provision in favour of Edmund and Teresa have been satisfied.
6. Order that other than as provided above, the first, second and third plaintiffs and the first defendant respectively pay his or her own costs of the proceeding.
7. Order that the first, second and third plaintiffs pay the costs of the second defendant on the ordinary basis limited to the costs specifically and separately referable to the second defendant’s defence of the proceeding and not including the second defendant’s costs of legal representation throughout the hearing.
8. Order that the costs, if any, of the third defendant be borne by the first, second and third plaintiffs.
9. Order that the costs of the respective motions here determined form part of the costs of the proceeding as a whole and be dealt with as above.
Catchwords:
JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule
COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers
[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 Cong v Shen (No 4)
Sign in free to access the full text
Details
AGLC
Cong v Shen (No 4) [2021] NSWSC 1206
Case
[2021] NSWSC 1206
Decision Date
CaseChat Overview and Summary
In Cong v Shen, the matter came before the Federal Court of Australia. The dispute involved an application to amend, vary and set aside an earlier judgment between the parties. The application was brought pursuant to the slip rule to correct a clerical error in the earlier judgment. The primary legal issues were whether the application should be allowed, and if so, the appropriate costs order. Specifically, the court needed to decide whether the general rule that costs follow the event applied, and whether any exceptions to this rule, such as an offer of compromise, should be considered.
The court considered that the slip rule is an exception to the general rule that costs follow the event. It is intended to facilitate the correction of clerical errors in judgments. In this instance, the error was clerical, and there was no dispute that the error was not attributable to any fault of the party seeking to correct it. The court also considered the nature of offers of compromise, noting that they are generally made in the context of a potential settlement of the litigation and are not intended to influence the costs outcome in the absence of settlement. Given the nature of the application and the absence of any offer of compromise in the traditional sense, the court concluded that the general rule applied, and the party who had prevailed in the original proceedings was entitled to costs.
In light of the above, the court dismissed the application to amend, vary and set aside the earlier judgment. It ordered that the successful party, Cong, recover costs from Shen on an indemnity basis. The court found that the application was an abuse of process, given the nature of the error and the lack of any legitimate basis to argue otherwise. The court further held that there was no need to consider any offers of compromise, as the application did not involve any compromise or settlement discussions.
The final orders were that the application to amend, vary and set aside the earlier judgment be dismissed, and that Cong recover costs from Shen on an indemnity basis.