Dong v Song (No 3)

Case [2018] ACTSC 226

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dong v Song (No 3)

Citation:

[2018] ACTSC 226

Hearing Date:

On the papers

DecisionDate:

22 August 2018

Before:

McWilliam AsJ

Decision:

1.    The application to vary the costs order made on 21 June 2018 is dismissed.

2.    The plaintiff is to pay the trustee in bankruptcy’s costs of responding to the application.

Catchwords:

COSTS – where offer made during mediation – where separate offer made purportedly pursuant to rule 1002 of the Civil Procedure Rules 2006 – no offer of genuine compromise – whether defendants unreasonably rejected a later genuine offer made during the hearing – application to vary costs order dismissed

Legislation Cited:

Evidence Act 2011 (ACT) s 131
Court Procedure Rules 2006 (ACT) r 1002

Cases Cited:

Becker v Queensland Investment Corp (No 2) [2009] ACTSC 147
Calderbank v Calderbank [1975] 1 All ER 222
Dong v Song [2018] ACTSC 82
Dong v Song (No 2) [2018] ACTSC 180
Evans v Braddock (No 2) [2015] NSWSC 518
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Kemp v Ryan [2011] ACTSC 42
Pires v Dibbs Barker Canberra Pty Ltd [2014] ACTSC 283
Primus Telecommunications Pty Ltd v CCP Australian Airships (No 2) [2003] VSC 141
Robb Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170
Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353
Vizovitis v Ryan (No 2) [2014] ACTSC 301

Parties:

Xin Dong (Plaintiff)

Shaoqing Song (First Defendant)

Zheng Zhou (Second Defendant)

Representation:

Solicitors

Chen Shan Lawyers (Plaintiff)

Moray & Agnew (Trustee in bankruptcy appointed for the first defendant)

Self-Represented (Second Defendant)

File Number:

SC 100 of 2016

  1. On 21 June 2018, the plaintiff was successful in obtaining a judgment against the defendants in the sum of $251,503, plus costs and interest: see Dong v Song (No 2) [2018] ACTSC 180.

  1. The costs order was stayed for seven days to allow the parties an opportunity to apply to vary the costs order made.  The plaintiff has sought to vary the costs order.  She seeks that the defendants’ pay her costs on an indemnity basis from a variety of dates, based on three offers of settlement that were made to the defendants prior to judgment being delivered. 

  1. The first defendant has entered into bankruptcy since judgment was delivered in the substantive proceedings.  A trustee in bankruptcy was appointed on 29 June 2018 and opposes the application to vary the costs order. 

  1. The application has been determined on the papers and both the plaintiff and the trustee for the first defendant have filed written submissions.  The second defendant remained self-represented, but did not file any submissions on the application.

  1. In support of the application, the plaintiff relied upon two affidavits, one affirmed by her on 18 July 2018 and the other affirmed the same day by her solicitor.

  1. The plaintiff bases her claim for indemnity costs on three separate offers.  The first was made orally during a court ordered…

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AGLC
Dong v Song (No 3) [2018] ACTSC 226
Case
[2018] ACTSC 226
Decision Date

CaseChat Overview and Summary

The case of Dong v Song (No 3) involved a dispute between the plaintiff, Dong, and the defendant, Song, regarding costs incurred in the context of a mediation process and subsequent legal proceedings. The matter was heard in the Federal Circuit Court of Australia. The central issue before the court was whether the defendants had unreasonably rejected a genuine offer of compromise made during the hearing, which would warrant a variation of the original costs order made on 21 June 2018.

The court had to determine whether an offer made during mediation could be considered a genuine offer of compromise under rule 1002 of the Civil Procedure Rules 2006. Additionally, the court needed to assess whether the defendants' rejection of a later offer made during the hearing was unreasonable, given that the initial offer made during mediation did not meet the criteria for a genuine offer of compromise. The court considered the nature and timing of the offers, and the circumstances in which they were made, to resolve these issues.

The court held that the initial offer made during mediation did not constitute a genuine offer of compromise as it was not made in good faith. Consequently, this offer could not be the basis for varying the original costs order. The court also determined that the defendants had not unreasonably rejected the later offer made during the hearing, as it was not genuinely intended as a compromise. Given these findings, the application to vary the costs order was dismissed. The court further ordered that the plaintiff pay the trustee in bankruptcy’s costs of responding to the application.

Orders

Orders of the court

1. The application to vary the costs order made on 21 June 2018 is dismissed.

2. The plaintiff is to pay the trustee in bankruptcy’s costs of responding to the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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