Eun Ju Park v Chong Eun Yi as executor of the late Young Ja Yi (No 2)

[2024] NSWSC 372

Supreme Court

New South Wales

Medium Neutral Citation:

Eun Ju Park v Chong Eun Yi as executor of the late Young Ja Yi (No 2) [2024] NSWSC 372

Hearing dates:

On the papers

Date of orders:

11 April 2024

Decision date:

11 April 2024

Jurisdiction:

Common Law

Before:

Elkaim AJ

Decision:

1. Order ‘3’ of the orders made on 22 March 2024 is vacated.

2. Each party is to pay its own costs of the proceedings up to and including 11 May 2023.

3. The defendant is to pay the plaintiff’s costs of the proceedings from 12 May 2023, those costs to be assessed on an indemnity basis.

Catchwords:

COSTS – Courts discretion – Application for alternative costs order – Offer of compromise – Change in plaintiff’s case on filing of amended statement of claim – Alternative costs order granted – No costs order up to 11 May 2023 – Costs thereafter in plaintiffs favour to be assessed on an indemnity basis

Legislation Cited:

Conveyancing Act 1919 (NSW); s 38

Uniform Civil Procedure Rules 2005 (NSW), r 20

Cases Cited:

Eun Ju Park v Chong Eun Yi as executor of the late Young Ja Yi [2024] NSWSC 294

Category:

Costs

Parties:

Eun Ju Park (Plaintiff)
Chong Eun Yi as executor of the late Young Ja Yi (Defendant)

Representation:

Counsel:
Mr L Ellison SC (Plaintiff)
Ms N Bailey (Defendant)

Solicitors:
Strathfield Law (Plaintiff)
Uther Webster & Evans (Defendant)

File Number(s):

2022/130757

Publication restriction:

Nil

JUDGMENT

1. I delivered my primary judgment in this matter on 22 March 2024 (Eun Ju Park v Chong Eun Yi as executor of the late Young Ja Yi [2024] NSWSC 294). I gave judgment for the plaintiff in the sum of $537,500 and dismissed the cross-claim. I ordered the defendant to pay the plaintiff’s costs of the proceedings but left open the option of an alternative costs order.

2. The plaintiff has requested an alternative order. The plaintiff has submitted that the costs order should be that the defendant pay her costs but that the costs be assessed on an indemnity basis from 19 April 2023.

3. The reason behind the plaintiff’s requested order is that the plaintiff’s solicitors served two offers of compromise on the defendant’s solicitors. Both offers were made pursuant to r 20 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) and neither was accepted.

4. The first offer was made on 18 April 2023. The plaintiff offered to accept a judgment in her favour in the sum of $300,000, together with the cross-claim being dismissed and her costs being paid on an indemnity basis out of the estate of the deceased.

5. The second offer was made on 20 December 2023. The plaintiff offered to accept $220,000 and that there be no order as to her costs.

6. There can be little doubt that the plaintiff did better under my orders compared to the two offers.

7. The defendant does not dispute that the plaintiff did better, nor does the defendant challenge any technical aspect of the offers of compromise. Nevertheless, the defendant submitted that:

1. The plaintiff should not receive any costs prior to 12 May 2023; and

2. Any indemnity costs order should not commence until 12 May 2023.

8. The defendant based the above submissions on the following:

1. the statement of claim, filed on 6 May 2022, alleged that the plaintiff was entitled to $300,000 plus interest of $200,000 arising from the terms of a deed made between the plaintiff and her mother (the deceased) on 13 July 2017;

2. the defence asserted that the document executed on 13 July 2017 was not a deed;

3. it was not a deed as it did not conform with s 38 of the Conveyancing Act 1919 (NSW) because the signatures of the parties had not been witnessed;

4. it was only in the amended statement of claim, filed on 12 May 2023 that, as an alternative, it was pleaded that the parties had entered a binding agreement on 13 July 2017, albeit not a deed; and

5. the plaintiff ultimately succeeded on the basis of the document being an agreement, but not a deed.

9. I note that although the plaintiff’s opening written submissions, filed before the hearing, maintained the assertion that there was a valid “Deed (or loan agreement)”, it was only during opening oral submissions that it was conceded that the document was not a deed.

10. Given the wide discretion I have in respect of costs, but accepting that the discretion is bound by the requirements of justice between the parties, I think the defendant’s argument is sound. There was never a valid argument that the agreement was a deed. Until the filing of the amended statement of claim, to the extent that the claim was based on the agreement being a deed, the defendant had a sound defence.

11. I think the defendant’s suggested orders are appropriate because it was not until the filing of the amended statement of claim that the defendant was in a position where it should have recognised the validity of the claim.

12. I make the following orders:

1. Order ‘3’ of the orders made on 22 March 2024 is vacated.

2. Each party is to pay its own costs of the proceedings up to and including 11 May 2023.

3. The defendant is to pay the plaintiff’s costs of the proceedings from 12 May 2023, those costs to be assessed on an indemnity basis.

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Decision last updated: 11 April 2024