Fan v Han (No. 2) - [2016] NSWSC 1651

Supreme Court

New South Wales

Medium Neutral Citation: Fan v Han (No. 2) [2016] NSWSC 1651
Hearing dates: 16 November 2016
Decision date: 16 November 2016
Jurisdiction: Equity
Before: White J
Decision:
Order that the first defendant pay three-quarters of the plaintiff's costs of the proceedings up to and including 16 September 2016, and pay the plaintiff's costs of the proceedings on the indemnity basis thereafter.

Catchwords: PRACTICE AND PROCEDURE — costs — plaintiff succeeded on one of two alternative bases — alternative bases did not give rise to severable issues — no alternative basis dominant over another — defendant enjoyed a measure of success on cross claim — plaintiff made an offer of compromise — offer of compromise included term that all existing cost orders made in the proceedings be vacated — defendant did not accept offer of compromise — whether plaintiff entitled to an order that the defendant pay costs on the indemnity basis — plaintiff obtained judgment no less favourable to the plaintiff than the terms of the offer — whether offer valid under r 20.26 of the Uniform Civil Procedure Rules 2005 not decided — offer valid as a Calderbank offer — defendant did not act reasonably in rejecting the plaintiff’s offer — defendant to pay 80 per cent of plaintiff’s costs up to the date on which the offer of compromise was made and pay plaintiff’s costs on the indemnity basis thereafter
Legislation Cited: Family Law Act 1975 (Cth)
Cases Cited: Fan v Han [2016] NSWSC 1488
Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) [2015] NSWCA 208
Reitano v Reitano [2012] NSWSC 1127
Category: Costs
Parties: Yi Jun Fan (Plaintiff)
Rui Han (First Defendant)
Representation:
Counsel:
A Macauley (Plaintiff)
A Gruzman (First Defendant)
Solicitors:
Du & Associates Lawyers (Plaintiff)
Di Lizio & Associates (First Defendant)

File Number(s): 2012/151309

Judgment

HIS HONOUR: This judgment concerns what costs orders should be made consequent upon my judgment of 25 October 2016 (Fan v Han [2016] NSWSC 1488). Following delivery of those reasons, I have today made a declaration that Ms Han holds the Auburn property on trust as to a 33.1 per cent share for Mr Fan and I have made orders for the payment of moneys that had been paid into court to both Mr Fan and Ms Han subject to an adjustment of $4,911.13 in favour of Mr Fan to reflect my conclusions at paras 92(b) and 92(d) of my reasons.
Mr Fan recognises that as Ms Han has enjoyed a measure of success on her cross claim having obtained in effect judgment for $20,091.51, which is set off against Mr Fan’s entitlement to contribution from her, that some discount should be applied to the costs which Mr Fan submits he is entitled to as the successful party.
He submits that the appropriate discount would be 20 per cent and should apply only up to 16 September 2016. From that date Mr Fan seeks costs on the indemnity basis pursuant to…

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 Fan v Han (No. 2)

Details

AGLC: Fan v Han (No. 2) [2016] NSWSC 1651
Case: [2016] NSWSC 1651
Decision Date: 16 November 2016

CaseChat Overview and Summary

In the matter of Fan v Han (No. 2), the parties were in dispute over issues related to property and costs in the Supreme Court of New South Wales. The court was tasked with determining the legal issues surrounding the costs incurred during the proceedings, particularly whether the plaintiff was entitled to an order for costs on the indemnity basis.

The primary legal issue was whether the plaintiff was entitled to an order that the defendant pay costs on the indemnity basis. The plaintiff argued that they had made an offer of compromise to the defendant, which included a term that all existing cost orders made in the proceedings be vacated. The defendant did not accept this offer. The court had to determine whether the plaintiff was entitled to an order for indemnity costs given the unsuccessful outcome of the offer of compromise. The court also considered whether the offer of compromise was valid under rule 20.26 of the Uniform Civil Procedure Rules 2005 and if it qualified as a Calderbank offer. Additionally, the court assessed whether the defendant had acted reasonably in rejecting the plaintiff’s offer.

The court found that the plaintiff's offer of compromise was valid as a Calderbank offer and that the defendant had not acted reasonably in rejecting it. Consequently, the court ordered that the defendant pay 80 per cent of the plaintiff's costs up to the date on which the offer of compromise was made and pay the plaintiff’s costs on the indemnity basis thereafter. This decision highlights the importance of evaluating the reasonableness of a party's conduct in relation to offers of compromise and the potential consequences for costs in such situations.

Orders