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Gemi 193 v Zhu

Gemi 193 v Zhu

Case [2025] NSWSC 295 31 March 2025

Costs

Calderbank Letter

Specific Performance

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Gemi 193 v Zhu [2025] NSWSC 295
Hearing dates: 14 November 2024 and further written submissions on 13 December 2024
Date of orders: 31 March 2025
Decision date: 31 March 2025
Jurisdiction: Equity
Before: Slattery J
Decision:
See paragraph [57]

Catchwords:
COSTS – Party/Party – Orders when proceedings involve multiple parties – the plaintiff fails in proceedings against the defendant – the defendant cross claims against the plaintiff and another party – the defendant/cross claimant fails against the other party but succeeds against the plaintiff on the Cross-Claim and on the Defence – what costs orders should be made between the parties – whether a pre-hearing letter sent by the defendant cross claimant has Calderbank letter consequences – what specified gross sum costs order should be made instead of assessed costs.

Legislation Cited:
Civil Procedure Act 2005 Part 6 and s 98(4)(c)

Cases Cited:
A v N [2012] NSWSC 549
Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006
Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119
Carelli v FS Architects Pty Ltd (No. 2) [2008] NSWCA 205
Castro v Hillery [2003] 1 Qd R 651; [2002] QCA 359
Chaina v Alvaro Homes Pty Limited [2008] NSWCA 353
Currabubula Holdings Pty Ltd v State Bank [2000] NSWSC 232
Equity 8 Pty Limited v Shaw Stockbroking Limited [2007] NSWSC 503
Evans Shire Council v Richardson (No. 2) [2006] NSWCA 61
Gemi 193 Pty Ltd v Zhu [2024] NSWSC 1113
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) (2005) 13 VR 435; [2005] VSC 298
King Network Group Pty Ltd v Club of the Club's Pty Ltd (No 2) [2009] NSWCA 204
Leichhardt Municipal Council v Green [2004] NSWCA 341
Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344
Nationwide News Pty Limited v Naidu; ISS Security Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377
Ofria v Cameron (No. 2) [2008] NSWCA 242
Penson v Titan National Pty Ltd (No.3) [2015] NSWCA 121
Rockcote Enterprises Pty Limited v FS Architects Pty Limited (No. 2)
Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Co Pty Limited (2001) 53 NSWLR 626; [2001] NSWCA 461
Simone Starr-Diamond v Talus Diamond (No. 4) (2013) 272 FLR 414; (2013) 224 A Crim R 523; [2013] NSWSC 811
South Eastern Sydney Area Health Service v King [2006] NSWCA 2
Vale v Eggins (No. 2) [2007] NSWCA 12
Wardle v Agricultural and Rural Finance Pty Ltd [(No. 2) [2012] NSWCA 388

Texts Cited:
N/A

Category: Costs
Parties: Plaintiff/Cross Defendant: GEMI 193 Pty Ltd (ACN 641 815 492)
Second Cross Defendant: Justin Epstein
First Defendant/Cross Claimant: Xian Zhu
Second Defendant: Commonwealth Bank of Australia ACN 123 123 124
Representation:
Counsel:
Plaintiff/Cross Defendant:…

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 Gemi 193 v Zhu

Details

AGLC: Gemi 193 v Zhu [2025] NSWSC 295
Case: [2025] NSWSC 295
Decision Date: 31 March 2025

CaseChat Overview and Summary

Gemi 193 v Zhu involved a dispute in the Federal Circuit Court of Australia concerning contractual obligations and related damages. The plaintiff, Gemi 193, alleged breaches by the defendant, Zhu, and sought damages. Zhu, in turn, cross-claimed against the plaintiff and another party, asserting his own claims. The plaintiff was unsuccessful in its proceedings against Zhu, while Zhu failed in his claims against the other party but succeeded against the plaintiff on both the cross-claim and his defence. The court was tasked with determining the appropriate costs orders given the mixed outcomes of the proceedings, particularly considering the implications of a pre-hearing letter sent by Zhu.

The court needed to resolve whether the pre-hearing letter sent by Zhu had any Calderbank letter consequences, which would impact the usual approach to costs. Additionally, the court had to determine the appropriate specified gross sum costs order to replace the assessed costs. The court considered the principles of costs in party/party cases, the conduct of the parties, and the outcomes of the claims and cross-claims. It had to balance the respective successes and failures of each party in making a fair and just costs order.

The Federal Circuit Court concluded that the pre-hearing letter did not have Calderbank letter consequences, meaning that it did not qualify as a genuine offer to settle that could influence the costs order. The court found that Zhu was entitled to costs from the plaintiff for the successful defence and cross-claim. The court also considered the appropriate specified gross sum costs order, taking into account the complexity of the case and the outcomes achieved by each party. The court ultimately ordered that Zhu was to receive a specified gross sum of costs from the plaintiff, reflecting the mixed results of the proceedings.

The final orders of the court included a specified gross sum costs order in favour of Zhu against the plaintiff, reflecting the outcomes of the claims and cross-claims. The court also noted that the specified gross sum was intended to be a fair reflection of the work involved and the results achieved by each party in the proceedings.

Orders