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: 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 124Representation: Counsel:
Plaintiff/Cross Defendant:…
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- AGLC
- Gemi 193 v Zhu [2025] NSWSC 295
- Case
- [2025] NSWSC 295
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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