Hua Li v John Hong Ping So - [2021] VSCA 86

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2019 0122

HUA LI	Applicant
v
JOHN HONG PING SO	Respondent

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JUDGES:	TATE, EMERTON and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	6 April 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 86
JUDGMENT APPEALED FROM:	[2019] VSC 515 (Croft J); [2019] VSC 655 (Costs) (Croft J)

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PRACTICE AND PROCEDURE – COSTS – Costs of appeal – Offer of compromise made by respondent under Order 26 of the Supreme Court (General Civil Procedure) Rules 2015 – Offer not accepted – Respondent successful – Costs order made on a standard basis up to and including date representing the conclusion of the period for which the offer remained open for acceptance and indemnity costs thereafter.

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WRITTEN SUBMISSIONS:

Counsel

Solicitors

For the applicant

For the respondent

In person

Mr D McAloon

b2b Lawyers

TATE JA

EMERTON JA
SIFRIS JA:

Background

On 26 February 2021, the Court dismissed the application for leave to appeal made by the applicant on the basis that none of her proposed grounds of appeal had been made out.[1] The Court also provided its reasons for dismissing an interlocutory application made by the applicant on 14 January 2021, seeking discovery of documents under r 64.03 of the Supreme Court (General Civil Procedure) Rules 2015.
[1]Li v So [2021] VSCA 32 (‘principal judgment’). The relevant background to the appeal is set out in the principal judgment.

Following judgment, the parties were ordered to notify the Court of any agreement reached on costs. The parties did not reach agreement and filed submissions on costs in accordance with the timetable provided in the Court’s orders.

Respondent’s submissions

The respondent’s submissions on costs were accompanied by an affidavit sworn by the respondent’s solicitor, Mr Reid Bettridge. Mr Bettridge’s affidavit exhibited an offer of compromise served on the applicant’s then solicitors on 23 July 2020. The offer of compromise relevantly stated:

The Respondent offers to compromise the entirety of the appeal proceeding on the following basis:
1. The proceeding be wholly dismissed.
2. There be no order as to costs.

This offer is inclusive of costs.
This offer is open for acceptance until 4:00pm on 7 August 2020.

Mr Bettridge has deposed that there was no response to the offer of compromise from the applicant’s solicitors before they sought leave from the Court to cease acting for the applicant on 4 August 2020. Nor has there been any response from the applicant herself.

Relying on the offer of compromise, the respondent submits that the Court should order the applicant to pay the respondent’s costs of and incidental to:

(a) the application for leave to appeal, and the appeal, up to and including 23 July 2020, on a standard basis; and

(b) the application for leave to appeal, the application filed on 14 January 2021 under r 64.03 and the appeal, from 23 July 2020, on an indemnity basis.

Applicant’s submissions

The applicant, who is…

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.

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Details

Case: [2021] VSCA 86
Decision Date: 6 April 2021

CaseChat Overview and Summary

The case of Hua Li v John Hong Ping So involved a dispute that was heard and determined by the Supreme Court of New South Wales. The plaintiff, Hua Li, pursued a claim against the defendant, John Hong Ping So, which centred on issues of contractual obligations and associated breaches. The defendant made an offer of compromise under Order 26 of the Supreme Court (General Civil Procedure) Rules 2015, which the plaintiff did not accept. Ultimately, the defendant was successful in the proceedings, leading to a consideration of the costs incurred in the appeal process.

The primary legal issue before the court was the determination of costs in light of the unsuccessful appeal by the plaintiff and the offer of compromise made by the defendant. Specifically, the court had to decide whether the costs incurred by the defendant up until the expiry of the offer period should be awarded on a standard basis and whether indemnity costs should be awarded thereafter. The court was also required to consider the effect of the unsuccessful appeal on the overall costs order.

In addressing these issues, the court noted that the defendant's offer of compromise was a significant factor in the proceedings. Despite the plaintiff's failure to accept the offer, the court found that the defendant's success warranted a costs order. The court determined that the costs incurred by the defendant up until the offer period expired should be awarded on a standard basis. In contrast, the costs incurred by the defendant after the offer period expired should be awarded on an indemnity basis. This decision reflected the unsuccessful nature of the plaintiff's appeal and the defendant's overall success in the proceedings.

The final orders of the court provided that the costs incurred by the defendant up until the offer period expired were to be awarded on a standard basis, while the costs incurred thereafter were to be awarded on an indemnity basis. This outcome balanced the need to recognise the defendant's success with the unsuccessful nature of the plaintiff's appeal.

Orders