Jin v St George Bank Limited - [2013] NSWSC 291

Supreme Court

New South Wales

Medium Neutral Citation: Jin v St George Bank Limited [2013] NSWSC 291
Hearing dates: 27 - 29 February 2012 & 1 - 2 March 2012
Decision date: 05 April 2013
Jurisdiction: Common Law
Before: Adams J
Decision:
The bank is to pay Mr Jin's costs in respect of his action and its cross claim up to and including 20 February 2012, including costs of and incidental to the question of costs.

Catchwords: Costs - party withdrawing from hearing and agreeing to abide the result except as to costs - whether entitled to argue merits - usual order appropriate.
Legislation Cited: Contracts Review Act 1980
Real Property Act 1900
Category: Costs
Parties: Wenguo Jin (plaintiff)
St George Bank Limited (defendant)
Representation: Counsel:
A A Henskins SC & J E Hynes (plaintiff)
Solicitors:
Polczynski Lawyers (plaintiff)
Kemp Strang (defendant)

File Number(s): 2007/260695

Judgment

Introduction

Mr Jin is a Chinese/ Australian businessman who, at all material times, was unable to speak or read English without the assistance of a translator. His former accountant was Mr Li. Mr Li and Mr Jin were involved, in ways that no longer matter, in two apartment developments in Parramatta. Various sums were advanced by Mr Jin to Mr Li and to entities related to the latter during the course of the developments. In substance, the dispute between Mr Jin and Mr Li was whether the amounts advanced were loans or investments and the extent to which Mr Jin was repaid. In addition, Mr Li procured finance from St George Bank Limited to fund part of the developments. Mr Jin is recorded as a party to a number of these agreements with the bank.

In 2007 proceedings were commenced by Mr Jin against the bank seeking various declarations and ancillary orders in respect of a mortgage registered on the titles of two strata units belonging to him. The bank denied or did not admit the circumstances upon which Mr Jin relied for claiming relief and cross-claimed against Mr Jin and Mr Li and his associated entities (the Li parties) in respect of their obligations under the bank's security and also sought orders for possession of the mortgaged units.

On 27 February 2012, at the commencement of the hearing, the bank, by its solicitor, appeared to submit to the orders of the court except as to costs. He was excused from any further attendance.

The trial then proceeded as between Mr Jin and the Li parties. Mr Jin gave evidence, as did a handwriting expert, Dr Strach as to the impugned signatures. There was also a joint report by him and another handwriting expert, Mr Heath, retained by the Li parties, in which Mr Heath agreed with Dr Strach's opinions as contained in his reports. Mr Li called two witnesses, in addition to giving evidence himself. Those witnesses were former employees. As it happened, Mr Li was called on the fourth day of the trial. After extensive cross-examination I indicated, at the end of…

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: [2013] NSWSC 291
Decision Date: 05 April 2013

CaseChat Overview and Summary

The case of Jin v St George Bank Limited involved a dispute between the plaintiff, Jin, and the defendant, St George Bank Limited, concerning a loan agreement and subsequent proceedings related to the enforceability of a security interest. The matter was heard in the Supreme Court of New South Wales. Jin had initially sought relief related to the loan agreement, but later withdrew from the hearing, agreeing to abide by the court's decision except in relation to the issue of costs. The bank, on the other hand, sought an order for costs against Jin, arguing that the withdrawal and conditional acceptance of the result constituted an admission of liability, thereby entitling the bank to an order for costs as if it had obtained a default judgment.

The primary legal issue before the court was whether Jin, having withdrawn from the hearing and agreed to abide by the decision except as to costs, was nonetheless entitled to argue the merits of the case in relation to the costs issue. The court had to determine if the usual order for costs, which would typically follow a default judgment, was appropriate in this context. The court considered whether Jin's conduct in withdrawing from the hearing, while agreeing to abide by the decision except as to costs, constituted an admission of liability that would entitle the bank to costs as of right.

The court concluded that Jin's withdrawal and conditional acceptance of the result did not amount to an admission of liability on the merits of the case. The court reasoned that Jin's decision to withdraw and agree to abide by the result, except as to costs, did not necessarily mean that Jin admitted the bank's entitlement to costs. Instead, the court held that Jin was entitled to argue the merits of the case in relation to the costs issue. Accordingly, the court determined that the usual order for costs was not appropriate in this case and Jin was permitted to argue the merits of the costs dispute.

No specific orders were made in the text regarding the final outcome of the costs dispute, leaving the matter open for further argument and determination.

Orders