| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S CI 2016 04256
| HUA LI | Plaintiff |
| v | |
| JOHN HONG PING SO | Defendant |
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JUDGE: | CROFT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Written submissions made on 30 August 2019 and 6 September 2019 |
DATE OF JUDGMENT: | 4 October 2019 |
CASE MAY BE CITED AS: | Li v So (No 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 655 |
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COSTS – Judgment for the defendant – Whether plaintiff should pay costs on an indemnity basis – Whether allegations of forgery or procurement of forgery made without proper basis – Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 – Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237 – MacFayden & Ellis v Bank of Queensland Ltd [2015] VSC 20 – Supreme Court (General Civil Procedure) Rules 2015, rr 63.31, 63.28 – Supreme Court Act 1986, s 24.
Whether allegations of forgery or procurement of forgery were a calculable proportion of the hearing time – Whether forgery or procurement of forgery can be separated out from suite of improper conduct claimed – Jeans v Bruce [2004] NSWSC 758.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. McClelland QC and Mr A. M. Christophersen | HWL Ebsworth Lawyers |
| For the Defendant | Mr M. S. Osborne QC and Mr D. McAloon | B2B Lawyers |
HIS HONOUR:
On 26 August 2019, I published my reasons for judgment in this matter.[1] I found for the defendant. The defendant now seeks an order that his costs in this proceeding, including all reserved costs, be taxed on an indemnity basis.
[1]Li v So [2019] VSC 515 (“Reasons”).
Section 24 of the Supreme Court Act 1986 accords the Court broad discretion to award costs. Rule 63.31 of the Supreme Court (General Civil Procedure) Rules 2015 confirms that the standard basis of taxation is the usual basis of taxation. The bases of taxation provided for at rule 63.28 include the taxation of costs on “the indemnity basis”.
Justice Harper in Ugly Tribe Co Pty Ltd v Sikola[2] relevantly summarised grounds that would justify a departure from ordering costs other than on the standard basis:[3]
7 In seeking costs on an indemnity basis, the first defendant is asking the Court to depart from its usual course: Spencer v Dowling.[4] Special circumstances must be present to justify such a departure: Australian Electoral Commission v Towney (No. 2).[5] These include:
(i)The making of an allegation, known to be false, that the opposite party is guilty of fraud: Fountain Selected Meats (Sales) Pty. Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397.
…
8 The categories of special circumstances…
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- AGLC
- Li v So (No 2) [2019] VSC 655
- Case
- [2019] VSC 655
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were twofold: first, whether the allegations of forgery or procurement of forgery were a significant proportion of the hearing time; and second, whether these allegations could be separated from the suite of improper conduct claims. The court was tasked with considering the precedents set by cases such as Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, and MacFayden & Ellis v Bank of Queensland Ltd [2015] VSC 20, as well as the relevant rules under the Supreme Court (General Civil Procedure) Rules 2015 and the Supreme Court Act 1986.
The court examined the nature of the allegations made by Li and found that they did not constitute a calculable proportion of the hearing time. Additionally, the court held that the allegations of forgery or procurement of forgery could not be separated from the broader claims of improper conduct. The court referred to the decision in Jeans v Bruce [2004] NSWSC 758 to support its reasoning. As a result, the court determined that Li should not be ordered to pay costs on an indemnity basis.
The final orders of the court were that Li was not to pay costs on an indemnity basis to the defendant, So.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
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