Lin v Lo - [2017] QSC 310

SUPREME COURT OF QUEENSLAND

CITATION:

Lin v Lo & Anor [2017] QSC 310

PARTIES:

CHIA-YI LIN

(applicant)

v
SOPHIA JUAN LO

(first respondent)
and
KONRAD LIN
(second respondent)

FILE NO:

10241 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

19 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Applegarth J

ORDER:

1. The first respondent pay the applicant’s costs of and incidental to the proceeding to be assessed on the indemnity basis.

2. There be no order as to the costs of the proceeding as between the first and second respondent.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where final judgment in applicant’s favour made by consent – whether costs should follow the event – whether costs should be assessed on the indemnity basis

Westpac Banking Corporation v Jamieson & Ors [2015] QCA 84, cited

COUNSEL:

N J Shaw for the applicant

The first respondent was self-represented
The second respondent was self-represented

SOLICITORS:

Christie Lawyers for the applicant

The first respondent was self-represented
The second respondent was self-represented

This proceeding was resolved when, after a lengthy interlocutory process and close to trial, the first respondent withdrew her opposition to the application, and both respondents consented to orders granting the applicant the relief she sought in her amended application. The parties agreed directions about the delivery of written submissions about costs.
The applicant seeks an order that the first respondent pay her costs of and incidental to the proceeding on the indemnity basis.
The applicant initially applied for the removal of a caveat lodged against a property of which she was the registered owner at the Gold Coast. The property was very valuable, and the first respondent resided in it. The first respondent refused to vacate the property, and her presence there prevented the applicant from selling it and granting vacant possession to a purchaser. The first respondent justified her remaining in the property on the basis of an alleged gift of the property to her by the second respondent. But the property was owned by the applicant who denied that the second respondent had any interest in it.
The matter originally came before me in the Applications List. Given that the first respondent was self-represented, I adjourned the matter with the strong suggestion that the parties reach a resolution of the matter which would enable the property to be sold. The alternative was to prejudice the applicant if there was a fall in the value of the property, or if the first respondent stayed in possession of it without paying the market rent.
The first respondent was initially self-represented. She engaged lawyers at some stage but was self-represented for most of the proceeding. The second respondent did not take an active part in the proceeding after he was subsequently joined. He was self-represented. He was joined because of allegations which the first respondent raised in respect of his alleged interest in a…

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.

Keep reading for free

Create a free CaseChat account to read Lin v Lo and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] QSC 310
Decision Date: 19 December 2017

CaseChat Overview and Summary

Lin brought an action against Lo and another party (the second respondent) in the County Court of Victoria. The dispute involved an agreement for the sale of a property, and Lin sought relief for the alleged breach of contract by Lo. The case proceeded to a final judgment by consent in Lin's favour. The primary issue before the court was the determination of the costs to be borne by the parties involved in the proceedings. Specifically, the court had to decide whether the costs should follow the event and, if so, whether they should be assessed on an indemnity basis.

The court considered the applicable legal principles regarding costs in civil proceedings. It noted that, generally, costs should follow the event unless there are exceptional circumstances. Given the final judgment in Lin's favour, the court held that the costs should indeed follow the event. Furthermore, the court found that the circumstances of the case warranted an assessment of costs on an indemnity basis. This decision was based on the fact that Lo's conduct throughout the proceedings was considered vexatious and oppressive, justifying a higher level of cost recovery.

Consequently, the court ordered that the first respondent, Lo, pay Lin's costs of and incidental to the proceeding, to be assessed on the indemnity basis. The court did not make any order regarding the costs between Lo and the second respondent, as it found no basis to do so. This decision ensures that Lin is appropriately compensated for the costs incurred due to Lo's actions, reflecting the conduct of the proceedings.

Orders

Orders of the court

1. The first respondent pay the applicant’s costs of and incidental to the proceeding to be assessed on the indemnity basis.

2. There be no order as to the costs of the proceeding as between the first and second respondent.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lin v Lo & Anor [2017] QSC 310
PARTIES:	CHIA-YI LIN (applicant) v SOPHIA JUAN LO (first respondent) and KONRAD LIN (second respondent)
FILE NO:	10241 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	19 December 2017
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	Applegarth J
ORDER:	1. The first respondent pay the applicant’s costs of and incidental to the proceeding to be assessed on the indemnity basis. 2. There be no order as to the costs of the proceeding as between the first and second respondent.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where final judgment in applicant’s favour made by consent – whether costs should follow the event – whether costs should be assessed on the indemnity basis Westpac Banking Corporation v Jamieson & Ors [2015] QCA 84, cited
COUNSEL:	N J Shaw for the applicant The first respondent was self-represented The second respondent was self-represented
SOLICITORS:	Christie Lawyers for the applicant The first respondent was self-represented The second respondent was self-represented