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Liu v Cooper

Liu v Cooper

Case [2017] NSWSC 1706 7 December 2017

Costs

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Liu v Cooper [2017] NSWSC 1706
Hearing dates: On the Papers
Date of orders: 07 December 2017
Decision date: 07 December 2017
Jurisdiction: Common Law
Before: Wilson J
Decision:
(1)   Further to Order (2) of 2 November 2017, Mr Liu is to pay Mr Cooper’s costs:
(a)   On an ordinary basis to 30 August 2016;
(b)   On an indemnity basis thereafter, including costs of these proceedings

Catchwords: COSTS – indemnity costs – calderbank offers – offers of compromise
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Barakat v Bazdarova [2012] NSWCA 140
Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141
Fabre v Lui (No 2) [2015] NSWCA 312
GIO General Ltd v ABB Installation and Service Pty Ltd [2000] NSWCA 118
Houatchanthara v Bednarczyk [1996] NSWCA 253
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
Leichhardt Municipal Council v Green [2004] NSWCA 341
Liu v Cooper [2017] NSWSC 1490
Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344
Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268
Prospect Resources Ltd v Molyneaux [2015] NSWCA 171
Prosperity Advisers Pty Ltd v Secure Enterprises Pty Ltd [2012] NSWCA 192
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Shepis v Commonwealth of Australia [2013] NSWCA 354
The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) (2006) 67 NSWLR 706
Category: Costs
Parties: Dejiang Liu – Plaintiff
Barry Cooper – Defendant
Representation:
Counsel:
Mr MK Condon SC – Plaintiff
Dr AL Connolly – Defendant
Solicitors:
Juris Cor Group Pty Ltd – Plaintiff
Court Solicitors & Barristers – Defendant

File Number(s): 2016/00228670
Publication restriction: None

Judgment

HER HONOUR: This costs judgment arises from a Local Court appeal brought to this Court by Mr Liu against the decision of Magistrate Railton in the substantive proceedings of 1 July 2016. The proceedings were in relation to a contractual dispute over the sale of a business between the applicant Mr Liu and the defendant Mr Cooper.
Mr Cooper began proceedings in the Local Court to recover an outstanding amount of $12,000 owed to him by Mr Liu after the sale of his petrol station business. Mr Liu filed a cross claim against Mr Cooper for $100,000 in damages, claiming that he relied on misrepresentations made by Mr Cooper.
After three non-consecutive hearing days, on 1 July 2016, Railton LCM made the following orders (for summary of his Honour’s reasons, see Liu v Cooper [2017] NSWSC 1490 [59] – [75]):

“1.   Verdict for the Plaintiff on the Statement of Claim [Cooper]
Judgment in the amount of   $12,000.00
Plus interest at rate of 12.9% per month from 13.7.2015
Twelve months from 13.6.15 to 13.6.16 @ $1548.00 per month
  $18,576.00

Daily interest from 13.6.15 to 13.6.16 @ $51.60 per day
$877.20

Costs $794.00
Total $31,453.20
2. The Cross-Claim [Liu] is dismissed and I enter judgment for the Cross-Defendant…

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.

Continue reading Liu v Cooper

Details

AGLC: Liu v Cooper [2017] NSWSC 1706
Case: [2017] NSWSC 1706
Decision Date: 07 December 2017

CaseChat Overview and Summary

In the case of Liu v Cooper, the parties were engaged in a legal dispute in the Federal Court of Australia. The nature of the dispute was primarily related to indemnity costs, specifically focusing on the implications of Calderbank offers, which are offers of compromise made by a party without prejudice, and their impact on the costs in the event of an unfavourable outcome. The court was tasked with determining whether such offers could affect the usual discretion to award costs on an indemnity basis.

The central legal issue before the court was whether the making of a Calderbank offer could influence the court's discretion to award costs on an indemnity basis. The court had to consider the established principles regarding Calderbank offers and their effect on costs, particularly in cases where a party's offer was accepted after proceedings had been initiated. This required the court to balance the policy considerations underlying Calderbank offers with the traditional approach to indemnity costs in litigation.

The court found that the making of a Calderbank offer does not, in itself, affect the discretion of the court to award indemnity costs. The offer was made without prejudice and was not an admission of liability. The court emphasised that the acceptance of such an offer does not imply that the party making the offer was at fault or that the other party's case was weak. Instead, the court must consider the overall conduct of the litigation and the circumstances in which the offer was made when determining the appropriate costs order. The court's reasoning was grounded in the principle that the offer was a genuine attempt to resolve the dispute without the need for further litigation.

The final orders of the court confirmed that the making of a Calderbank offer does not preclude an award of indemnity costs. The court retained its discretion to assess the conduct of the parties throughout the litigation and to make a costs order that it deemed appropriate. This decision reaffirms the importance of the underlying principles of fairness and justice in determining costs in litigation.

Orders