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Liu v Lam (No 2)

Liu v Lam (No 2)

Case [2025] NSWSC 264 27 March 2025

Deliberately and Knowingly Giving False Evidence

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Liu v Lam (No 2) [2025] NSWSC 264
Hearing dates: On the papers (written submissions received on 6 and 13 December 2024 and 6 February 2025)
Date of orders: 27 March 2025
Decision date: 27 March 2025
Jurisdiction: Common Law
Before: Walton J
Decision:
The Court orders and directs that the plaintiff shall file and serve Short Minutes of Order reflecting the primary judgment and this judgment within 7 days of the publishing of this judgment.

Catchwords:
COSTS – Whether ordinary costs should be apportioned – Whether indemnity costs to be awarded for whole of proceedings – Where offer of compromise – Whether offer warrants indemnity costs order from the time of the offer – Where notice to admit – Deliberately and knowingly giving false evidence – Indemnity costs order
COSTS – Security for costs – Application to release security monies paid into court by plaintiff – Where plaintiff successful at trial and awarded costs – Where defendant intends to submit notice of appeal – Whether prospects of appeal relevant issue – Whether arguable case – Security returned

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
A & R Constructions Pte Ltd v Lees (1982) 7 ACLR 900
Barbieri v Pirovic [2022] NSWCA 76
Boris v Pages Property Investments Pty Ltd (No 2) [2022] NSWCA 43
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (No 2) [2010] NSWSC 490
Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109
Carter v Mehmet (No 2) [2021] NSWCA 333
Challenger Group Holdings Ltd v Concept Equity Pty Ltd (No. 2) [2008] NSWSC 1002
Chen v Chan [2009] VSCA 233
Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Gayle v Fairfax Media Publications Pte Ltd (No 2) [2018] NSWSC 1932
Gispac Pty Ltd v Michael Hill Jeweller (Australia) Pty Ltd (No 2) [2024] NSWSC 356
Hamod v State of NSW (2002) 188 ALR 659; [2002] FCA 424
Huon Shipping Logging Co Ltd v South British Insurance Co Ltd [1923] 23 VLR 206
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 187
Larsen v Tastec Pty Ltd (No 2) [2023] NSWCA 141
Leach v Nominal Defendant (QBE Insurance (Aust) Ltd) (No 2) [2014] NSWCA 391
Liu v Lam [2024] NSWSC 1306
Lym International Pty Ltd v Chen; Marcolongo v Lym International Pty Ltd [2009] NSWSC 167
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103
Pirrottina v Pirrottina(No 2) [2024] NSWSC 1053
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Ryde Developments Pty Ltd v The Property Investors…

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 Lam (No 2)

Details

AGLC: Liu v Lam (No 2) [2025] NSWSC 264
Case: [2025] NSWSC 264
Decision Date: 27 March 2025

CaseChat Overview and Summary

In Liu v Lam (No 2), the plaintiff sought a determination on costs, indemnity costs, and security for costs. The parties had engaged in litigation over a protracted period, with the plaintiff ultimately succeeding at trial. The primary dispute centred on whether ordinary costs should be apportioned between the parties, whether indemnity costs should be awarded for the entirety of the proceedings, and the appropriate quantum of indemnity costs. Additionally, the court had to decide whether the defendant's offer of compromise warranted an indemnity costs order from the time of the offer. Another point of contention was whether the defendant's deliberately and knowingly giving false evidence in response to a notice to admit justified an indemnity costs order.

The court examined the principles governing the apportionment of ordinary costs and concluded that such costs should be divided equally between the parties due to the nature of the litigation and the absence of exceptional circumstances warranting a deviation from the usual rule. Regarding indemnity costs, the court held that while the plaintiff was entitled to indemnity costs for the entire proceedings, the defendant's offer of compromise did not justify an indemnity costs order from the time of the offer. The court found that the offer did not sufficiently address the plaintiff's claims and did not meet the threshold for a significant and genuine offer that could result in such an order. Concerning the notice to admit, the court found that the defendant's false evidence warranted an indemnity costs order, as it had deliberately and knowingly provided misleading information, which prejudiced the plaintiff's case.

The court determined that the plaintiff was entitled to indemnity costs for the entire proceedings, with a specific order for costs from the time of the notice to admit. The court also ruled that the defendant's prospects of success on appeal and the arguable case were not relevant factors in deciding whether to return the security for costs. Given that the plaintiff was successful at trial and had been awarded costs, the court ordered the return of the security monies paid into court by the plaintiff. The defendant's intention to submit a notice of appeal did not alter the outcome, as the primary consideration was the plaintiff's success and the award of costs.

Orders