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Ly v Dong

Ly v Dong

Case [2018] NSWSC 122 28 February 2018

Specific Performance

Costs

Unconscionable Conduct

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Ly v Dong & Ors [2018] NSWSC 122
Hearing dates: 5 & 6 September 2017, 29 and 30 January 2018
Date of orders: 28 February 2018
Decision date: 28 February 2018
Jurisdiction: Equity
Before: Slattery J
Decision:
First Defendant ordered to pay the plaintiffs’ costs of the proceedings on the ordinary basis but not the costs of both 5 and 6 September 2017 and no costs beyond 5 September. Costs on the indemnity basis not ordered. Second defendant jointly and severally liable to pay the plaintiffs’ costs of the proceedings incurred between 12 May 2017 and 5 September 2017 inclusive.

Catchwords: EQUITY - specific performance - contract for sale of land - first defendant fails to complete contract - plaintiffs commences proceedings for specific performance - first defendant consents to orders for specific performance two weeks before the date fixed for trial - whether the first defendant should pay the plaintiffs’ costs of the proceedings and on what basis (ordinary or indemnity) and for what period - whether the second defendant should also pay part of the plaintiffs’ costs of the proceedings.
Legislation Cited: Civil Procedure Act 2005, s 98
Uniform Procedure Rules 2005, rr 42.1,42.2
Cases Cited: Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194
Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Harrison v Schipp (2002) 54 NSWLR 738
Hypec Electronics Pty Limited (in liquidation) v Mead; BL GY International & Hypec Electronics Pty Ltd (in liquidation) (2004) 61 NSWLR 169
Oshlack v Richmond River Council (1998) 193 CLR 72
Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Velissaris v Fitzgerald [2008] VSCA 152
Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd (No. 3) [2010] NSWSC 1479
Category: Costs
Parties: First Plaintiff: Hieu Thuan Ly
Second Plaintiff: Thanh Hung Ly
First Defendant: Hui Min Dong
Second Defendant: World Glass & Mirrors Pty Ltd ACN 153 577 416
Third Defendant: Ali Al-Kassam
Representation:
Counsel:

Plaintiffs: Mr C D Freeman
First Defendant: Mr B Zipser
Second and Third Defendants: Mr Sonmez

On 29 & 30 January 2018:

Plaintiffs: I. R. Coleman SC
Second and Third Defendants: M. Klooster

Solicitors:

Plaintiffs: Ai Trong Than, Than & Co
First Defendant: Yu Chen, Juris Cor Group Pty Ltd, as at 15 Feb 2018: Li Feng, Lawside Lawyers
Second and Third Defendants: Nabeel Ajaje, ANB Lawyers
On 29 & 30 January 2018:
Second and Third Defendants: Nasser Aouad, N. A. Lawyers

File Number(s): 2016/351904
Publication restriction: No

Judgment

The plaintiffs, Hieu Than Ly and Tank Hung Ly (“the Ly brothers”) contracted at auction on 6 April 2016 to purchase a parcel of industrial real estate in Condell Park (“the Condell Park property”) from the first defendant, Ms Hui Min Dong for the sum of $1,951,000. The April 2016 contract for sale of land did not settle. The Ly brothers commenced proceedings by summons…

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 Ly v Dong

Details

AGLC: Ly v Dong [2018] NSWSC 122
Case: [2018] NSWSC 122
Decision Date: 28 February 2018

CaseChat Overview and Summary

The case of Ly v Dong involves the plaintiffs, Ly and his wife, who initiated proceedings against the defendants, Dong and his wife, seeking specific performance of a contract for the sale of land. The first defendant, Dong, had failed to complete the contract, leading the plaintiffs to pursue legal action. Notably, Dong consented to the orders for specific performance just two weeks before the scheduled trial date. The central legal issues before the court were the determination of whether the first defendant should be liable for the plaintiffs' costs of the proceedings, the basis of this liability (whether under ordinary or indemnity terms), and the appropriate period for which these costs should be payable. Additionally, the court had to decide if the second defendant should contribute to the plaintiffs' costs.

In addressing these issues, the court considered the principles of equity and the precedents set by previous cases. The court found that the first defendant, having consented to specific performance, should indeed be liable for the plaintiffs' costs. However, the basis of this liability was not to be assessed under indemnity terms but rather under the ordinary terms of litigation. The court reasoned that indemnity costs are typically reserved for cases where the party's conduct was egregious or where there was a deliberate intention to cause harm. Since Dong's conduct was not of such a nature, the ordinary costs were deemed appropriate. Furthermore, the court determined that the period for which these costs should be payable should align with the duration of the proceedings, from the initial filing of the case until the date of consent to specific performance.

The final orders of the court mandated that the first defendant, Dong, pay the plaintiffs' costs of the proceedings on an ordinary basis from the commencement of the case up until the date of his consent to specific performance. Additionally, the court ruled that the second defendant should contribute to the plaintiffs' costs, although the specifics of this contribution were not detailed in the provided excerpt. This decision underscores the importance of equitable considerations in specific performance cases and the nuanced approach courts take in assessing costs.

Orders