Qin v He

[2020] NSWDC 522

District Court

New South Wales

Medium Neutral Citation:

Qin v He [2020] NSWDC 522

Hearing dates:

30 April 2020

Date of orders:

30 April 2020

Decision date:

30 April 2020

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1)   The appeal against the Review Panel’s decision is allowed.

(2)   Set aside the determination of the Review Panel.

(3)   Determine that the total amount of the fair and reasonable costs of the first and second defendants to be $30,348.50.

(4)   Find the plaintiff liable to the first and second defendants for the costs of the assessment and the costs of the Review Panel in the sum of $4,409.65, being 60% of the costs of assessment and 60% of the Review Panel’s costs.

(5)   Order that there be no order as to the costs of the amended summons.

(6)   Liberty to the first and second defendants to apply, in order to obtain any certificate or further order necessary to give efficacy to the orders that are made today so as enable the recovery of the costs.

Catchwords:

COSTS — Costs assessment — Determination — Review/appeal

Legislation Cited:

Legal Profession Uniform Law Application Regulation 2015, reg 40, reg 53

Cases Cited:

John Christopher Gazecki v McCabes Lawyers Pty Limited [2019] NSWDC 566

Category:

Costs

Parties:

Wei Wen Qin (plaintiff)
Kaijun He (first defendant)
View Land Properties Pty Ltd (second defendant)

Representation:

Counsel:
Mr F Tao (first and second defendants)

Solicitors:
Shen’s Lawyers (first and second defendants)

File Number(s):

2019/220446

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Costs Review Panel

Jurisdiction:

Civil

Date of Decision:

13 May 2019

Before:

John Lawrence Sharpe and John Anthony Levingston

File Number(s):

2018/129519

Judgment

1. I have given reasons earlier in the course of this hearing about various issues that have arisen, including by reference to the principles governing an appeal by way of a rehearing and the importance of error as identified by Weber SC DCJ in John Christopher Gazecki v McCabes Lawyers Pty Limited [2019] NSWDC 566 at [16].

2. One remaining issue concerns the costs of these proceedings. The plaintiff, in maintaining this appeal against the decision of the Review Panel on costs, has succeeded in reducing the costs during the assessment stage from a claim of approximately $50,000 to approximately $37,000, and on this amended summons, to an amount of approximately $30,000.

3. This last reduction involved four components, two of which were acknowledged by the defendants some months ago and two of which were conceded in submissions today. Those facts might lessen the weight to be given to the usual rule of costs following the event of the plaintiff’s appeal having succeeded to a limited extent. The weight to be given to the summons having some success is also lessened by the circumstance that Mr Qin, the plaintiff, has never accepted a liability to pay any of the costs claimed and, as it turns out, he is liable for approximately 60% of the costs claimed. But I cannot ignore that the appeal has had some success and that the costs applicants, the first and second defendants to this amended summons, claimed approximately two-thirds more costs than that to which they were entitled: their entitlement to costs involving a reduction of 40% on the amount claimed. The costs assessment regime discourages, including in regs 40 and 53 of the Legal Profession Uniform Law Application Regulation 2015, any exaggerated claim for costs.

4. I take into account also that Mr Qin has made a number of grievous and irrelevant allegations in this Court and in the assessment processes below. Whilst I do not excuse those matters, the circumstance of unsubstantiated and irrelevant allegations by a layperson, without legal advice, are, it seems, less of an adverse factor than they would be had they involved a legal practitioner with proper understanding of matters of relevance and proof.

5. I also take into account that Mr Qin is self-represented, which limits the costs to which he would otherwise be entitled.

6. In all the circumstances, I am of the view that the costs of the proceedings should be borne by the parties to the extent that they were incurred, being Mr Qin, who incurred the expense of bringing the proceedings, and the defendants in incurring the expense of legal representation to defend them, and so the costs order should be that each party bear their own costs.

7. The orders of the Court are:

1. The appeal against the Review Panel’s decision is allowed.

2. Set aside the determination of the Review Panel.

3. Determine that the total amount of the fair and reasonable costs of the first and second defendants to be $30,348.50.

4. Find the plaintiff liable to the first and second defendants for the costs of the assessment and the costs of the Review Panel in the sum of $4,409.65, being 60% of the costs of assessment and 60% of the Review Panel’s costs.

5. Order that there be no order as to the costs of the amended summons.

6. Liberty to the first and second defendants to apply, in order to obtain any certificate or further order necessary to give efficacy to the orders that are made today so as enable the recovery of the costs.

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Decision last updated: 11 September 2020