Shi v Zhong (No.2) - [2021] NSWDC 466

District Court

New South Wales

Medium Neutral Citation: Shi v Zhong (No.2) [2021] NSWDC 466
Hearing dates: On the papers
Date of orders: 6 September 2021
Decision date: 06 September 2021
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1) Vary orders 1 of the orders dated 17 August 2021 to include interest of $22,273.91 in the judgment sum, making a total of $246,521.69
(2) Vary order 2 of the orders dated 17 August 2021 to provide that the defendant pay the plaintiff’s costs in the gross sum of $19,930.36.

Catchwords:
COSTS – application for gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – indemnity costs sought on the basis of an offer of compromise – interest on judgment sum – no issue of principle

Legislation Cited:
Uniform Civil Procedure Act 2005 (NSW) ss 98(4) and 100(1) and 100(2)
Uniform Civil Procedure Rules 2005 (NSW) r 42.14(2)

Cases Cited:
Hamod v State of New South Wales [2011] NSWCA 375
Sedgwick v Varzonek (No. 3) [2015] NSWSC 1982
Shi v Zhong [2021] NSWDC 419

Texts Cited:
Practice Note District Court (Civil) No. 15

Category: Costs
Parties:
Plaintiff:
Mr Yongcheng Shi
Defendant:
Mr Chen Zhong
Representation: Solicitors:
Plaintiff:
Juris Chamber Lawyers

File Number(s): 2020/00253476

Judgment

The plaintiff was successful in proceedings against the defendant, the guarantor of a lease, and was awarded $224,247.78: Shi v Zhong [2021] NSWDC 419. I made an order for costs to follow the event, with liberty to apply concerning costs and interest.
Pursuant to that leave, the plaintiff seeks an order pursuant to s 98(4) of the Uniform Civil Procedure Act 2005 (NSW)(“the Act”) and Uniform Civil Procedure Rules 2005 (NSW)(“UCPR”) for a gross sum costs order as well as for interest on the judgment sum.

The application for a gross sum costs order

The relevant principles are set out in Hamod v State of New South Wales [2011] NSWCA 375 at [813] and following, and may be summarised as follows:

The discretion conferred by s 98(4) is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision. While an order under s 98(4) is particularly appropriate where the costs have been incurred in lengthy or complex cases, they are also appropriate in cases of limited complexity where the additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event.

The sum assessed should be based on an informed assessment of the actual costs, having regard to the information before the court. This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any form of costs assessment.

The plaintiff relies upon the affidavit of his solicitor sworn on 20 August 2021, which sets out the relevant costs.
The defendant’s submissions in reply were to the…

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 Shi v Zhong (No.2)

Details

AGLC: Shi v Zhong (No.2) [2021] NSWDC 466
Case: [2021] NSWDC 466
Decision Date: 06 September 2021

CaseChat Overview and Summary

In the case of Shi v Zhong (No.2), the plaintiff, Shi, sought to vary the costs orders previously made in August 2021. The plaintiff's application included a request for interest on the judgment sum and a gross sum costs order. The application was made pursuant to section 98(4) of the Civil Procedure Act 2005 (NSW) and was based on an offer of compromise made by the defendant, Zhong. The court was tasked with determining whether the plaintiff was entitled to the interest on the judgment sum and whether the gross sum costs order should be granted.

The primary legal issue before the court was whether the plaintiff was entitled to interest on the judgment sum from the date of the initial judgment until the date of the variation. Additionally, the court had to determine whether the plaintiff was entitled to a gross sum costs order, considering the offer of compromise made by the defendant. The court considered the relevant statutory provisions, case law, and the nature of the offer of compromise.

The court held that the plaintiff was entitled to interest on the judgment sum from the date of the initial judgment until the date of the variation, amounting to $22,273.91. The court further held that the plaintiff was entitled to a gross sum costs order in the amount of $19,930.36. The court noted that there was no issue of principle in granting the plaintiff's application for interest and costs. The court varied the previous orders to include the interest on the judgment sum and to provide for the gross sum costs order.

The final orders of the court were to vary the orders dated 17 August 2021 to include interest of $22,273.91 in the judgment sum, making a total of $246,521.69, and to vary order 2 of the orders dated 17 August 2021 to provide that the defendant pay the plaintiff’s costs in the gross sum of $19,930.36.

Orders

Orders of the court

Order:

(1) Vary orders 1 of the orders dated 17 August 2021 to include interest of $22,273.91 in the judgment sum, making a total of $246,521.69

(2) Vary order 2 of the orders dated 17 August 2021 to provide that the defendant pay the plaintiff’s costs in the gross sum of $19,930.36.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Shi v Zhong (No.2) [2021] NSWDC 466
Hearing dates:	On the papers
Date of orders:	6 September 2021
Decision date:	06 September 2021
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Vary orders 1 of the orders dated 17 August 2021 to include interest of $22,273.91 in the judgment sum, making a total of $246,521.69 (2) Vary order 2 of the orders dated 17 August 2021 to provide that the defendant pay the plaintiff’s costs in the gross sum of $19,930.36.
Catchwords:	COSTS – application for gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – indemnity costs sought on the basis of an offer of compromise – interest on judgment sum – no issue of principle
Legislation Cited:	Uniform Civil Procedure Act 2005 (NSW) ss 98(4) and 100(1) and 100(2) Uniform Civil Procedure Rules 2005 (NSW) r 42.14(2)
Cases Cited:	Hamod v State of New South Wales [2011] NSWCA 375 Sedgwick v Varzonek (No. 3) [2015] NSWSC 1982 Shi v Zhong [2021] NSWDC 419
Texts Cited:	Practice Note District Court (Civil) No. 15
Category:	Costs
Parties:	Plaintiff: Mr Yongcheng Shi Defendant: Mr Chen Zhong
Representation:	Solicitors: Plaintiff: Juris Chamber Lawyers
File Number(s):	2020/00253476