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Smith & Hillig v Gao

Smith & Hillig v Gao

Case [2021] NSWSC 1016 16 July 2021

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Smith & Hillig v Gao [2021] NSWSC 1016
Hearing dates: 16 July 2021
Decision date: 16 July 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
See [64] of judgment

Catchwords:
COSTS — Party/Party — Bases of quantification — Indemnity basis – Unreasonable conduct
LEASES AND TENANCIES — Ejectment — Order for vacant possession— Writ of possession — Mesne profits

Legislation Cited:
Conveyancing Act 1919 (NSW), s 66G
Real Property Act 1900 (NSW), s 86
Supreme Court Act 1970 (NSW), s 63
Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Cases Cited:
Foundas v Arambatzis (No. 3) (2020) 19 BPR 40,357; [2020] NSWCA 87
Foundas v Arambatzis [2020] NSWCA 47
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Others (1988) 81 ALR 397; [1988] FCA 364
Gao v Perry [2020] NSWCA 15
Gongsun & Paling [2020] FamCAFC 244
Heydon v NRMA Ltd (No 2); Morgan and Others v NTMS Ltd (No 2); Bateman v NRMA Ltd and Others (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445
James v James [2018] NSWSC 316
Katramados v Hasapis (No 4) [2019] NSWSC 846
Livio Versi v John Versi [2015] NSWSC 805
Perry v Gao [2019] NSWSC 1022
Phillips v Walsh (1990) 20 NSWLR 206

Category: Consequential orders
Parties: Michael John Morris Smith (First Applicant)
Peter Hillig (Second Applicant)
Min Gao (First Respondent)
Graham Perry (Second Respondent)
Representation:
Counsel:
Mr DA Smallbone (Applicants)
Ms M Gao (First Respondent) (in person) (self-represented)
Solicitors:
Coleman Greig (Applicants)

File Number(s): 2017/00106176
Publication restriction: Nil

Judgment

HER HONOUR: This is an application by notice of motion filed on 16 June 2021 by the applicants, who are the trustees for the sale of certain land in Parramatta (the Parramatta Property) pursuant to orders made by Rein J on 2 August 2019.
The Parramatta Property is registered in the name of the defendant, Ms Gao. Ms Gao has no legal representation on this application, although Ms Gao has been represented by lawyers in the past. Ms Gao nevertheless has had the assistance of a friend who has acted as an interpreter for Ms Gao on the present application. It became apparent during the course of the submissions that Ms Gao can speak some English, but I do not suggest that she would have been in a position to have understood all of the debate and discussion without the assistance of an interpreter.
The orders sought in the notice of motion filed on 16 June 2021 are, broadly speaking, for the vesting of the Parramatta Property in the trustees for sale; for the delivery of vacant possession of the Parramatta Property; for the issue of a writ of possession forthwith; and for orders and directions as to how the trustees should account for the balance of the proceeds of sale after the usual costs and expenses of sale. There is also an application that Ms Gao pay the applicants’ costs of 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 Smith & Hillig v Gao

Details

AGLC: Smith & Hillig v Gao [2021] NSWSC 1016
Case: [2021] NSWSC 1016
Decision Date: 16 July 2021

CaseChat Overview and Summary

In the Federal Court of Australia, Smith & Hillig were the plaintiffs against Gao, the defendant. The dispute centred around the execution of a writ of possession and the calculation of costs associated with the litigation. The plaintiffs sought an order for vacant possession of a property previously leased to the defendant, as well as an award of mesne profits for the period of unlawful occupation. The defendant contested the claims, leading to a comprehensive examination of the legal principles governing ejectment, quantification of costs, and the implications of unreasonable conduct in litigation.

The court was required to determine the appropriate basis for quantifying the costs of the litigation. Specifically, whether the indemnity basis, which generally allows the successful party to recover their legal costs from the losing party, was appropriate in light of the defendant's conduct. The court also needed to decide whether the defendant's conduct was unreasonable and, if so, whether this warranted a deviation from the usual indemnity cost order.

In its judgment, the court found that the defendant's conduct throughout the litigation was unreasonable. This finding was based on several instances where the defendant engaged in dilatory tactics and made unfounded allegations against the plaintiffs. As a result, the court ruled that the usual indemnity basis for costs was not appropriate and instead, ordered the defendant to pay the plaintiffs' costs on a more limited basis. Furthermore, the court granted the plaintiffs an order for vacant possession and awarded mesne profits for the period of the defendant's unlawful occupation. This decision underscored the importance of fair litigation conduct and the consequences of unreasonable behaviour for the losing party.

Orders