Sui v Jiang (No. 2) - [2021] NSWSC 572

Supreme Court

New South Wales

Medium Neutral Citation: Sui v Jiang and Anor (No. 2) [2021] NSWSC 572
Hearing dates: On the papers
Date of orders: 21 May 2021
Decision date: 21 May 2021
Jurisdiction: Common Law
Before: Johnson J
Decision:
(a) The Plaintiff is to pay 50% of the costs of the proceedings of the Defendants calculated on the ordinary basis up to 30 April 2021.
(b) The interlocutory costs order made in favour of the Plaintiff on 22 October 2020 is revoked.
(c) The Defendants are to pay the Plaintiff’s costs, calculated on the ordinary basis, with respect to the costs issue determined on written submissions furnished after 30 April 2021.

Catchwords:
COSTS – determination of costs issues following final hearing of civil claim – Defendants succeed on merits – earlier significant breaches by Defendants of statutory duty under s.56(3) Civil Procedure Act 2005 – interlocutory indemnity costs order made in favour of Plaintiff – whether appropriate order to resolve all costs issues is that Plaintiff should pay 50% of costs of Defendants on ordinary basis – held order to that effect just and proportionate – order made

Legislation Cited:
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

Cases Cited:
Richards v Cornford (No. 3) [2010] NSWCA 134
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Sui v Jiang and Anor (unreported, 22 October 2020)
Sui v Jiang and Anor [2021] NSWSC 435

Texts Cited:
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Category: Costs
Parties: Guangyi Sui (Plaintiff)
Zhaoquing Jiang (First Defendant)
Australian Fulin Agriculture Pty Limited (Second Defendant)
Representation:
Counsel:
Mr MW Young SC (Plaintiff)
Dr E Peden SC; Ms MJH Waters (Defendants)
Solicitors:
Dixon Holmes Lawyers (Plaintiff)
Sunfield Chambers Solicitors & Associates (Defendants)

File Number(s): 2019/302676
Publication restriction: ---

Judgment

JOHNSON J: On 30 April 2021, I gave judgment in this matter returning a verdict for each of the First Defendant, Zhaoquing Jiang, and the Second Defendant, Australian Fulin Agriculture Pty Limited, on the claim by the Plaintiff, Guangyi Sui: Sui v Jiang and Anor [2021] NSWSC 435.

The Costs Issue

For reasons explained at [136]-[145] of that judgment, I indicated a provisional view that the Court would make an order that the Plaintiff should pay 50% of the costs of the proceedings of the Defendants on the ordinary basis (“the foreshadowed costs order”). However, as this scenario had not been raised with the parties during submissions, I gave the parties an opportunity to make written submissions with respect to costs following the publication of the Court’s judgment.
In written submissions, dated 7 May 2021, counsel for the Defendants sought a different costs order. In written submissions dated 13 May 2021, Senior Counsel for the Plaintiff joined issue with the Defendants with respect to costs. In written submissions in reply dated 18 May 2021, counsel for the Defendants responded to the submissions for the Plaintiff.

The Court’s Provisional View Concerning Costs

It is appropriate to set out what was said in Sui v Jiang and Anor

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 Sui v Jiang (No. 2)

Details

AGLC: Sui v Jiang (No. 2) [2021] NSWSC 572
Case: [2021] NSWSC 572
Decision Date: 21 May 2021

CaseChat Overview and Summary

In the case of Sui v Jiang (No. 2), the dispute involved the determination of costs issues following the final hearing of a civil claim. The plaintiff, Sui, had previously succeeded in obtaining an interlocutory indemnity costs order against the defendants, Jiang, due to their significant breaches of a statutory duty under section 56(3) of the Civil Procedure Act 2005. The defendants had now succeeded on the merits of the claim, and the court was required to decide on the appropriate order to resolve all costs issues.

The court considered whether it was just and proportionate to order that the plaintiff should pay 50% of the defendants' costs on the ordinary basis. The court noted the previous breaches by the defendants and the plaintiff's successful application for an interlocutory indemnity costs order. The court held that an order to that effect was just and proportionate, given the circumstances of the case.

Accordingly, the court made an order that the plaintiff should pay 50% of the defendants' costs on the ordinary basis. This decision balanced the previous breaches by the defendants with the plaintiff's success on the merits, ensuring a fair and proportionate resolution of the costs issues.

Orders