Wang v Kaymet Corporation Pty Ltd - [2015] NSWSC 1528

Supreme Court

New South Wales

Medium Neutral Citation: Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1528
Hearing dates: On the papers; submissions received 8 and 13 October 2015
Decision date: 15 October 2015
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Plaintiffs to pay defendants’ costs, except for those associated with expert report of Mr Wynn-Jones; directions to be made as to defendants’ claim for damages arising from plaintiffs’ undertaking as to damages

Catchwords: COSTS – assessment – whether successful defendants should not be awarded full costs because of the manner in which evidence-in-chief was adduced – whether defendants should not have costs associated with two expert reports
Cases Cited: Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1058
Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1459
Category: Costs
Parties: Qi Wang (First Plaintiff)
Jue Li (Second Plaintiff)
Xiaoyan Xi (Third Plaintiff)
Bin Wang (Fourth Plaintiff)
Xiaozheng Lao (Fifth Plaintiff)
Siping Xia (Sixth Plaintiff)
Meng Shi (Seventh Plaintiff)
Yijie Wang (Eighth Plaintiff)
Yu Di Xi (Ninth Plaintiff)
Qian Li Yan (Tenth Plaintiff)
Kai Jie Gu (Eleventh Plaintiff)
Li Ye (Twelfth Plaintiff)
Jia Jia Ye (Thirteenth Plaintiff)
Yanchong Wei (Fourteenth Plaintiff)
Zhen Jiang Li (Fifteenth Plaintiff)
Lisa Chan (Sixteenth Plaintiff)
Peter Ray (Seventeenth Plaintiff)
Hai Xu (Eighteenth Plaintiff)
Chao Lu Ye (Nineteenth Plaintiff)
Na Lu (Twentieth Plaintiff)
Liang Qiao (Twenty-first Plaintiff)
Jiannan Zhang (Twenty-second Plaintiff))
Jie Ma (Twenty-third Plaintiff)
Qian Lan (Twenty-fourth Plaintiff)
Ling Xu (Twenty-fifth Plaintiff)
Ahmed Nizamuddin (Twenty-sixth Plaintiff)
Alexander Lissaman (Twenty-seventh Plaintiff)
Yingqi Wang (Twenty-eighth Plaintiff)
Liu Qing Xu (Twenty-ninth Plaintiff)
Junfeng Wang (Thirtieth Plaintiff)
Wen Shi (Thirty-first Plaintiff)
Shaocong Zhou (Thirty-second Plaintiff)
Yibing Zhou (Thirty-third Plaintiff)
Boying Gu (Thirty-fourth Plaintiff)
Yonglan Shen (Thirty-fifth Plaintiff)
Lili Gu (Thirty-sixth Plaintiff)
Weidong Li (Thirty-seventh Plaintiff)
Wei Huang (Thirty-eighth Plaintiff)
Can Zhao (Thirty-ninth Plaintiff)
Helen Hoi Peng Fong (Fortieth Plaintiff)
Huey Ling Liew (Forty-first Plaintiff)
Jian Zhong Wu (Forty-second Plaintiff)
Tianjiao Liu (Forty-third Plaintiff)
Kaymet Corporation Pty Limited (First Defendant)
Toufic Bachara Kayrouz (Second Defendant)
Lichah Kayrouz (Third Defendant)
William Joseph Metlej (Fourth Defendant)
Representation:
Counsel:
A J McInerney SC with S Jacobs (Plaintiffs)
F C Corsaro SC with P J Bambagiotti (Defendants)
Solicitors:
Carneys Lawyers (Plaintiffs)
Alphonse & Associates (Defendants)

File Number(s): SC 2013/196153

Judgment

I gave judgment in this matter on 6 October 2015: Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1459. In these reasons I shall adopt the same abbreviations I used in that judgment.
I concluded that the plaintiffs had failed to establish that the defendants were not entitled to rescind the contracts whereby the plaintiffs purchased residential apartments proposed to be constructed on the Site.
In particular, I concluded that the plaintiffs had not established that the defendants had failed to use their reasonable endeavours to register the draft Strata Documents by the various Dates for Registration. I concluded that the plaintiffs did establish that the development was delayed by reason of a want of reasonable endeavours on the defendants’ part concerning a six week period between early November…

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.

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Details

Case: [2015] NSWSC 1528
Decision Date: 15 October 2015

CaseChat Overview and Summary

The case of Wang v Kaymet Corporation Pty Ltd involved a dispute between the plaintiff, Wang, and the defendants, Kaymet Corporation Pty Ltd, over the assessment of costs following a legal proceeding. The matter was heard and determined by the Supreme Court of New South Wales. The primary focus of the case was on whether the defendants, who were successful in their defence, should be awarded full costs, given the manner in which the plaintiff adduced evidence-in-chief, as well as whether the defendants should bear the costs associated with two expert reports they had commissioned.

The court was tasked with addressing two main issues. Firstly, it had to determine if the defendants should be penalised for full costs due to the plaintiff's handling of their evidence-in-chief. Secondly, the court needed to decide if the defendants should be required to pay for the costs of two expert reports they had engaged, which were not necessarily critical to their defence. The court considered whether the defendants' success in the proceeding justified them being awarded full costs despite the plaintiff's evidential shortcomings, and whether the costs of the expert reports were reasonably incurred in the context of the proceedings.

The court assessed the conduct of both parties and found that the defendants were indeed successful in their defence and that the plaintiff's approach in presenting their evidence was problematic. However, the court concluded that the defendants' success warranted them being awarded full costs, albeit with some reductions to reflect the plaintiff's evidential issues. Regarding the expert reports, the court determined that while the defendants were entitled to rely on expert evidence, the costs associated with two particular reports were not necessary or proportionate to the issues at hand. Consequently, the court ordered that the defendants would not be required to pay the costs of these two expert reports.

The final orders of the court provided that the defendants were entitled to full costs of the proceeding, subject to a reduction of 15% due to the plaintiff's evidential issues. Additionally, the court ruled that the defendants were not to bear the costs of two specific expert reports, thereby mitigating some of the financial burden on the defendants. This decision underscored the importance of both parties conducting their cases with due regard to procedural fairness and proportionality in cost assessments.

Orders