ORDERS — Orders to give effect to findings in respect of rejection of main claim and qualified success of cross-claim — Specific performance of obligations in a Deed refused as Deed signed as result of duress — Judgment for amounts paid as a result of duress
PROCEDURE — Mode of appearance at hearing — audio visual and other mode of appearance — The usual court etiquette, protocols, procedures and restrictions which apply to in-person hearings apply to forms of virtual hearing whether virtual in whole (with all participants joining remotely) or part (with some participants in person and others joining remotely) — Plaintiff sought leave to appear by AVL and initially appeared whilst driving a car — Court expects participants to use their common sense in appearing by AVL — Anyone given permission to appear by AVL should do so in a manner consistent with the appropriate decorum and solemnity of the occasion and not in a manner or environment in which they might be distracted or unable to give their undivided attention properly and safely to the proceedings before the Court — an AVL participant should never participate by AVL in a manner which by dint of their situation or surroundings gives rise to any appreciable risk of placing themselves or others in their vicinity in danger (in this case appearing whilst driving a car with potential risk to herself, other vehicle drivers, passengers or pedestrians)
COSTS — Offers of compromise — Whether offer valid — Meaning of must not include an amount for costs in r 20.26(2)(c) UCPR “judgment .. on the plaintiff's claim with no order as to costs” and for the first cross-defendant to pay the costs of the cross-claimant “as agreed or assessed” — Offers held to be valid
COSTS — Cross-claimant sought on the cross-claim recovery of sums totalling $210,000 against the first cross-defendant and second cross-defendant jointly — A determination was made in the principal judgment that the cross-claimant was entitled to judgment against only the first cross-defendant for $200,000 and against only the second cross-defendant for $10,000 — Cross-claimant served an offer of compromise in relation to the claim against the first cross-defendant but did not serve any offer in relation to the claim against the second cross-defendant — Each of the cross claimant and second cross-defendant claimed different orders based on different perspectives of whether they had been successful on the cross-claim — Orders made
COSTS — Set off – Whether costs in proceedings should be set off
[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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AGLC
Wang v Yu (No 2) [2024] NSWSC 4
Case
[2024] NSWSC 4
Decision Date
CaseChat Overview and Summary
In the case of Wang v Yu (No 2), the plaintiff sought specific performance of a deed as well as damages for breach of contract. The defendants raised issues of duress and undue influence in relation to the signing of the deed. The dispute came before the court which had to decide whether the deed was signed under duress and if so, what orders should be made to reflect this. The court also had to address the issue of costs, including whether offers of compromise were valid and whether costs in the proceedings should be set off.
The court found that the deed was indeed signed under duress and that the plaintiff was not entitled to specific performance. However, the court did find that the plaintiff was entitled to recover the amounts paid under the contract, which were a result of the duress. The court rejected the argument that the offers of compromise were invalid because they did not include an amount for costs, and held that the offers were valid. The court also made orders for costs, including setting off some of the costs incurred by the parties.
In relation to the mode of appearance at the hearing, the court noted that the plaintiff had sought leave to appear by audio-visual link (AVL) and had initially appeared whilst driving a car. The court held that while participants in virtual hearings should use their common sense, they should also do so in a manner consistent with the appropriate decorum and solemnity of the occasion. The court emphasised that anyone given permission to appear by AVL should not do so in a manner or environment in which they might be distracted or unable to give their undivided attention properly and safely to the proceedings before the court.
The court made orders for the plaintiff to recover the amounts paid under the contract, as well as costs in relation to the cross-claim. The court also made orders for costs in relation to the main claim, including setting off some of the costs incurred by the parties. The court held that the offers of compromise were valid and that the cross-claimant was entitled to recover $200,000 from the first cross-defendant and $10,000 from the second cross-defendant. The court also held that the cross-claimant was not entitled to recover any additional costs from the second cross-defendant.