Xu v Jinhong Design and Constructions Pty Ltd (No 2)

[2011] NSWCA 333

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Xu v Jinhong Design & Constructions Pty Ltd (No 2) [2011] NSWCA 333

Hearing dates:

On the papers

Decision date:

02 November 2011

Before:

Basten JA at [1]
Macfarlan JA at [2]
Sackville AJA at [12]

Decision:

(1) Order that the respondent pay the appellants' costs of the appeal.

(2) Direct that the making of orders concerning the costs thus far incurred at first instance be the subject of consideration at the further trial to be held pursuant to the remitter directed on 8 September 2011.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

COSTS - costs of appeal - multiple issues - whether points upon which appellant was unsuccessful constituted dominant or separable issues for the purpose of considering costs orders

COSTS - respondent's contract claim remitted to the Common Law Division for further trial - whether Court should make orders in respect of costs incurred at first instance - costs incurred at first instance to be considered at the further trial

Cases Cited:

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2011] NSWCA 171

Category:

Costs

Parties:

Yi Nuo Xu (First Appellant)
Cheng En Zhu (Second Appellant)
Jinhong Design & Constructions Pty Ltd (Respondent)

Representation:

Counsel:
B W Rayment QC/D A Smallbone/J M Baxter (Appellants)
J J Garnsey QC/C Moschoudis (Respondent)
Solicitors:
Pancific Legal (Appellants)
Ren Zhou Lawyers (Respondent)

File Number(s):

CA 2007/260539

 Decision under appeal 

Citation:

Jinhong Design & Constructions Pty Limited v Xu and Anor [2010] NSWSC 523

Before:

Johnson J

File Number(s):

SC 2007/260539

Judgment

1. BASTEN JA : I agree with Macfarlan JA.

1. MACFARLAN JA : Judgment on this appeal was delivered on 8 September 2011 ([2011] NSWCA 277). At the parties' request, the Court afforded to them an opportunity to lodge written submissions concerning costs orders that should be made in respect of the proceedings at first instance and on appeal. Those submissions have now been lodged.

1. Unsurprisingly the appellants' contention is that they were successful on the appeal and that the respondent should accordingly be ordered to pay their costs of it. The appellants were in fact substantially successful on the appeal. Importantly they successfully challenged the primary judge's findings that they had made relevant promises and representations.

1. In my view it is not of significance in considering what costs orders should be made that the appellants were not successful on every submission that they made in support of those challenges. For example, the appellants' submission that the primary judge erred in concluding that the first appellant signed the First Building Contract failed but their alternative submission that that fact was in any event not of significance succeeded. These were aspects of the same issue and not "dominant or separable" issues on the appeal in the sense referred to in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] (see also Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2011] NSWCA 171 at [22]).

1. The appellants were also successful in contending, on the other major aspect of the appeal, that the Common Law Division's reconsideration of the respondent's contract claim should exclude that part of the claim that is based upon oral variations to the Second Building Contract.

1. The respondent however submitted that the appellants should be deprived of their costs of the appeal (and of the proceedings at first instance) because they misconducted themselves in relation to the transaction the subject of the proceedings and in relation to the conduct of the proceedings. These submissions in substance involved a re-agitation of matters relied upon on the appeal and referred to in the Court's earlier judgment at [93] and [110] - [112]. They do not in my view concern matters which are relevant to the question of what costs orders should be made in respect of the appeal. Furthermore, the respondent is not assisted by its allegation that the first appellant misconducted himself both at first instance and on appeal by wrongly denying that he had signed the guarantee contained in the First Building Contract. The first appellant was unsuccessful on that point but, as I have said, that question did not constitute a distinct issue on appeal for the purpose of considering the appropriate costs order.

1. It follows also that the respondent's alternative submission, that is, that the question of whether the first appellant signed the guarantee contained in the First Building Contract should be treated as a separate issue, must fail.

1. In these circumstances my view is that the costs of the appeal should follow the event and that the appellants should obtain an order for their costs.

1. The parties also made submissions as to whether this Court should make orders in respect of the costs incurred at first instance. As the respondent may succeed at the further trial on one of the causes of action upon which it sued at the first trial, namely, its contract claim (albeit in a lesser amount than that for which it sued), the determination of who should pay the costs of the first trial should in my view await the outcome of the second trial. Orders made in the Common Law Division after the second trial should accordingly deal with the costs incurred thus far at first instance.

1. The respondent submitted that this Court should at least deal with the costs incurred at first instance in respect of claims of the appellant that have been rejected in this Court and are not to be remitted to the Common Law Division. I do not accept this submission as the outcome of the appellants' contract claim at the further trial will be a relevant consideration in determining who should pay those costs.

1. For these reasons I propose the following orders in addition to those made by this Court on 8 September 2011:

(1) Order that the respondent pay the appellants' costs of the appeal.

(2) Direct that the making of orders concerning the costs thus far incurred at first instance be the subject of consideration at the further trial to be held pursuant to the remitter directed on 8 September 2011.

1. SACKVILLE AJA : I agree with Macfarlan JA.

**********

Decision last updated: 02 November 2011