Ye v Chen (No 2) - [2023] NSWCA 9

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ye v Chen (No 2) [2023] NSWCA 9
Hearing dates: On the papers
Date of orders: 14 February 2023
Decision date: 14 February 2023
Before: Macfarlan JA:
Meagher JA;
Mitchelmore JA
Decision:
(1) Ms Chen’s solicitors forthwith pay $93,746.31 to Ms Yu Chen, or at her direction, from the monies held in their trust account pursuant to the orders made by Beech-Jones J on 22 March 2021 in full satisfaction of the judgment given by Stapleton LCM on 11 December 2022 in the amount of $83,215.85 for Ms Chen against Ms Rebecca Haria Ye and Ucer Investment and Resources Management Pty Limited and interest after judgment on that judgment sum pursuant to s 101 of the Civil Procedure Act 2005 (NSW).
(2)   The Court notes that the sum of $93,746.31 does not include any amount in satisfaction of the costs orders made by Stapleton LCM, the costs orders form part of the judgment and the costs orders are not satisfied.
(3)   Otherwise dismiss Ms Chen’s notice of motion.
(4)   Make no orders as to the costs of Ms Chen’s notice of motion.

Catchwords:
COSTS — Court of Appeal — variation of costs order — whether non-acceptance of offer of compromise warranted departure from ordinary cost consequences — offer held not to be a genuine offer of compromise as no evidence to suggest successful party incurred significant appeal costs prior to making offer

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 101
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), Pt 42, Div 3, r 51.51

Cases Cited:
Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368

Category: Costs
Parties: Yu Chen (Applicant on motion)
Rebecca Haria Ye (Respondent on motion)
Representation:
Counsel:
J L Harrison (Applicant)
A Ogborne (Respondent)
Solicitors:
Prudentia Legal (Applicant)
Auburn Lawyers (Respondent)

File Number(s): 2022/151232
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2022] NSWSC 494

Date of Decision:

27 April 2022

Before:

Adamson J

File Number(s):

2021/6370

Judgment

THE COURT: On 3 November 2022 this Court dismissed an application by Ms Ye for leave to appeal against a decision of Adamson J of 27 April 2022 ([2022] NSWCA 219; [2022] NSWSC 494). Her Honour had dismissed an appeal by Ms Ye against a judgment of Magistrate Stapleton dated 11 December 2020 ordering Ms Ye to pay the sum of $ 72,350.66 plus interest and costs to Ms Chen.
This Court ordered Ms Ye to pay Ms Chen’s costs of the application to it, calculated on the ordinary basis.
Within 14 days of this Court’s decision, Ms Chen filed a notice of motion seeking, principally, variation of its costs order to provide that Ms Chen’s costs be assessed on the ordinary basis up to 6 July 2022 and thereafter on an indemnity basis. This application is founded…

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 Ye v Chen (No 2)

Details

AGLC: Ye v Chen (No 2) [2023] NSWCA 9
Case: [2023] NSWCA 9
Decision Date: 14 February 2023

CaseChat Overview and Summary

In *Ye v Chen (No 2)*, the Court of Appeal of New South Wales considered an application by Ms Chen to vary a costs order made by Beech-Jones J. The dispute concerned the proper allocation of funds held in trust by Ms Chen's solicitors, which were subject to a judgment in favour of Ms Chen against Ms Ye and Ucer Investment and Resources Management Pty Limited. The central issue was whether Ms Chen's offer of compromise, made prior to the final judgment, was a genuine offer that should influence the costs consequences of the proceedings.

The Court was required to determine whether Ms Chen's offer of compromise was a genuine offer, and if so, whether the non-acceptance of that offer by Ms Ye warranted a departure from the ordinary costs consequences. Specifically, the Court had to assess if the offer was made in good faith, considering the circumstances and the costs incurred by Ms Chen up to that point.

The Court reasoned that an offer of compromise must be genuine to attract the usual costs consequences. In this instance, the Court found that there was no evidence to suggest that Ms Chen had incurred significant appeal costs prior to making her offer. Consequently, the offer was not considered a genuine offer of compromise, and the Court declined to vary the existing costs orders based on its non-acceptance.

The Court ordered that Ms Chen's solicitors pay $93,746.31 to Ms Chen from their trust account, representing the judgment sum of $83,215.85 plus interest. This payment was to be in full satisfaction of that judgment, but the Court noted that it did not include any amount for the costs orders made by Stapleton LCM, which remained unsatisfied. Ms Chen's notice of motion was otherwise dismissed, and no orders were made as to the costs of that motion.

Orders

Orders of the court

(1) Ms Chen’s solicitors forthwith pay $93,746.31 to Ms Yu Chen, or at her direction, from the monies held in their trust account pursuant to the orders made by Beech-Jones J on 22 March 2021 in full satisfaction of the judgment given by Stapleton LCM on 11 December 2022 in the amount of $83,215.85 for Ms Chen against Ms Rebecca Haria Ye and Ucer Investment and Resources Management Pty Limited and interest after judgment on that judgment sum pursuant to s 101 of the Civil Procedure Act 2005 (NSW).

(2) The Court notes that the sum of $93,746.31 does not include any amount in satisfaction of the costs orders made by Stapleton LCM, the costs orders form part of the judgment and the costs orders are not satisfied.

(3) Otherwise dismiss Ms Chen’s notice of motion.

(4) Make no orders as to the costs of Ms Chen’s notice of motion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Ye v Chen (No 2) [2023] NSWCA 9
Hearing dates:	On the papers
Date of orders:	14 February 2023
Decision date:	14 February 2023
Before:	Macfarlan JA: Meagher JA; Mitchelmore JA
Decision:	(1) Ms Chen’s solicitors forthwith pay $93,746.31 to Ms Yu Chen, or at her direction, from the monies held in their trust account pursuant to the orders made by Beech-Jones J on 22 March 2021 in full satisfaction of the judgment given by Stapleton LCM on 11 December 2022 in the amount of $83,215.85 for Ms Chen against Ms Rebecca Haria Ye and Ucer Investment and Resources Management Pty Limited and interest after judgment on that judgment sum pursuant to s 101 of the Civil Procedure Act 2005 (NSW). (2) The Court notes that the sum of $93,746.31 does not include any amount in satisfaction of the costs orders made by Stapleton LCM, the costs orders form part of the judgment and the costs orders are not satisfied. (3) Otherwise dismiss Ms Chen’s notice of motion. (4) Make no orders as to the costs of Ms Chen’s notice of motion.
Catchwords:	COSTS — Court of Appeal — variation of costs order — whether non-acceptance of offer of compromise warranted departure from ordinary cost consequences — offer held not to be a genuine offer of compromise as no evidence to suggest successful party incurred significant appeal costs prior to making offer
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 101 Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), Pt 42, Div 3, r 51.51
Cases Cited:	Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Category:	Costs
Parties:	Yu Chen (Applicant on motion) Rebecca Haria Ye (Respondent on motion)
Representation:	Counsel: J L Harrison (Applicant) A Ogborne (Respondent) Solicitors: Prudentia Legal (Applicant) Auburn Lawyers (Respondent)
File Number(s):	2022/151232
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2022] NSWSC 494 Date of Decision: 27 April 2022 Before: Adamson J File Number(s): 2021/6370