Ye v Chen (No 2) - [2022] NSWSC 630

Supreme Court

New South Wales

Medium Neutral Citation: Ye v Chen (No 2) [2022] NSWSC 630
Hearing dates: On the papers
Decision date: 20 May 2022
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Subject to orders (2) and (3) below, order the plaintiffs to pay the defendant’s costs of the proceedings, such costs to be paid on the ordinary basis.
(2)   Confirm that order (1) above does not affect the orders for costs made by Harrison AsJ on 31 August 2021 and 6 October 2021 in Ye v Chen (No 2) [2021] NSWSC 1265.
(3)   Each party pay her or its (as the case may be) own costs of this application.

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise — whether to follow UCPR r 42.15A to order indemnity costs or order otherwise — where circumstances such that court ought to order otherwise — where costs awarded on an ordinary basis only

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 20.26, 42.15A

Cases Cited:
Ye v Chen [2022] NSWSC 494
Ye v Chen (No 2) [2021] NSWSC 1265

Category: Costs
Parties: Rebecca Haria Ye (First Plaintiff)
Ucer Investment and Resources Management Pty Ltd (Second Plaintiff)
Yu Chen (Defendant)
Representation:
Counsel:
A Cheema (Plaintiffs)
J Harrison (Defendant)
Solicitors:
Auburn Lawyers (Plaintiffs)
Prudentia Legal (Defendant)

File Number(s): 2021/6370
Decision under appeal

Court or tribunal:

Local Court

Date of Decision:

11 December 2020

Before:

Stapleton LCM

File Number(s):

2018/215879

Judgment

Introduction

On 27 April 2022, I made orders and gave reasons in this matter: Ye v Chen [2022] NSWSC 494. I made a default costs order (that the plaintiffs pay the defendant’s costs of the proceedings in this Court) and made provision for any party who sought a different order to make an application within seven days.
Within the requisite time, the defendant, Yu Chen, applied for an order that the plaintiffs, Rebecca Ye and Ucer Investment and Resources Management Pty Ltd (Ucer), pay her costs on the ordinary basis up to and including 5 February 2021 and on an indemnity basis thereafter.
They relied on an offer of compromise which they served on 5 February 2021, which was expressed to be made pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 20.26 in which they offered to compromise the proceedings on the basis of orders that the proceedings be dismissed and that the plaintiffs pay the defendant’s costs of the proceedings assessed on the ordinary basis. The offer was expressed to be open for 28 days.
The plaintiffs did not dispute that the offer was made in accordance with UCPR, r 20.26 or that the effect of UCPR r 42.15A(2) was that, unless the Court ordered otherwise, the defendant was entitled to her costs on the ordinary basis until the date of the offer and on the indemnity basis thereafter. However, they submitted that the Court should order otherwise because there was no element of real…

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) [2022] NSWSC 630
Case: [2022] NSWSC 630
Decision Date: 20 May 2022

CaseChat Overview and Summary

In the case of Ye v Chen (No 2), the parties were involved in a legal dispute that was determined by the Supreme Court of New South Wales. The nature of the dispute was centred around contractual issues and the specific terms of a settlement agreement between the two parties. The court was tasked with interpreting the terms of the settlement and determining whether certain costs should be awarded on an indemnity basis or on the ordinary basis.

The primary legal issue before the court was whether to follow the general rule outlined in the Uniform Civil Procedure Rules 2005 (UCPR) that costs follow the event, or whether there were circumstances that justified ordering indemnity costs or otherwise. Specifically, the court had to decide if the offer of compromise made by the defendant under UCPR rule 42.15A warranted an order for indemnity costs or if the ordinary costs should be awarded.

The court considered the circumstances surrounding the offer of compromise and the conduct of both parties during the litigation. It was determined that the circumstances did not warrant an order for indemnity costs, and the court found that ordering costs on the ordinary basis was appropriate. The court reasoned that while the defendant's offer of compromise was not accepted, there were factors that suggested a deviation from the general rule was not necessary. These factors included the nature of the offer, the timing of the offer, and the conduct of both parties throughout the proceedings.

The final orders of the court were that costs were to be awarded on the ordinary basis only, reflecting the court's conclusion that the circumstances did not justify an order for indemnity costs. The court's decision highlights the importance of considering the specific circumstances of each case when determining the appropriate costs order.

Orders