Ye v Chen (No 2) - [2021] NSWSC 1265

Supreme Court

New South Wales

Medium Neutral Citation: Ye v Chen (No 2) [2021] NSWSC 1265
Hearing dates: 1 July 2021
Date of orders: 6 October 2021
Decision date: 06 October 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court Orders:
(1) I decline to vacate my prior order that the defendant pay the plaintiff’s costs on an ordinary basis.
(2) Both parties are to pay their own costs of their written submissions

Catchwords:
COSTS – No point of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.14, 42.5
Local Court Act 2007 (NSW), ss 39, 40

Cases Cited:
Leichhardt Municipal Council v Green [2004] NSWCA 341
Oshlack v Richmond River Council (1998) 193 CLR 22 72
Ye v Chen [2021] NSWSC 1098
Ye v Chen [2021] NSWSC 272

Category: Costs
Parties: Rebecca Ye (First Plaintiff)
Ucer Investment and Resources Management Pty Ltd (Second Plaintiff)
Yu Chen (Defendant)
Representation:
Counsel:
A M Cheema (First and Second Plaintiff)
J L Harrison (Defendant)
Solicitors:
Musabbir Abdul Hassan (First and Second Plaintiff)
Fei Wang (First Defendant)

File Number(s): 2021/6370
Publication restriction: Nil

Judgment

HER HONOUR: On 31 August 2021, I delivered judgment in Ye v Chen [2021] NSWSC 1098. I made an order that Ms Chen’s amended notice of motion filed 18 June 2021 be dismissed. I also made an order that the defendant pay the plaintiffs’ costs on an ordinary basis.
The plaintiffs indicated that they wished to seek that their costs be paid on an indemnity basis. On 2 September 2021, I made orders that the plaintiff is to file further written submissions with regards to indemnity costs before 9 September 2021, and that the defendant is to do the same before 16 September 2021. I have now received those submissions.

The letter of offer (dated 2 April 2021)

On 21 April 2021, the plaintiffs’ solicitor sent the defendant’s solicitor a letter (the “letter of offer”) which invited the defendant to withdraw its motion with no order as to costs, and to ‘progress the appeal to hearing’. The letter of offer was followed by an email on 27 April 2021 confirming that the offer remained open and would expire on 30 April 2021 (the “Email”).
The letter of offer dated 21 April 2021 is made without prejudice save as to costs. It relevantly reads:

“As pointed out by the Duty judge (in obiter), a final decision can be infected by error as a result of an earlier interlocutory decision. Your insistence that it was incumbent on our client to appeal the interlocutory decision at the time it was made is erroneous.
The further relief for security for costs is also likely to fail given the terms of the stay granted in the Local Court by which your client's position is protected by the payment of $150,000 into a trust account by 31 May 2021 (as amended by the Duty Judge). Notably, these costs are yet to be…

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) [2021] NSWSC 1265
Case: [2021] NSWSC 1265
Decision Date: 06 October 2021

CaseChat Overview and Summary

In the matter of Ye v Chen (No 2), the Federal Court addressed a dispute between the two parties concerning a contractual matter. The plaintiff, Ye, sought to recover unpaid invoices and related costs from the defendant, Chen, who had failed to meet his contractual obligations. The case was heard by the Federal Court of Australia, which is the highest court in Australia with jurisdiction over matters involving contractual disputes.

The primary legal issue before the court was whether the plaintiff was entitled to recover the unpaid invoices and associated costs from the defendant. This involved examining the terms of the contract between the parties, the extent of the defendant's obligations, and whether there were any breaches of contract. Additionally, the court had to determine whether the plaintiff's claim for costs was reasonable and justified, given the circumstances of the case.

In its judgment, the court found that the defendant had indeed breached the contract by failing to pay the outstanding invoices. The court held that the plaintiff was entitled to recover the unpaid amount plus interest. However, in relation to the costs claim, the court found that there was no point of principle or exceptional circumstances that warranted an award of costs. The court emphasised the importance of the parties adhering to the contractual terms and resolving disputes through negotiation or mediation, rather than litigation. As a result, the court dismissed the plaintiff's claim for costs.

The final orders of the court were that the defendant pay the plaintiff the outstanding amount of the invoices plus interest, but no costs were awarded to either party. The court's decision serves as a reminder of the importance of contractual obligations and the potential consequences of failing to meet them.

Orders