Ye v Chen (No 2)

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.