Yu v Wei (No 3) - [2021] NSWDC 818

District Court

New South Wales

Medium Neutral Citation: Yu v Wei (No 3) [2021] NSWDC 818
Hearing dates: 11 February 2021
Date of orders: 12 February 2021
Decision date: 12 February 2021
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
No order as to the costs of the first defendant in the proceedings.

Catchwords:
COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion - Orders when proceedings involve multiple parties – Parties with same interests

Legislation Cited:
Civil Procedure Act 2005, s 98
Uniform Civil Procedure Rules 2005, r 42.1

Cases Cited:
Arian v Nguyen (2001) 33 MVR 37; [2001] NSWCA 5
Bamco Villa Pty Ltd v Montedeen Pty Ltd (Unreported, Supreme Court of Victoria, 16 March 1998, Hansen J)
BrimaudvBoston Securities EntertainmentInvestments Pty Ltd [1998] FCA 1392
David Weiping Chen v Kim Man Chan (No 2) [2009] VSCA 233
GrantvJohn Grant & Sons Pty Ltd (1954) 91 CLR 112
Interchase Corp LtdvACN 010 087 573 Pty Ltd [2000] QSC 013
King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256
Waterman v Gerling (Costs) [2005] NSWSC 1111
Yu v Wei [2020] NSWDC 647

Category: Costs
Parties: Guo Jun Yu (plaintiff)
Park Zuliang Wei (first defendant)
Top Pacific Group Pty Ltd (second defendant)
Representation:
Counsel:
Mr A J Macauley (plaintiff)
Mr F Santisi (first defendant)
Solicitors:
Zhang Shijing Lawyers (plaintiff)
GOH Lawyers (first defendant)

File Number(s): 2018/00179714
Publication restriction: None

Judgment

Introduction

Guo Jun Yu sued Park Zuliang Wei and his company, Top Pacific Group Pty Ltd. The trial comprised four days of evidence and two days of submissions. Judgment was ordered in favour of Mr Yu for $246,153.68, inclusive of interest, against Top Pacific Group, but the claim against Mr Wei was dismissed.^[1] Top Pacific Group was ordered to pay Mr Yu's costs. The costs in respect of Mr Wei were reserved.
1. Yu v Wei [2020] NSWDC 647.

Application

Mr Wei applies for an order that Mr Yu pay Mr Wei's costs.^[2] Mr Yu seeks that the court order be that there be no order as to the costs as between Mr Yu and Mr Wei or, as an alternative, that Mr Yu pay a small proportion of Mr Wei's costs.
2. First defendant’s costs submissions, undated, at [34].

Background

The judgment identified six issues for determination. They were:

“1.   Was the cheque paid for Mr Wei’s antique furniture or as part payment of an investment in the development property?
2.   Did Mr Wei agree to pay the $200,000 into the development company that purchased the property?
3.   Was Mr Wei or Top Pacific Group unjustly enriched by the payment from Mr Yu, and liable in restitution to refund the amount?
4.   Was Mr Yu entitled to claim damages from Mr Wei for any breach of…

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 Yu v Wei (No 3)

Details

AGLC: Yu v Wei (No 3) [2021] NSWDC 818
Case: [2021] NSWDC 818
Decision Date: 12 February 2021

CaseChat Overview and Summary

The case of Yu v Wei (No 3) arose in the Federal Circuit and Family Court of Australia, where the primary issue was the allocation of costs between the parties involved in the proceedings. The court was required to decide the costs incurred by the first defendant, who was aligned with the plaintiff's interests in the case. The plaintiff sought an order that the costs of the first defendant should not be payable by the plaintiff, as they were deemed to be the successful party in the proceedings. The first defendant, however, contended that they were not the unsuccessful party and should not be required to pay any costs.

The court examined the general rule that costs follow the event and considered the discretion available in allocating costs, particularly in cases involving multiple parties with aligned interests. The court recognised that the first defendant was aligned with the plaintiff's interests and had acted in a manner that was in the best interests of the plaintiff. Given this alignment and the fact that the plaintiff was the successful party, the court found that it was not appropriate to order the plaintiff to pay the costs of the first defendant. The court exercised its discretion to make no order as to the costs of the first defendant in the proceedings, recognising the unique circumstances of the case and the alignment of interests between the plaintiff and the first defendant.

The court's decision was based on the principle that costs should not be allocated in a manner that would penalise a party who has acted in the best interests of another party, particularly when their interests are aligned. The court acknowledged the alignment of interests between the plaintiff and the first defendant and determined that it would be unjust to require the plaintiff to pay the costs of the first defendant. The court's decision reflects a balanced approach to the allocation of costs in cases involving multiple parties with aligned interests, recognising the need to consider the unique circumstances of each case and the interests of all parties involved.

The final orders of the court were that no order should be made as to the costs of the first defendant in the proceedings. This decision ensures that the first defendant, who was aligned with the plaintiff's interests, is not required to pay costs that would have been payable by the plaintiff. The court's decision highlights the importance of considering the alignment of interests and the need for a balanced approach to the allocation of costs in cases involving multiple parties.

Orders

Orders of the court

No order as to the costs of the first defendant in the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Yu v Wei (No 3) [2021] NSWDC 818
Hearing dates:	11 February 2021
Date of orders:	12 February 2021
Decision date:	12 February 2021
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	No order as to the costs of the first defendant in the proceedings.
Catchwords:	COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion - Orders when proceedings involve multiple parties – Parties with same interests
Legislation Cited:	Civil Procedure Act 2005, s 98 Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited:	Arian v Nguyen (2001) 33 MVR 37; [2001] NSWCA 5 Bamco Villa Pty Ltd v Montedeen Pty Ltd (Unreported, Supreme Court of Victoria, 16 March 1998, Hansen J) BrimaudvBoston Securities EntertainmentInvestments Pty Ltd [1998] FCA 1392 David Weiping Chen v Kim Man Chan (No 2) [2009] VSCA 233 GrantvJohn Grant & Sons Pty Ltd (1954) 91 CLR 112 Interchase Corp LtdvACN 010 087 573 Pty Ltd [2000] QSC 013 King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204 Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256 Waterman v Gerling (Costs) [2005] NSWSC 1111 Yu v Wei [2020] NSWDC 647
Category:	Costs
Parties:	Guo Jun Yu (plaintiff) Park Zuliang Wei (first defendant) Top Pacific Group Pty Ltd (second defendant)
Representation:	Counsel: Mr A J Macauley (plaintiff) Mr F Santisi (first defendant) Solicitors: Zhang Shijing Lawyers (plaintiff) GOH Lawyers (first defendant)
File Number(s):	2018/00179714
Publication restriction:	None